[Senate Hearing 107-953]
[From the U.S. Government Publishing Office]
S. Hrg. 107-953
UNDERGROUND STORAGE TANK
COMPLIANCE ACT
=======================================================================
HEARINGS
BEFORE THE
SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK, AND WASTE MANAGEMENT
AND THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
S. 1850
A BILL TO AMEND THE SOLID WASTE DISPOSAL ACT TO BRING
UNDERGROUND STORAGE TANKS INTO COMPLIANCE WITH SUBTITLE I OF THAT ACT,
TO PROMOTE CLEANUP OF LEAKING UNDERGROUND STORAGE TANKS, TO PROVIDE
SUFFICIENT RESOURCES FOR SUCH COMPLIANCE AND CLEANUP
__________
FEBRUARY 25, 2002--PASCOAG, RI
MAY 8, 2002
__________
Printed for the use of the Committee on Environment and Public Works
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WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred seventh congress
second session
JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana BOB SMITH, New Hampshire
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey BEN NIGHTHORSE CAMPBELL,
Colorado\1\
PETE V. DOMENICI, New Mexico\2\
Ken Connolly, Majority Staff Director
Dave Conover, Minority Staff Director
------
Subcommittee on Superfund, Toxics, Risk, and Waste Management
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana LINCOLN CHAFEE, Rhode Island
RON WYDEN, Oregon JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware JAMES M. INHOFE, Oklahoma
HILLARY RODHAM CLINTON, New York MICHAEL D. CRAPO, Idaho
JON S. CORZINE, New Jersey ARLEN SPECTER, Pennsylvania
1Senator Campbell resigned from the committee on April
23, 2002.
2Pursuant to S. Res. 251, Senator Domenici was
appointed to the committee on April 23, 2003.
(ii)
C O N T E N T S
----------
Page
FEBRUARY 25, 2002--PASCOAG, RI
OPENING STATEMENTS
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 1
Kennedy, Hon. Patrick, U.S. Representative from the State of
Rhode Island................................................... 5
Reed, Hon. Jack, U.S. Senator from the State of Rhode Island..... 4
WITNESSES
DeBlois, Arthur J. III, DB Companies, Pawtucket, RI, on behalf of
the Society of Independent Gasoline Marketers of America and
the National Association of Convenience Stores................. 20
Prepared statement........................................... 33
Kos, Jeff, president, Environmental Council of Rhode Island,
Providence, RI................................................. 24
Rabideau, Hon. Scott, Rhode Island State Representative,
Harrisville, RI................................................ 18
Prepared statement........................................... 32
Reilly, George, resident, Pascoag, RI............................ 7
Prepared statement........................................... 27
Reitsma, Jan, director, Rhode Island Department of Environmental
Management, Providence, RI..................................... 11
Prepared statement........................................... 29
Wallace, Michael, resident, Pascoag, RI.......................... 10
------
MAY 8, 2002
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 37
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 38
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 39
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 62
WITNESSES
Brunner, Roger, Profits Center Manager, Zurich North America..... 59
Prepared statement........................................... 89
Cope, Grant, staff attorney, U.S. Public Interest Research Group. 54
Prepared statement........................................... 73
DeBlois, Arthur J. III, president and CEO, DB Companies, Inc.,
representing the Society of Independent Gasoline Marketers of
America and the National Association of Convenience Stores..... 57
Prepared statement........................................... 83
Horinko, Marianne, Assistant Administrator, Office of Solid Waste
and Emergency Response, U.S. Environmental Protection Agency... 41
Prepared statement........................................... 62
(iii)
Perkins, Craig, director of Environmental and Public Works
Management, city of Santa Monica, CA........................... 50
Prepared statement........................................... 72
Stephenson, John, Director, Natural Resources and Environment,
U.S. General Accounting Office................................. 43
Prepared statement........................................... 67
Stiller, Kathleen, Delaware Department of Natural Resources and
Environmental Control.......................................... 56
Prepared statement........................................... 79
ADDITIONAL MATERIAL
Statements:
Golding, Randy, Tracer Research Corporation.................. 90
Marty, Shannan, Tracer Research Corporation.................. 90
Petroleum Marketers Association of America (PMAA)............ 96
UNDERGROUND STORAGE TANK COMPLIANCE ACT
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MONDAY, FEBRUARY 25, 2002
U.S. Senate,
Committee on Environment and Public Works,
Pascoag, RI.
The committee met, pursuant to notice, at 9:30 a.m. at the
Pascoag Utility District Maintenance Garage, 253 Pascoag Main
Street, Pascoag, RI, Hon. Lincoln Chafee (acting chairman of
the committee) presiding.
Present: Senator Lincoln Chafee.
Also present: Senator Jack Reed and Representative Patrick
Kennedy.
OPENING STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Chafee. Good morning, everybody. Thank you very
much for coming. I'm Senator Lincoln Chafee. With me today are
Senator Jack Reed and Representative Patrick Kennedy. This is a
hearing of the Environment and Public Works Committee, and it
is now in order.
Each of us at this table will give opening statements and
then we'll take testimony from two panels. I encourage
everybody here, to use the forms in the back of the room. Any
thoughts that you have on how we can improve the legislation,
fill out the forms and take your testimony for the Environment
and Public Works Committee. The format this morning is to hear
from the witnesses that have been designated. We do encourage
very much additional testimony from everybody here, and
certainly in between the panels and afterwards, we look forward
to sharing your thoughts. Your written testimony would go to
the committee down in Washington.
I would also like to welcome Wally Lees, the town council
president. Thank you, Council President Lees. Bill Andrews and
Ed Bonczack are here also from the town council. Thank you very
much for all your hard work all fall. You earn your money in
these type of situations. Al Palmisciano, the chair of the
Water District, is that correct? Ann Polachek, Walter Choiniere
and Bill Mageaw, if I pronounced this right.
Scott Rabideau is here, also. He's going to testify. State
Representative Scott Rabideau, Town Manager Mike Wood and Town
Solicitor Walter Kane, thank you, also, for all your hard work
over the past fall. We look forward to working with you as we
go forward.
The Senate Environment and Public Works Committee is
conducting today's field hearing to examine issues surrounding
leaking underground storage tanks and the damage they can cause
to communities. This hearing will also focus on the Underground
Storage Tank Compliance Act of 2001, which I introduced in
December. Anyone who's followed the situation in the Pascoag
will understand the severe consequences when underground
storage tanks leak and go undetected.
It is my hope that your experiences will help foster policy
changes that prevent this type of crisis from occurring again.
People affected by the gasoline additive known as ``MTBE''
frequently ask how it reached their water systems.
In 1990, Congress passed a law to require that gasoline be
mixed with additives to make it burn more cleanly. This
reformulated gasoline is used in areas that do not meet clean
air standards. MTBE was the most common additive. Although it
made significant improvements to our air, we learned the hard
way about the devastating effects it can have on groundwater if
gasoline tanks leak.
We briefly discussed actions that the Federal Government
has taken to address underground storage tanks.
In 1984, well before MTBE, Congress enacted a comprehensive
program to address the problem of leaking tanks. This was a
reaction to discover underground, or groundwater contamination
in different parts of the country and its leakage from
underground tanks. In fact, Rhode Island played a leading role
in formulating that debate, and in 1983, a 60 Minutes report
about leaking tanks in Canob Park in Richmond increased the
nation's awareness about this widespread problem. Rhode Island
has a dubious distinction in this arena.
A 1984 law imposed minimum Federal requirements for leak
detection in prevention standards for underground tanks, and
then in 1988, owners and operators of existing tank systems
were given 10 years to upgrade the place of closed tanks that
didn't meet minimum Federal requirements.
When the deadline passed 10 years later, in 1998, many
underground storage tanks still failed to meet the Federal
standards to prevent spillage, over-filling and corrosion.
As a ranking member of the Subcommittee on Superfund,
Toxics, Risk Based Management, I was concerned about the
potential problems regarding tanks. To assess this situation, I
asked the General Accounting Office to examine compliance of
tanks with Federal requirements.
Last May, the GAO concluded that approximately 76,000 tanks
have never been upgraded to meet minimum Federal standards.
In addition, GAO found that more than 200,000 tanks have
not been operated and maintained properly. GAO said that
infrequent tank inspections and limited funding are among the
contributing factors. The GAO report is back on the back table
and it's a superlative report, which I encourage everybody here
to pick up and read. In order to assist communities that
grapple with these problems and to prevent such problems from
reoccurring, I introduced the Bipartisan Underground Storage
Tank Compliance Act. It requires inspection of all underground
storage tanks every 2 years and for the first time focuses on
the training of tank operators. It simply does not make sense
to install modern protective equipment if the people who
operate them do so improperly, and that's usually leak
detection devices, that when the buzzer goes off. The 18-year-
old operator turns off the buzzer because he hasn't been
trained on what to do. The bill also provides the Federal
Government and States to improve necessary, to ensure that all
parties are meeting Federal standards. Very importantly, this
bill gives EPA the authority to prohibit delivery of fuel to
tanks that are not in compliance. Very, very important. The
existing legislation doesn't have that component. Prohibit the
delivery of fuel. If that's not a stick to get compliance, then
nothing is. It also provides $200 million to clean up the sites
contaminated by MTBE.
While my bill solely addresses the tank situation, there is
a separate effort ongoing in Congress which I support to
permanently ban the use of MTBE gasoline. Last September, I
voted for a bill on the Environment and Public Works Committee
to ban the use of MTBE while maintaining clean air benefits
that it has provided.
My underground storage bank bill was independent from that
effort, because even if we get MTBE out of the gasoline, we
still must fix the tanks so that ordinary gasoline does not
spill in the environment.
We're looking forward to the testimony of our witnesses and
grateful that the town has been proactive and willing to share
its problems in order to promote solutions.
There is a model for solving our problems, and I will
assure that will bring your experiences in place back to our
Nation's Capitol as we continue to finance these depressing
problems.
The Canob Park story in 1983 opened our eyes to the problem
in the beginning, but the MTBE crisis in Pascoag has taught us
that our work is not done.
I, once again, encourage all to submit any kind of written
testimony after today's hearing is done.
[The prepared statement of Senator Chafee follows:]
Statement of Hon. Lincoln D. Chafee, U.S. Senator from the
State of Rhode Island
Good morning. The Senate Environment and Public Works Committee is
conducting today's field hearing to examine issues surrounding leaking
underground storage tanks and the impact that they have on communities.
This hearing will also focus on the Underground Storage Tank Compliance
Act of 2001, which I introduced in December. Anyone who has followed
the situation in Pascoag will understand the severe impacts that can
occur when underground storage tanks leak and go undetected. While we
are working at the Federal, State, and local levels to bring assistance
to you, it is my hope that your experiences will help foster policy
changes that will prevent this type of crisis from reoccurring.
People affected by the gasoline additive known as MTBE frequently
ask how it reached their water systems. In 1990, Congress passed a law
to require that gasoline be mixed with additives to make it burn more
cleanly. This reformulated gasoline is used in areas that do not meet
clean air standards. In the Northeast, MTBE was the most common
additive. While it made significant improvements to our air, we learned
the hard way about the devastating effects it can have on groundwater
if gasoline storage tanks leak.
Let me briefly discuss the actions that the Federal Government has
taken to address underground storage tanks. In 1984, Congress enacted a
comprehensive program to address the problem of leaking tanks. This was
in reaction to the discovery of groundwater contamination in different
parts of the country and its linkage to underground tanks. In fact,
Rhode Island played a leading role in formulating that debate. A 1983
60 Minutes report about leaking tanks in Canob Park in Richmond
increased the nation's awareness about this widespread problem.
The 1984 law imposed minimum Federal requirements for leak
detection and prevention standards for underground tanks. In 1988,
owners and operators of existing tank systems were given 10 years to
upgrade, replace, or close tanks that didn't meet minimum Federal
requirements. As the deadline passed in December 1998, many underground
storage tanks failed to meet the Federal standards to prevent spillage,
overfilling, and corrosion.
As ranking member on the Subcommittee on Superfund, Toxics, Risk
and Waste Management, I was concerned about the potential problems
regarding tanks. To assess the situation, I asked the U.S. General
Accounting Office to examine compliance of tanks with Federal
requirements. Last May, GAO concluded that approximately 76,000 tanks
have never been upgraded to meet minimum Federal standards. In
addition, GAO found that more than 200,000 tanks are not being operated
and maintained properly. GAO cited infrequent tank inspections and
limited funding among the contributing factors.
In order to assist communities that are grappling with these
problems and to prevent such problems from reoccurring, I introduced
the bipartisan Underground Storage Tank Compliance Act. It requires the
inspection of all underground storage tanks every 2 years and for the
first time focuses on the training of tank operators. It simply does
not make sense to install modern, protective equipment if the people
who operate them do so improperly. The bill also provides the Federal
Government and States with the tools necessary to ensure that all
parties are meeting Federal standards. In addition, the legislation
emphasizes compliance of tanks owned by Federal, State, and local
governments, and provides $200 million for cleanup of sites
contaminated by MTBE.
While my bill solely addresses the tank situation, there is a
separate effort ongoing in Congress, which I support, to permanently
ban the use of MTBE in gasoline. Last September, I voted for a bill in
the Environment Committee that would ban the use of MTBE, while
maintaining the clean air benefits that it has provided. My underground
storage tank bill is independent from that effort because, even if we
get MTBE out of the gasoline, we must still fix the tanks so that
ordinary gasoline does not spoil our environment.
I am looking forward to the testimony of our witnesses. I am very
grateful that the town has been pro-active and willing to share its
problems in order to promote solutions. It is a model for solving our
problems, and I assure you that I will bring your experiences and
advice back to Washington as we continue to find answers to these
pressing questions. The Canob Park story in 1983 opened our eyes to the
problem at the beginning, but the MTBE crisis in Pascoag has taught us
that our work is not done.
Senator Chafee. Now it's my great pleasure to introduce the
senior Senator from Rhode Island, Senator Jack Reed.
OPENING STATEMENT OF HON. JACK REED, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Reed. Thank you very much, Senator Chafee. Let me
commend you for holding this hearing and for your very
proactive role on the Environment and Public Works Committee,
not just with respect to this issue, but so many other issues
that affect the environment in Rhode Island and the nation.
The past few months have, obviously, been very difficult
for the people of Pascoag. They have endured one of the most
serious drinking water crises in the State's history. The good
news, though, is that clean water is again flowing home to
homes in Pascoag. The Pascoag and Harrisville Utility
Districts, the EPA, and Rhode Island DEM are all to be
commended for making funds available to install filtration
systems, and, most importantly, to expedite the construction of
new wells in Harrisville to bring clean water to Pascoag
residents last month, but we have a lot more work to do, both
to continue removing MTBE contamination here in Pascoag and to
ensure that problems like this do not arise again.
The legislation that Senator Chafee has offered will go a
long way in improving the ability of Rhode Island and other
States to inspect underground storage tanks and cleanup
contaminated sites when leaking equipment allows contaminants
like MTBE to enter our water supplies. I'm proud to be a
cosponsor of this important legislation.
Senator Chafee and I are also co-sponsors of legislation to
phase-out the use of MTBE as a gasoline additive. While the
clean air benefits of MTBE are significant, we know now that it
poses an unacceptable risk to the water that our children
drink--that all of us drink. We need to find better ways to
protect air quality without jeopardizing our precious
groundwater supplies.
Understand the short- and long-term health impacts of
exposure to MTBE is another critical part of our effort. I've
asked the Federal Agency of Toxic Substances and Disease
Registry to conduct a public health consultation to address
concerns raised by many Pascoag residents who may have been
exposed to contaminated water last summer.
Representatives of the ATSDR will be in Pascoag next Monday
and Tuesday to meet with the public.
On Monday, March 4, from 7 p.m. to 9 p.m. at the
Burrillville High School auditorium, the Agency will hold a
public meeting to talk about health data they have collected so
far and to give residents an opportunity to voice their
concerns. To give Pascoag residents a chance to talk with
Agency personnel in a more private setting, the Agency will
also hold two public availability sessions, on Tuesday, March 5
from 2 p.m. to 3:30 p.m. and 7 p.m. to 8:30 p.m., also at the
Burrillville High School auditorium. I hope everyone will take
advantage of these sessions with ATSDR public health experts,
to get a clear picture of the extent of exposure to MTBE among
Pascoag water users.
Finally, I want to note that in addition to the
contamination issues we're dealing with in public water systems
like Pascoag's, we also face the problem of contaminants
entering private wells throughout Rhode Island.
I'm preparing legislation that will help States, like Rhode
Island, cover the cost of private well testing in areas of
suspected contamination, so that when problems arise, thousands
of our citizens who drink water from their owns well will have
some assurance that their families are not being exposed to
dangerous chemicals.
Again, let me thank Senator Chafee and also thank our
Congressman Patrick Kennedy, who in the House of
Representatives is one of the most persistent and most
effective voices for environmental quality in this country.
It's a pleasure to be with both of them this morning and to be
with the people of Pascoag.
Thank you, Senator Chafee.
OPENING STATEMENT OF HON. PATRICK KENNEDY, U.S. REPRESENTATIVE
FROM THE STATE OF RHODE ISLAND
Mr. Kennedy. Thank you, Senator Reed, and my good friend,
Senator Chafee, for your good work.
I just want to highlight, Senator Reed, your bringing up to
Burrillville the experts in this area so that they can answer
many of the questions that residents have in Burrillville about
what the long-term impact of exposure to MTBE may be, what
their health risks and what the signs behind this is, and I
commend you, Senator Reed, for you working and your office
working on making that available to the residents here in
Burrillville, and I certainly support that effort.
I also want to say that I support your effort, as with
Senator Chafee, to make sure we get funding for testing of the
private wells. I've met with many residents up here who are
concerned, as you mentioned, about whether their private wells
are contaminated. They want to be able to test their wells.
They know they're in the areas that are often affected and they
want to be able to get that testing done. The State needs the
funds necessary to conduct that testing, and I think I can look
forward to working with both you and Senator Chafee to try to
provide the funds to our Director of Department of
Environmental Management, Jan Reitsma, who is here today, so
that we can have a statewide testing program for those wells
that are in jeopardy of being contaminated.
But, most importantly, finally, let me just say, I support
what's already been said by Senator Chafee and by Senator Reed
about the efforts in the Senate to phase-out MTBE and also to
address the problem of leaking storage tanks.
Senator Chafee has been a leader in the Congress, in the
Senate on the area of brownfields, and his legislation was
passed and signed by the President. That is an area that we all
have a great deal more concern with now that we see the impact
on a personal level up here in Burrillville to residents here
in Pascoag being exposed to MTBE. Now they understand how
important the legislation that Senator Chafee has introduced is
to them, and I just want to say that I look forward to working
with my colleagues in the House to introduce companion bills in
the House that have been introduced by Senator Chafee and
Senator Reed in the Senate. I look forward to working with my
colleagues on the committees of jurisdiction, to make sure that
they are co-sponsors, and, if need be, I look forward to
sponsoring the legislation in the House.
I hope that we get some discussion about these issues in
the upcoming Congress because we know they're very important,
to not only the people here in Pascoag but to people across the
country who have faced this problem before.
I hope we also get a chance to debate issues of
International Free Trade. That had implications for us when
looking to ban MTBE. I understand our State House is now
considering banning MTBE from our gasoline here in Rhode
Island. If they were to do that, as California has done, they
would be subject to an international lawsuit by the company
that manufactures MTBE up in Canada. The company would be able
to sue the State, as it is currently taking action against
California, as, by saying that it is a violation of their free
trade provisions. In other words, it would be an imposition on
them for being able to freely trade their product. It's
incredible to me, I hope that you find it equally outrageous,
that our current trade laws permit companies that manufacture
this product, like the one in Canada, to continue to press
their product on us, despite our own reservations and
willingness to ban. It won't be banned under international law
because of free trade provisions that require it to be sold. So
that is an interesting question that we'll need to debate in
the upcoming Congress. I certainly oppose the kind of fast-
track efforts in trade that would allow these companies to
usurp our own sovereignty here in Rhode Island and other places
in our efforts to try to ban MTBE from our gasoline supply.
But, finally, let me just say, I am pleased to see some
residents here from the Pascoag District who contacted my
office and who worked closely with me so that we can get money
from our own State Resolving Fund for underground storage tank
leakage and repairing those tanks.
I also want to say that, for Steve and Cathy Knowlton, they
were wonderful advocates. I had the chance to meet with them,
as well as with Linda Monahan, Heather Covice, and Mike
Wallace, who is one of your residents testifying about this
situation.
I visited the homes when they were contaminated. I sniffed
the water. I went into the bathrooms when the showers were on
and saw for myself how toxic this smell was. As someone who
suffers from lung, pulmonary disorder and asthma, I certainly
could appreciate the concerns that many had about breathing in
the steam from this MTBE. I am very glad that you have such
great active residents here in Pascoag, who had to really fight
and fight hard to get your voices heard. I want to commend
them, because it's the essence of what active citizen
participation is all about, that they were able to knock down
my door, knock down a few other doors and finally get the needs
of the Pascoag residents met in terms of clean water supplies.
So, to all of you who worked hard on that, I commend you for
your good work, and I look forward to continuing to work with
you in order to keep Pascoag's water clean and safe for all
residents into the future. Thank you.
Senator Chafee. Thank you, Senator Reed, thank you,
Congressman Kennedy, for representing the good citizens of
Pascoag on all their issues through the years. Before we go to
the first panel, I would like to thank Ted Garille and the
Pascoag's Water Utility District for their generosity in
providing the facilities for this field hearing. Their work on
this crisis has been a true service to this community, and I
appreciate their hospitality this morning.
I would also like to thank the local Boy Scout troop for
lending us their speaker system today. I certainly appreciate
their good deed.
Our first panel consists of George Reilly and Michael
Wallace, both of whom are Pascoag residents, and Jan Reitsma,
director of the Rhode Island Department of Environmental
Management. I'm happy to have you here. Mr. Reilly, our hero,
and without your persistence, the ball wouldn't have started
rolling here. It's an amazing story of how you went down to the
Health Department, and I would like to hear your testimony.
Let's start with you. Thank you.
Mr. Reilly.
STATEMENT OF GEORGE REILLY, RESIDENT, PASCOAG, RI
Mr. Reilly. Basically, the problem arose sometime in the
middle of June 2000, after a fire leveled two houses down the
road. I noticed a funny taste and smell to the water we were
receiving from the Pascoag Utility District, which I will call
the PUD from here on in.
At first I thought it could be chlorine and called the
Water District and questioned them about the taste and odor.
The Water Department told me that they had been putting
chlorine in the water because they had drained something, I
don't remember the words they used, due to the fire. This
sounded reasonable to me, so I did nothing further at that
time.
About the middle of July, I became concerned because the
smell and odor still remained, but now it seemed more chemical
like and less like chlorine. At this point, I called PUD again
and at this time they sent someone to test my water. When I
called later for the results, I was told that the State
laboratory had said that the water was fine. Then I did nothing
further.
By the end of August, I could not take the taste anymore
and began using bottled water for cooking and drinking
purposes. So I called PUD for the third time complaining about
my water. Once again, I was told the water was free of any
bacteria and the State said it was all right. I replied that
the water may be free of whatever they were testing for, but if
they believed it was all right, then they should come up and
have a drink. I was told that would require another test. I
don't know if it was ever tested again. I did know that I could
not accept PUD's assessment of the water.
Senator Chafee. Mr. Reilly, one of the people really
interested in your testimony is in the back, I see some people
cupping their ears. So, I'm sorry to interrupt you.
Mr. Reilly. Since my wife said that she could not notice
anything wrong with the water, I decided to ask some of my
neighbors if they noticed anything strange with the water. The
first person I talked to said he could not notice anything
strange, but that his wife refused to even bathe in the water
from PUD.
At that point, I contacted a private laboratory and was
told that it would cost me thousands of dollars to have the
water tested, so I turned to the State of Rhode Island. I went
to the Department of Health and requested the test of my tap
water. What did I want to test it for, I was asked. I told
them, if I knew what I wanted to have it tested for, I wouldn't
have to have it tested, would I. The clerk handed me a yellow
price list showing what it cost to do whatever test I wanted. I
had no clue as to what I needed. The clerk, noticing my dismay,
referred me to a rack of pamphlets nearby and told me to see if
there was anything there that I might recognize as being the
problem. When I read through a number of these pamphlets, the
only thing that jumped out to me was the MTBE description. It
said MTBE was an octane enhancer added to gasoline. My last
recollection of the odor was that it smelled a little like the
odor you get when riding behind some small pick-up trucks. So I
told the clerk I wanted the basic test, which was $79, and a
test for MTBE, which was a test for $115. He then called a
chemist from the laboratory and she came down and handed me the
materials that I would need to return to the lab to test my
water. However, she said, I would have to wait for her call,
since the tests were time critical and since her computer was
down. This was a Monday or a Tuesday. She called on Thursday
and told me to take my water samples and bring them down. I
did. She told me I would hear within a few weeks of the result.
I left. Before that afternoon was out she called and advised me
not drink the water, nor bathe in it unless I had adequate
ventilation in the shower. She also advised me that the PUD
would be notified and that further testing would be required.
On Friday, the further tests were taken and PUD was
supposed to notify its customers by Saturday that they should
not use the water for drinking or cooking. I only found out
that the water was unsafe, officially, because my wife happened
to see a sign in a store window.
The MTBE problem existed for another 4\1/2\ months. I was
reimbursed for my expense.
In summary of this section, I believe the problem arose due
to a lack of concern by the PUD--I later learned that they had
received many calls, a lack of information as to what problems
can arise in a water system and a lack of resources or
resourcefulness by the PUD.
Consequences of the problems:
Health problems. Rashes, respiratory problems and
psychological problems have all been reported.
Business problems. Unable to meet the extra costs for
water, at least one business closed. Restaurant and bakeries
lost business due to resident fear of contaminated water.
Financial problems. Many residents forced to travel in
order to take baths and/or showers. Some had expensive wells
drilled. I believe that the State is going to reimburse for
extra expenses caused by the problem, but at that time no one
knew that had happened.
Weather problems. Being the fall and winter season, people
heating with steam were under a great strain.
Family problems. Relatives and friends afraid to visit or
stay over. Fearful of contamination.
Municipal problems. One village pitted against another over
water.
Problems addressed or not addressed:
No immediate help from State. Governor offers coffee.
Charitable contributions start arriving; 6 gallons of water
per week.
Citizens form action groups. Linda and Robert Monahan form
a group to keep media and citizens aware.
EPA sends grant. Governor confiscates it, except to buy a
little more water.
Underground Storage Tank Responsibility Fund used to buy
temporary filters.
Cindy Jette, Mary Ryan and others bring suit to have
contaminated wells shut down.
Judge orders shutdown and orders neighboring village to
supply water.
Some of the afterthoughts:
Why was there such a lack of immediate response or concern
by the PUD?
Why did it seem like the PUD was only interested in keeping
authority and employment instead of finding a solution to the
problem?
Why did the Governor treat the problem in such cavalier
fashion?
Why was there so little municipal involvement?
Why did the Underground Fund wait to be asked if it could
do something?
Why can business, such as Potter's, had same type of
problem in Warwick, not be subject to criminal negligence?
Why is MTBE still being added to gasoline in Rhode Island?
Is there some financial benefit?
Why have not the concerned citizens, the doers, as
mentioned above been given a hearty thank you?
Mr. Kennedy. Thank you, Mr. Reilly.
Senator Chafee. Thank you very much, Mr. Reilly, good
questions for all us.
Next is Mr. Michael Wallace. Welcome, Mr. Wallace.
STATEMENT OF MICHAEL WALLACE, RESIDENT, PASCOAG, RI
Mr. Wallace. Thank you. Everybody hear me OK? I have no
written testimony, so I'm going off the top of my head here,
having lived through this. I would like to thank Representative
Kennedy, too, for the kind words a few moments ago.
My name is Mike Wallace, father of five. I have lived here
in Pascoag for the last 15 years. I am a registered nurse.
One of my small children came home late September, said,
``Dad, there's gasoline in the water.'' Well, she is a little
nuts, like the rest of us, so I didn't pay much attention to
it. A few days later a newspaper article breaks out that our
water is contaminated. I said, ``Oh, boy, what's going on
now?''
I recently read that the water here in Pascoag within the
last year came in second nationwide for taste clarity and such.
It was pretty good stuff coming out of the faucet. Now the joke
was you couldn't smoke in the bathtub.
Shortly thereafter, a standing room only meeting was held
in the middle school. Questions could be answered and such by
dignitaries and specialists in contamination of the water.
Three or four hundred people were there. You could hear a pin
drop as people on the stage described to us what was going on
with the main water supply. They had an open microphone period
after this and people were allowed to come up and voice their
opinions. It was a daunting task to stand up in front of 400
people--not too much what I'm doing here--and it was odd that
no one had spoken together amongst themselves during the
meeting. About 30 to 40 people spoke. They had plastic bags
full of medication, photos of their dead and ill pets and
domestic animals. They all had the same story--hair loss,
memory loss, rashes, bronchitis, pneumonia, asthma.
It was one of the very warm weeks of September. My wife and
I both are nurses. We thought they were pretty strange
symptoms, all the same people, all congregated down the hallway
with 20, 30 or 40 similar stories.
We all had talked among ourselves at CVS, at the local pubs
and restaurants and pizza joints about how funny the water
tasted. No one knew what was going on. No one had an answer,
but we also had a thousand questions.
So I turned to my wife then and said, I'm getting involved
with this. Linda Monahan, a good friend of mine now, said she
was going to picket the next day. She was going to try to close
that Mobil Station. I guess we were having some trouble in
court doing that. We've got to stop the flow of this poison. So
for 8 hours the next day in the hot sun, with migraine
headaches from the gasoline fumes, at 3:30 p.m. we closed that
gasoline station, with a lot of support from the town.
We formed an ad hoc committee and organized in the wee
hours of the morning in Linda's kitchen. We said, ``We've got
to fight this. We here in Pascoag feel that we've been wounded
twice.''
I know I'm surrounded by all these politicians and such and
I'm feeling somewhat inhibited, but we felt we had been wounded
twice, first by the contamination of the water and also by the
inaction of politicians. It took a long time. I got a good look
at political inaction, but I also got a very good look at
inactive politicians. I very much appreciate what you're doing
now, but I would like to have seen this meeting 150 days ago.
We went 140 days without water. Take a small child, a baby
needing to be bathed four, five, six, seven times a day. Sit
down now in your chairs and see how you're going to do that
with a gallon of water. People are petrified to use their tap.
I'm a fairly healthy specimen, maybe a little too healthy,
but somewhere in August I developed a pneumonia. It took 5
weeks to clear, 20 days of antibiotics. Inhalers were laying
around my house like crayons. My children, my son had pneumonia
twice, bronchitis and asthma. When I take a shower, the kids go
outside because of the coughing and gagging. It was a joke
then, but it isn't a joke now. So, I'm not going to go on
anymore. My voice is shaking, but there was a pall that
descended over this community.
A pall from which no light has really come yet. Too long--
140 days without clean water coming from my tap. We never took
it for granted. We've never forgotten it. We're quite angry
over it. We're hoping with legislation like this, that not only
do the tanks get protected and the stuff stops seeping from the
tanks into the water, but also the little guy gets taken care
of. No one was thinking of us. We asked for help and we got
turned down. Not until we demonstrated on the steps of the
State House, put our face in the cameras every 5 minutes, and
thank God for the media, thank God for the newspapers and the
press keeping this story alive, and the politicians that did
get involved, but it was long in coming. We hope it never
happens again. If anything, we can learn from our hindsight,
that the little guy needs protection.
We still need to know what can happen with the long-term
health issues created by this problem here in Pascoag. We don't
know what they are, but we do need someone to take a look at
it.
Thank you very much.
Senator Chafee. Thank you.
Next is the director of DEM, Jan Reitsma.
STATEMENT OF JAN REITSMA, DIRECTOR, RHODE ISLAND DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT, PROVIDENCE, RI
Mr. Reitsma. Thank you, Senator Chafee, Senator Reed and
Congressman Kennedy for being here and for giving me the
opportunity to testify on what I believe is very timely and
important legislation, the Under Ground Storage Tank Compliance
Act of 2001.
I would like to recognize the leadership that you, Senator
Chafee, have provided on this, as well as other interests,
including the legislation on ground fields that was routinely
successful, which will make a huge difference for our ability
to clean up and redevelop ground field sites in the State.
The legislation before us now is, in fact, timely and
important because we are entering, I believe, a new phase in
our tank program. After having worked for years on making sure
that we have adequate corrosion, protection in place, and the
1998 deadline of getting obsolete tanks out of the ground and
otherwise upgraded, we're now looking at a new phase in which
we need to make sure that the complexity of operating tanks
properly is being overseen right and the funding is in place
for the State as well as the tank operators to do the right
thing. We believe that this legislation establishes much needed
criteria and priorities for this new phase in the underground
storage tank program.
I also commend you for taking this location for your
hearing here in the Village of Pascoag. We are at the epicenter
of the most serious case of MTBE contamination in Rhode Island
history. Serious release of gasoline occurred just down the
street at a facility operating underground storage tanks, less
than 1,700 feet from the sole source of drinking water. From
Labor Day 2001 to this past January, 4,000 people endured the
hardship of going without potable water and living with the
anxiety of not knowing what was going on with their health.
Through the hard work of many people and agencies at the local,
State and Federal level, we were able to bring a line and
replace their source of water, and I do think it's appropriate
to recognize the very active citizen participation which drove
a lot of the effort.
I do want to take issue with some of the characterizations
about the Governor in particular. He's not the kind of guy who
thumps his chest, but he instructed us from the very first day,
asked State agencies to get together and try to develop a
strategy.
I think what we have learned from this case is that there
is, in fact, no quick, easy solution for a situation like this,
but also that in this State, and probably in other States,
we're really not set up very well to deal with these kinds of
situations, and the other lesson is that responding to a
situation is probably not the right solution. Prevention is
what we need to focus on more and more, and that's what this
legislation I think is focusing us on.
Now, before I give you specific comments on the
legislation, a little bit of background.
We all know that underground storage tanks are used in a
very widespread way, both in the State of Rhode Island and
across the country. The majority is used for storage and
distribution of fuels, including gasoline and diesel. In the
little big State of Rhode Island alone, we have more than 3,300
registered tanks located at 1,784 locations at last count.
Senator Chafee, you've already given an overview of the
Federal level history of regulation, starting in 1984, with the
minimum requirements for tanks, later the addition of a trust
fund to help with the response to releases from leaking tanks.
The goal at the time was, as of 1988, to upgrade all of the
underground storage tanks in the country in 10 years through a
program to be implemented jointly by EPA and the States, and
that has been a very successful partnership, in part we believe
because under the partnership States had disbursed flexibility
to implement the programs in ways that made sense to their
particular situation, and the partnership has become a model
for our Federal and State Government to work together to our
common goal.
I mentioned that flexibility because you will note that
there is a theme in my comments.
In Rhode Island, at the State level, our program also
started in 1984, first as an extension of our water pollution
program. Regulations defining operational and financial
requirements were adopted in 1987. In 1994, the General
Assembly also established a cleanup account, to be funded by a
portion of the tax and gasoline sales, and this was meant to
help the financial responsibility obligations of tank owners
and operators in the State, and, finally, regulations
establishing procedures to determine eligibility and provide
for reimbursement were promulgated in 1997.
More recently, with EPA and DEM, we joined with the Review
Board for the Underground Storage Tank Financial Responsibility
Fund, that cleanup account, and we've been effective, we can
say. Since the beginning of our program, we have regulated
almost 9,000 underground storage tanks holding petroleum
products. Of that number, almost 7,000 or 80 percent have been
permanently closed. The remaining universe of tanks have been
largely upgraded to current standards, such that today 98
percent of facilities with active tanks in Rhode Island meet
regulatory standards for leak detection. Through all of this
Federal assistance has been critical.
Since 1985, EPA provided more than 3 million for our
program, which was supplemented with fees collected for owners
and operators of tanks.
In terms of leaking tanks, Rhode Island, as you, Senator
Chafee, noted has a dubious priority of providing live
experience. We have, indeed, had a lot of experience with
leaks. Pascoag was really only the most recent case. In the
history that includes 1,489 confirmed releases. Fortunately, 75
percent of that, or more than 1,100 cases, we've been
successful with complete cleanup. One hundred and twelve sites
are still being monitored to ensure that conditions continue to
improve. At 369 sites, as of this date, still have corrective
measures ongoing or still require such action. I provided more
details in the written comments, and I will repeat them here,
but I do want to know that our experience shows that impacts
from leaking tanks are a concern that we understand is--that
impacts from leaking tanks are not limited to drinking water or
to drinking water supplies. Contamination has migrated from
those drinking water supplies. The water supply is below, into
utility lines, causing risks of explosion, as well as indoor
air pollution, to the point that courthouse, businesses and
residences have been evacuated in Rhode Island, and the
associated costs have been astronomical.
Since 1987, EPA has provided another $9.5 million in
Federal funding to help us respond to leaks and to support our
program.
Since 1998, the Rhode Island Underground Storage Tank
Responsibility Fund has reimbursed tank owners and operators
for more than $21 million in expenses incurred responding to
leaks at 155 facilities through the State. We cannot even begin
to guess the cost incurred by businesses in responding to the
spills.
The specific comments of the legislation: My first comment
is flexibility and the remaining comments are a variation of
that same team.
We strongly support what we see as the primary principle of
the bill, which is to give States greater flexibility to
implement the tank program, particularly by providing more
flexibility in how we use the funds, but in particular our
ability to do more proactive work on preventing leaks. That
flexibility and proactive approach are very much needed, as we
deal with the fact that releases from underground storage tanks
continue to occur, notwithstanding the many improvements
achieved to date in operating a leak detection system, and as
we learn more about the complexity of operating tanks properly,
as well as the complexity of responding to leaks.
The second comment is on inspections, and, again, on
flexibility. The bill calls for inspections every 2 years. At
first, we were concerned we would not be able to meet that
mandate, a concern that we understand is shared by other
States. Limitations in terms of staffing and funding have
restricted our ability to inspect tanks in Rhode Island to a
frequency of only once every 6 or 7 years. Of course, we
recognize that this is a unacceptable, and it is not providing
the level of protection necessary, but we have not been able to
build on our staff to a level that would allow more frequent
inspections.
We do believe, however, that it may be an effective
alternative where we would allow qualified inspectors to
conduct the checks and monitoring and to certify compliance
subject to the State Audit Program that would consider
priorities such as this to water supplies in sensitive natural
areas.
We urge you to make sure that the legislation will provide
that kind of flexibility, in particular during the transition
period so that States can develop innovative ways to meet the
legislative goal.
The third comment affects the training. We support the
concept of better training for operators of underground storage
tank systems. We also believe that EPA is, in fact, well suited
to develop guidance, but we do know that guidance, again, must
be flexible enough to allow States to develop innovative
approaches.
Descriptive requirements may have the unintended effect of
stifling innovation, reducing our ability to respond to changes
in technology and limiting programs to the lowest common
denominator.
We urge you again to make sure that States will have
flexibility to tailor training programs to their specific needs
as well as the needs of the stakeholders in their States.
The fourth comment is on funding. We agree that EPA should
distribute, at a minimum, 80 percent of the funds appropriated.
It is our understanding, in fact, that on average EPA is
already doing this, which we applaud. Given that most States
are the primary implementers of this program, it is critical
that we continue to receive these moneys to help us continue
and expand our effort.
We also welcome provisions that would explicitly allows us
to use these funds for oversight and protection programs, areas
that we have had problems in the past. Rhode Island supports,
by the way, the allocation process EPA is critically using.
Finally, we now can support the incentives that will be
provided by awards up to $50,000 for innovative State operator
training programs and State facility compliance strategies.
Finally, and of most importance to this particular
community, we strongly endorse the one-time appropriation of
$200 million for remediation of MTBE contamination.
Our experience in the Village of Pascoag and other cases
has made one thing very clear, controlling and removing MTBE
from the environment after early release is not a simple task.
High solubility and rapid migration in Pascoag over 13 acres
make conventional treatment, such as sump and treat and vapor
extraction less effective. It is hard to bring high
concentration, which in Pascoag leaves 1,800 parts per billion,
down to the standard of 40 parts per billion. Treating large
volumes, such as 200,000 gallons per day Pascoag to that lower
level turned out to be much more costly than we estimated
originally.
Finally, we are finding that even 40 parts per billion
level does not necessarily mean that the water is, in fact,
drinkable, as odor and other problems may well persist.
In short, all signs indicate that MTBE is going to be the
major problem for UST and other State programs, it's going to
be with us for a while, and the associated costs are going to
be much higher than we may have thought.
A significant appropriation like this is not only
appropriate, but absolutely necessary.
A quick comment on the MTBE ban versus a phase-out. I do
think it's important that we make a distinction that we provide
for a position. A ban could have all kinds of unintended
consequences. I am a little bit less concerned about Canadian
companies suing us, and I hope that some new law will be made,
if necessary, in that regard, but there are other issues in
terms of infrastructure and the cost that might result, but we
truly support legislation phasing out MTBE as quickly as
possible. We also very much support legislation that would fund
the investigation into private wells, a program that we have
had a very hard time building in Rhode Island, and we are sure
the Department of Health would join in that initiative.
Thank you, again, very much for coming down to the Village
of Pascoag and providing this opportunity for comment.
Senator Chafee. Thank you, director.
Senator Reed. Thank you very much, Senator Chafee. Again, I
would like to commend you for this important hearing. Thank
you, Mr. Reilly and Mr. Wallace. Thank you so much for your
testimony and, more importantly, thank you for your efforts
together with your neighborhoods in Pascoag to reminding us of
our obligations. One of the basic obligations is providing safe
water for all of your citizens.
I'm still concerned, particularly after listening to Mr.
Wallace, about health effects, and that's why I'm pleased that
we have the Federal Agency here on March 4th and 5th at the
Burrillville High School to talk with these issues you raised.
All of this I think goes back to the point that Mr. Reitsma
made. I hope that this is not just about looking back and
critiquing, but looking ahead and preventing. That raises a
whole set of questions. I must apologize, because I have to go
ahead with Representative Kennedy down to Raytheon. Are we
organized in Rhode Island to get out if front of this issue in
terms of both DEM and the Health Department, to ensure that we
identify potential sources of contamination, particularly close
to water supplies, and take a proactive role so that we don't
rely again on citizens spending months and months and months
with a problem that we're not aware of?
Mr. Reitsma. Senator, unfortunately, I don't think we could
honestly say that we're prepared to do the right thing. Yes,
it's clear, as we have learned from this case, that we are not
set up in Rhode Island either to respond very effectively or
quickly to these kinds of situations or to effectively prevent
them from occurring again, but we did learn from this
particular case that that is what needs to be happening, and I
think a lot of things need to occur for that to become
possible. Certainly, the current State of the law is such that
local communities or local districts have the legal
responsibility to address this kind of a situation. Well, that
may be the law on the books, but it's not the reality, and we
need to deal with that. We need to work with the General
Assembly, perhaps a redefinition of the State versus local
responsibilities. Again, this legislation will be very
important. It will provide additional funding for us to shift
the two or more preventive approach and a proactive approach,
so that we don't put all of our eggs in one basket and try to
just improve the responses to leaks after they have occurred.
Senator Reed. Thank you, Senator Chafee.
Mr. Kennedy. I would like to join Senator Reed, but I do
want to bring this issue up again about the phase-out, because
right now California is being sued and the company is called
Methanex. It's able to sue under Chapter 11 of our North
Atlantic Pre-trade Agreement, NAPTA, and they brought their
first suit against a community in California that had the
similar problems that we had here in Pascoag and decided to
phase it out. California has decided to do that, but under
Chapter 11 of NAPTA the citizens of California could be
liable--get this--could be liable for the investor loss that--
the investors who have made investments into Methanex Next
Company, they could have to--they might be liable to pay those
investors for phasing-out MTBE from their gasoline, and that's
currently permitted under a free trade agreement. So, that's
not something that we could just pass a law and end, but it is
something, that if we do take up fast track this year, which I
expect the President will bring up, that we could correct this
problem by amending Chapter 11 portion of our Free Trade
Agreement. I hope and I look forward to working with my
colleagues to do that, so that we can phase it out.
Thank you, all of you for your testimony. I know many more
of you have equally compelling stories about what it was like
to wait and wait and wait for some action by your Government,
and let me just say, thank you for your leadership. I'm so
terribly sorry for what has happened to you and your families.
It's clearly affected you in so many different ways, and I
certainly hope that we can pass this legislation to prevent it
from ever happening to anybody else. I also hope that we can
get legislation passed that will help you be compensated in
some small measure for the very practical financial loss that
you have suffered. Certainly, there's no way we can reimburse
you for any of the incredible psychological and physical losses
that you've suffered as a result of this crisis. So, all we can
say to you is that we hope to take from this experience
something that will prevent anything like this from ever
happening to anyone else.
Thank you for your testimony, both of you, and for your
actions, for your persistence. I'd now like to turn it back to
Senator Chafee, and, once again, thank him for holding this
hearing and thank him for the work he is doing on this
legislation.
Senator Chafee. Thank you, Congressman. I look forward to
working with you on the companion legislation in the House.
Mr. Kennedy. Sure.
Senator Chafee. I'll give Mr. Reilly and Mr. Wallace one
more chance to get the bug worked out. We do learn from it, but
we can do better. Would you like to expound anymore, Mr.
Reilly, on just your experience with the bureaucracy and your
disappointment? We do learn from it, and I appreciate your
testimony. That's why we're here.
Mr. Reilly. Basically, no. I have nothing more to say.
Again, we were disappointed, and I think we wished that things
could have happened, but, as we said back in the beginning, as
long as it looked like someone was starting to be concerned,
starting to be involved and attempting to do something about
the problem, that's all that we're looking for. I think, as you
gentlemen have explained to me, you people are doing that, and
from my point of view, that's all. Thank you very much.
Senator Chafee. Mr. Wallace.
Mr. Wallace. I agree with Mr. Reilly. We've had enough
negativity here all these past months, so let that bubble over.
It's just an old song now. The help is long in coming, we
realize that. We can use that to help things in the future,
too. So, let's move ahead, let's work together and let's look
for that ray of hope over this dark cloud that's covered us for
so long. It's such a relief to have clean freshwater coming out
of your tap, something many of you here take for granted. You
just cannot believe. We joked a few months ago that we couldn't
drink it unless it came out of a bottle, and I'm on my second
glass. But, thank you for your help.
Mr. Kennedy. Well, I am on my first glass.
Mr. Wallace. Thank you for your help and I look forward to
working with many of you in the future. Thank you very much.
Senator Chafee. Thank you very much.
Mr. Reitsma, I would like to ask you about your experiences
with the offender in this case, Potter Mobil, and just what it
was like from the beginning to the end, in just dealing with a
tank that does leak.
Mr. Reitsma. Unfortunately, I can't provide you as many
details you might be interested in because the case is still in
the courts. As you probably know, Potter has gone into
bankruptcy, which has forced us to proceed with the
investigations and cleanup, essentially on our own, pending
decisions by the Bankruptcy Court, to what extent they might be
held responsible or not. That's not the first time we've been
involved with Mr. Potter and his business. We've had other
instances, as you well know. It's been frustrating, on the one
hand, that people who clearly have involvement in the release
of this fuel into the environment find a way not to take as
much responsibility as we would like them to take. On the other
hand, fortunately, in this case we have been able to proceed,
and I know Terry Gray is here, the assistant director of DEM,
who can give you a lot more information about how we deal with
the cleanup aspects of this particular case, and I think that
has been proceeding really well, because we all know across the
country that experiences often that the responsible parties are
either not around or plead poverty. That doesn't stop us. We
are proceeding with the cleanup. It will take many years and
many millions, or thousands being probably millions of dollars,
but even though we don't have the responsibility party in the
hot seat right now, we believe that we can achieve the cleanup,
which, by the way, is very important. Some people have argued
that we should just let the water supply go since there's no
clean water from the Harrisville district. We believe, as part
of the longer-term approach to these kinds of issues, that it's
incredibly important to get redundancy in our water system, so
cleaning up this water supply is an important goal for us and
we believe we're making pretty decent progress given the
circumstances.
Senator Chafee. OK. Thank you very much, gentlemen, for
your testimony. We'll take a short break while the next panel
gets ready to come to the table. Thank you.
[Recess.]
Senator Chafee. Can we get on with the next panel. OK, the
next panel consists of State Representative Scott Rabideau;
Arthur DeBlois from the DB Companies representing the Society
of Independent Gasoline Marketers of America and the National
Association of Convenience Stores; and Jeff Kos, president of
Environmental Council of Rhode Island. I'll let Scott start
with our State Representative here.
Scott Rabideau.
STATEMENT OF HON. SCOTT RABIDEAU, RHODE ISLAND STATE
REPRESENTATIVE, HARRISVILLE, RI
Mr. Rabideau. Thank you, Senator. I want to echo the
sentiments of everybody else. Thank you for bringing this field
hearing to Burrillville, to the Village of Pascoag.
It's important for the citizens here to know that the
elective leaders are working hard on this issue.
I want to start my testimony with a little bit of history.
Samuel Slater may have brought modern industry to New England
and the State of Rhode Island, but from 1900 until 1960, the
center of all textile industries in this country was right here
in northern Rhode Island. When you understand how the villages
in Rhode Island developed, you start to see where the water
resources became important and you start to see why your
legislation is so important. Our villages were centered around
the rivers. The rivers are the areas where we have the greatest
amount of water being stored subsurfacely. We have water called
outwash deposits along the rivers. This is true not just in
Rhode Island, but this is true throughout the northeast. I just
had the opportunity of coming back from New Hampshire. I was in
northern New Hampshire and kind of hoping Senator Smith might
be here because I was going to talk about New Hampshire for
him. I was in the towns of Colbrook, and there was another nice
town up there, Lancaster. Those towns are located right along
the Connecticut River, and when you're in those communities,
like when you're in the communities of northern Rhode Island,
you see gas stations right along the river. When you see the
gas stations along these rivers, you also know that there are
underground storage tanks. When the underground storage tanks
have problems, what's happening is they're leaching out into
aquifers, they're leaching out into soil deposits that contain
the greatest amount of potable water for our citizenry.
Your legislation to toughen the laws to improve the
reporting requirements is so critical, because all of us here
in New England have all of our storm villages and all of our
commercial districts along rivers. It's just when they
developed this portion of the country, it was the easiest way
to build roads. You followed the rivers, and, unfortunately,
the commercial development followed along the same paths, and
now we're faced with our commercial areas being located over
the most important water resources we have.
You know, we are in a drought condition right now, and I've
been telling people, whether or not this will come true, I hope
it doesn't, I believe the Providence water supply is down
somewhere in the range of 50 to 60 percent. If we don't get our
spring rains, you're going to see the need for conservation
throughout the State of Rhode Island this summer. Every time
something like that happens, you know, it's one thing to happen
to 4,000 people in the northwest corner of the State of Rhode
Island in the Village of Pascoag, but when you see the
restrictions start taking place throughout this State and
throughout New England, your job is going to become harder,
your calls are going to become more numerous and you're going
to have to explain to them the importance of conservation and
the importance of bills like this, the importance of protecting
the resource area.
MTBE, the additive that caused the problem here in Pascoag,
has just exacerbated the situation. It is one thing to have a
gasoline spill with all the nasty chemicals that are in
gasoline, but when they add an MTBE, a soluble component, a
water soluble component, the result was that it will travel
faster through the aquifers, through the soils.
If we don't have more stringent regulation of underground
storage tanks, if we don't have the Federal Government
allocating 80 percent of the money to the States, if we don't
allow the States the flexibility to use that money, the States
will be in a very difficult situation, and flexibility. I know
Director Reitsma has left, but the flexibility issue that he
talked about is very critical here.
When we had our crisis here in Pascoag, it was the ability
of our DEM to allocate some of the UST, or the Underground
Storage Tank, money to the cleanup and to the connection with
Harrisville, because the connection with Harrisville didn't
really fit the mold. Somehow, we were able to manipulate the
system, which is what good politicians do, but somehow, we were
able to manipulate that system so that the connection with
Harrisville was brought into the fold and some of the money
could be allocated toward that.
I believe your bill allows that flexibility. I believe your
bill calls for 80 percent of the money being distributed to the
States, and I would hope that your committee hears this
testimony and that your committee takes it seriously and pushes
it onto the full Senate floor, because I always look at New
England and I say, New England has 12 percent of the Senators
in the U.S. Senate. That's a big voting block where I come
from, and that voting block should be speaking with one unified
voice on this issue, because it is a more prevalent problem
here in the developed northeast. We have much greater
concentrations of business and industry located over our most
variable water resource supplies. So I hope that they hear the
voices of the people here in Pascoag today and I hope that they
do the right thing and then push this legislation on.
I thank you again.
Senator Chafee. Thank you, Representative, very much for
your testimony. In your real life job, you are a biologist, and
I understand this, and you're absolutely right, if you go west,
the past experiences is not a drop of water, not a green blade
of grass to be seen in Rhode Island, with the ponds, river and
streams everywhere, so it's much more an issue here, although
there have been MTBE spills all around the country, but in much
more worse in New England when it does occur.
The next testimony is Mr. Art DeBlois. He runs the DB
stores and gas stations and he has to deal with the individuals
that monitor the tanks, and we very much welcome your testimony
here, Mr. DeBlois.
STATEMENT OF ARTHUR J. DeBLOIS III, DB COMPANIES, PAWTUCKET,
RI, ON BEHALF OF THE SOCIETY OF INDEPENDENT GASOLINE MARKETERS
OF AMERICA AND THE NATIONAL ASSOCIATION OF CONVENIENCE STORES
Mr. DeBlois. Thank you, Senator Chafee. Good morning. My
name is Arthur J. DeBlois. I'm the president and CEO of DB
Companies, an independent motor fuels operator headquarters
here in Providence. DB Companies owns and operates 86 DB Mart
stores in Rhode Island, Massachusetts, Connecticut and in
Hudson Valley, New York. In addition, we have 84 franchise
operation locations.
I want to thank you for inviting me to testify today on
issues related to UST, that is underground storage tanks, your
bill S. 1850, the Underground Storage Tank Compliance Act of
2001.
I'm here representing the Society of Independent Gasoline
Marketers of America and the National Association of
Convenience Stores as well. SIGMA is a national trade
association of approximately 260 independent motor fuel
marketing operators in all 50 States. Our members supply over
28,000 motor fuel outlets and sell about 48 billion gallons of
gasolines and diesel annually. Approximately 30 percent of all
motor fuel sold in the nation are sold through our outlets.
NACS is a national trade association with more than 2,300
companies operating over 104,000 convenience stores nationwide
and employing about 1.4 million employees. NACS members sell
about 115 billion gallons of motor fuel annually.
First, let me state that SIGMA and NACS applaud you for
holding this UST hearing today in Pascoag and for your
leadership on this issue.
For today's hearings, the Association would like to send a
clear and strong message to the residents of Pascoag.
Responsible petroleum marketers have zero tolerance for the
kind of release that has contaminated your drinking water
supply. We're sorry for the inconvenience you've had to endure
these many months. At the same time, we have been very
longstanding and vocal advocates of vigorous enforcement of
Federal and State UST regulations.
Further, S. 1850 takes additional steps to strengthen UST
enforcement and provide more funds to address situations like
the one that has occurred here in northwest Rhode Island.
As the Senator reminded us earlier, Rhode Island has played
an interesting and key role in the history of UST regulations.
The 60 Minutes show introduced to over 30 million viewers to
the problems of leaking tanks. The narrator, Harry Reasoner,
detailed the serious groundwater contamination problems at
Canob Park, a 9-acre development in Richmond, RI, resulting
from tank leaks. The CBS news stories were some of the
catalysts that led to the enactment of the Federal Tank Law in
1984.
Much has been done in the last 18 years since that law was
passed to prevent, detect and cleanup UST releases. Rather than
having history repeat itself, SIGMA and NACS hope that the
problems faced today by the residents of Pascoag will lead to
prompt action by Congress to improve the current UST program by
enhancing the abilities of States to enforce and address tank
leaks and spills by expanding their allowable uses of the
annual congressional appropriation from the Federal Leaking
Underground Storage, or LUST fund, as it's known.
As you know, your bill includes over $460 million in new
authorizations from the nearly $2 billion and growing Federal
LUST fund.
I would like to make some connections between the situation
here in Pascoag and your Bill S. 1850. That is, how the
enactment of this bill will help to mitigate future Pascoags
from occurring? Again, I cannot over-emphasize this point. NACS
and SIGMA members do not condone the actions of the suspected
UST operator, either before or after the leak was detected.
Last May, the GAO study, which the Senator referred to,
``improved inspections and enforcement with better, safe
underground storage tanks.'' That GAO study concluded in part
that the EPA and States have failed to enforce consistently UST
requirements. GAO estimated that nearly 3 years after EPA's
deadline, the 10-year phase-in for environmentally protective
tanks, only 89 percent of those regulated USTs have been
replaced, upgraded or closed. GAO identifies State and local
governmental agencies and very small businesses as the primary
category of UST owners and operators who remain in non-
compliance. GAO also indicated that rates of ongoing UST leak
detection and compliance are lower than expected.
In this report, GAO recommended that the Congress could
take several steps to address these identified inconsistencies
from the existing UST program.
NACS and SIGMA support and continue to support these
measures from GAO's recommendation and that you have included
in S. 1850.
No. 1, authorize the use of LUST fund trust moneys by the
States for UST enforcement.
No. 2, remove restrictions on the use of the LUST trust
fund moneys by State UST funds. Permitting cleanup resources to
be deployed more quickly, thereby minimizing cleanup costs and
the environmental harm caused by a tank leak.
No. 3, provide additional funds for use by the States in
addressing high priority releases, such as those containing
MTBE, which occurred here in Pascoag.
No. 4, create a national UST data base to track, upgrade
and close USTs.
Some people here may wonder why the petroleum market
supports more infective enforcement of UST regulations. Let me
explain our position.
First, small inventory losses can become huge financial
losses to a petroleum marketer, given the slim margins that we
operate on due to competition.
Second, since EPA promulgated its UST requirements in 1988,
SIGMA and NACS members have spent hundreds of millions of
dollars complying with tank standards. My company alone has
spent over $5 million upgrading our USTs to meet the current
regulations.
Further, many people, some of the large operators as well
as some of the small two- and three-store operators, actually
closed their locations in order to meet those compliance
standards.
I testified many years ago at a hearing held by the late
Senator John Chafee, that with a 10-year phase-in requirement,
as the current UST regulations had, there was absolutely no
reason why any UST owner and operator should not be in
compliance.
Accordingly, NACS and SIGMA support the key elements of
your bill; mainly, expanding allowable uses for LUST trust fund
moneys, requiring every UST to be inspected at regular
intervals, directing EPA to publish guidelines and training the
operators in the proper operation of maintenance of USTs and
requiring EPA and States to publish strategies for ensuring
compliance for USTs owned by governmental agencies at every
level of government and providing the additional funding for
the remediation of certain high priority MTBE releases.
There is one provision in S. 1850 that SIGMA and NACS would
like to change. As introduced, your bill limits the use of the
Federal LUST trust fund moneys by State UST reimbursement
funds, like the ones we have here in Rhode Island, where the
UST owner or operator could face financial hardships but for
reimbursement. This provision, we believe, encourages non-
compliance by UST owners and operators. We believe that the
elimination of this limitation will provide the State UST fund
with more flexibility and would leverage those limited tank
remediation funds to provide for quicker cleanup.
Notwithstanding the experiences the residents of Pascoag, most
UST cleanups are managed by responsible parties, that is the
tank owners and operators and overseen by the State U.S.
implementing agencies, such as DEM. The UST Corrective Action
Program largely has worked extremely well. As Mr. Reitsma
pointed out in his testimony, over $21 million from a the Rhode
Island State UST Fund has been expended to help cleanups, and
those cleanups have gone extremely well. State UST
reimbursement funds on a national basis, have expended over $5
billion in UST cleanup. According to State data, most of the
State UST reimbursement funds are solid, although some of these
funds are paying claims at a much faster rate than the revenue
they receive. A growing concern of our members is that some
State legislators, increasingly strapped for cash, might borrow
or raid cash balances in these State UST assurance funds. This
occurred here in Rhode Island during the State's last budget
crunch in the early 1990's. Crash flow, therefore, remains
critical to the success of the State UST reimbursement funds,
and allowing the State to use some of its LUST fund trust
moneys from EPA for its UST reimbursement fund is one way to
leverage limited resources.
There is also a misconception that eliminating this
limitation means the major oil companies are going to get a
windfall. In all honesty, the major oil companies are one of
the first groups of people to fully upgrade their tanks. In
fact, removing the limitation would benefit Rhode Island's
funds and its citizens. The funds here have worked well despite
the severe funding limitations. In fact, according to State
data, from late 2000 through the middle of last year, Rhode
Island governmental entities placed a tremendous strain on the
fund with 11 governmental sites consuming close to 48 percent
of the balances. Yet, government entities don't pay into the
fund because they are a tax exempt organization. Therefore,
additional moneys from the LUST trust fund will be a boost to
Rhode Island's UST fund. UST owners and operators are much more
likely to complete tank cleanup if they know that, after they
pay the required amount, the State UST assurance fund will
timely reimburse their cleanup expenses. To state it
differently, reimbursement will become stretched out over a
long time, a UST owner or operator has an incentive to slow
down the pace of its cleanup. Thus, limiting the use of those
LUST fund moneys to State reimbursement funds will do nothing
to help them clean things up more quickly.
SIGMA and NACS also feels that removing the limitation will
assist with the cleanup of high priority releases, such as the
one in Pascoag here containing MTBE.
As a final point, I would like to note SIGMA and NACS
frustration level with the level of LUST fund appropriations.
In many instances, the per gallon excise tax that funds the
LUST fund is not passed on to the consumer by the marketer.
It's our cost of doing business. However, the Federal LUST
trust fund is now approaching an unobligated balance of $2
billion and growing. The current appropriation level is less
than the annual interest in the fund, not including the ongoing
tax burden collections that are increasing it further. The
Government has and continues to collect this fund. S. 1850,
your bill, recognizes this fact and authorizes a substantial
increase in funding.
The Association hopes that the key elements of your bill
will be enacted, and I will urge Senator Reed, once this
legislation is passed, to push hard in the Appropriations
Committee to get this increased funding level. It will do a
wealth of good for the State UST funds.
SIGMA and NACS appreciate this opportunity to present their
views on USTs and S. 1850. The Association again regrets that
Pascoag is the backdrop to this hearing and that the residents
have been inconvenienced from the release that occurred. We
look forward to working with you and members of the Senate and
Environmental and Public Works Committee on these UST
regulations. Thank you. I will be happy to answer any
questions.
Senator Chafee. Thank you, Mr. DeBlois, very much. It's
always been the situation where you have 89 percent, in this
case responsible operators, and 11 percent that haven't
complied. After 10 years, it's plenty of time to get into
compliance, and we are still 11 percent shy, and that's what
we're trying to fix with this legislation, to make sure after
10 years that we get everybody in compliance, as well as look
as to how we can better improve the existing legislation,
including a release the trust fund money, that everybody pays
into a tenth of a percent tax that now is, as you said,
fortunately, $2 million. We're getting into that money back
national communities, as you do that.
Our next testimony is from Mr. Jeff Kos, president of the
Environmental Council of Rhode Island.
STATEMENT OF JEFF KOS, PRESIDENT, ENVIRONMENTAL COUNCIL OF
RHODE ISLAND, PROVIDENCE, RI
Mr. Kos. Thank you, Senator. I am Jeff Kos, president of
the Environmental Council of Rhode Island. I, too, would like
to thank Senator Chafee and the Senate Committee on Environment
and Public Works for this field hearing and participation of
Senator Reed and Congressman Kennedy. It's very, very important
for you to come here to Pascoag to meet with interested parties
in the area so that they have a chance to attend this hearing,
and as well as those of us who are involved in various parts of
this problem.
We have a number of our members, of our 55-member
organizations who have been involved and continue to be
involved in pieces of this issue, and we will go through a few
of those as we go along.
I just wanted to take a moment to thank those residents who
have given testimony today and those others who have sent in
written testimony that we've been in touch with. It's very
important for all of us to hear the human costs and the quality
of life costs and their experiences here, so that you can learn
from them and develop together the policies that will ensure
that this doesn't happen again. As far as that's concerned, I
would like to thank Senator Chafee for S. 1850. We believe it
is a great step forward in dealing with underground storage
tank issues. As Director Reitsma of the State DEM rightly
pointed out, the flexibility and training components of this
bill will have an enormous impact in preventing incidents of
this in the future. So we do strongly support it. We have some
concerns and have had some concerns about how all of these
issues come together, and now it's been said in sort of a
cliche, that a success has many fathers and that failure is an
orphan, but in this case this failure has brought forward a lot
of people who are willing to take responsibility for pieces of
this problem and have worked together to solve these problems.
One of the issues that has come up that we have noticed, we
have members on the Underground Storage Tank Board for the
State of Rhode Island that have been problems related to
disbursement of money over the years. Some concerns about
third-party liability of the swiftness of taking care of those
issues. I hope we keep those in mind as we go forward. I would
like to thank Eugenia Marks for their service on that board. In
general, they have made a lot of progress and have done a lot
of work in dealing with these underground storage tank leaks
and compensations over the years, but there are some gaps that
need to be addressed and our followup written testimony will
deal with some of that.
We also note that a number of agencies have been dealing
with ripple effects from this spill. The Water Resources Board
is re-examining its policies related to these issues, and,
hopefully, we'll have some positive input on this. We have
heard from DEM today. At the Attorney General's office there
are several people working on MTBE-related language, and I was
very happy to hear about Senator Reed supporting and
introducing legislation on the phase-out, and I can't
underscore the importance of the language of that phase-out and
how it relates to Rhode Island's energy supply.
There are a number of bills in our State Legislator
regarding elimination or phase-out of MTBE, and I think it
makes sense for the Federal level to look at that level and to
deal with it in a way that doesn't saddle us with other
unintended consequences for phasing out MTBE, so I would like
to thank the Attorney General's office who are working on that.
There are also a number of other areas that have been noted
by our members related to the MTBE. Brown University's
Environmental Studies Department is working on a study of the
major oil company agreements, franchise and contract agreements
related to liability of the, not just the franchisee, but the
company itself, and can those agreements be typed up to include
and provide for large oil companies having some sort of
responsibility for spills like this in these communities and
for franchisees or other contract operators like Potter Mobil
to be more responsible. So, we are awaiting the results of that
study and we will certainly pass that along to the committee
when it's available.
I would like to also respond just briefly. I'm very happy
to hear some of the responses and comments from Mr. DeBlois,
and we certainly agree that responsible operators deserve as
much consideration and flexibility as possible. Unfortunately,
we do have a few irresponsible operators out there, and this
area certainly has been impacted by irresponsible operators.
We're very concerned in this case. One wonders if anything can
be done as far as regulation of some of these operators. Our
members are concerned that Potter Mobil and others can hide
behind a series of companies and prevent the collection of
moneys related to clean up. One member has referred to it as
the sort of Enron of local operators. It is an unfortunate
situation and there should be ways in which we can get at these
problems so that they're not hiding behind a series of dummy
corporations and that there's some financial responsibility to
operators who are irresponsible, and, granted, they are the
minority. As far as the issues, there are other issues, of
course, it's interrelated to our continued dependence on fossil
fuels. A number of our member organizations are working to
promote alternative fuels and tax credits for other use of
fuels, and our current energy uses are costly at a number of
levels. This incident just points out another level of personal
health and quality of life costs that we all pay for when our
current fossil fuel distributions and other services go wrong.
So I did want to thank Congressman Kennedy for bringing up some
of the other aspects, the international trade aspects of this
issue, but there are also other costs related to that. We need
to keep in mind that the Senators and others making policy, at
all levels, keep in mind that maybe we need to move in other
directions that are more protected of our economy and our
ecology.
Again, it was mentioned as far as no more--mitigation was
the word that Mr. DeBlois used on future Pascoag situations. I
would hope that it is the wish and desire of all of our members
that there be no more Pascoags and that it won't be a
mitigation issue. It's something that we together would be able
to prevent in the future, and I think your efforts, Senator
Chafee and others on the committee and others in our delegation
and at all levels in Rhode Island will ensure that there are no
more Pascoags. Thank you.
Senator Chafee. Thank you very much, Mr. Kos, and I just
add that, one important part of this bill is that it would
prohibit delivery of fuel to a noncompliant tenant. As I said
earlier, certainly that's a great stake to have, to finally
give EPA the ability of stop delivery of fuel to noncompliant
and put the offenders out of business once and for all.
I just have a couple of questions for Mr. DeBlois. You talk
about how your employees now do deal with tanks that--the alarm
system that they might have, any training they may have or
monitoring. As you said, losing inventory is very damaging for
some operating on a thin margin. If your inventory is leaking
into the groundwater, leaking anywhere, you're losing inventory
and you're losing money. How do you monitor that? Any comment
on those questions?
Mr. DeBlois. Sure. One of the things that we support in the
bill is your requirement in the bill that all operators of
underground storage tanks, whether they operate single unit, be
a government or be a business or a chain operator like
ourselves, that they have a training program in place for all
of their employees.
For instance, at our company a sales associate, which is
basically the entry level employee, comes in, he or she must go
through a 4-week training before they are allowed to operate on
their own in the store. As part of that training program, one
of the things that they must learn to do is understand what the
in tank leak monitor means, how to operate that monitor, and
if, in fact, one of those alarms goes off, what to do. As an
example of what a training program like that can do, and this
is a sad situation, at one of our own facilities in Connecticut
2 weeks ago, an elderly gentleman had a medical problem and
came through a stop sign across the street from our location,
up onto our facility, hit a car being fueled up by a young
woman, knocked the car into the gasoline pump and a small
explosion ensued because of the amount of gasoline in the
tank's car that was being filled up.
Our operator, by immediately hitting the stop button,
stopped all gasoline from flowing and thereby averted a major
catastrophe. We need to have that type of an operation. That
training is very, very necessary, because those things don't
happen when the manager is there at 2 o'clock in the afternoon.
This happened at 9:30 at night. There was a single operator on
operating the facility, he was an immigrant, yet, he
immediately responded, did exactly what he had been trained to
do and averted a catastrophic situation. So, the training
component is very important and is needed by everybody. The
larger responsible companies typically have those training
programs already in place, and that's why we support making
them required for everybody. It will be a good thing for the
industry.
Senator Chafee. Of course, taking the 4-weeks of training,
an employee also has a cost component and you just want a level
playing field, make sure everybody is doing what you're doing,
and that's also what this will require, that kind of training.
So, I appreciate very much your testimony. Scott Rabideau,
thank you for your work over the field call in the General
Assembly, and we look forward to trying to work with you on
legislation down in Washington, and thank you for your
testimony.
I'll also note that we referred several times to the GAO
report. Once again, I'll say that it's very worthwhile to read,
on the back table, the GAO report, which was commissioned last
spring and gives a wealth of information on what we can do to
prevent spills in the future. I'll also mention that Cameron
Taylor from the Environment and Public Works Committee
represent Senator James Jeffords is here, and Karen Heckleman
from the Environment and Public Works Committee representing
Senator Bob Smith in New Hampshire. Thank you. If you have any
questions or testimony and you are not able to get to me,
certainly Cameron and Karen are here to help, also.
Thank you for your participation this morning, and I look
forward to working with you in the weeks and days ahead. Thank
you. The meeting is adjourned.
[Whereupon, at 11:31 a.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow.]
Statement of George E. Reilly, Resident, Pascoag, RI
PROBLEM ARISES
Sometime in the middle of June 2001, after a fire leveled two
houses down the road, I noticed a funny taste and smell to the water we
were receiving from the Pascoag Utility District (PUD). At first I
thought it to be Chlorine and called the water district to question
them about the taste and odor. The water department told me that they
had been putting chlorine in the water because they had drained
something (I don't remember the word they used) due to the fire. This
sounded reasonable to me and so I did nothing further at that time.
About the middle of July I became concerned because the smell and
odor still remained, but now it seemed more chemical-like and less like
chlorine. At this point I called PUD again and this time they sent
someone to test my water. When I called later for the test results, I
was told that the State laboratory had said that the water was fine.
Again I did nothing further.
By the end of August, I could not take the taste anymore and began
using bottled water for cooking and drinking purposes. So I called PUD
for the third time complaining about my water. Once again, I was told
that the water was free of any bacteria and the State said it was all
right. I replied that the water may be free of whatever they were
testing for, but if they believed it was all right, then they should
come up and have a drink. I was told it would require another test. I
don't know if it was ever tested again. I did know that I could not
accept PUD's assessment of the water.
Since my wife said that she could not notice anything wrong with
the water, I decided to ask some of my neighbors if they noticed
anything strange with the water. The first person I talked to said he
could not notice anything strange but that his wife refused to even
bathe in the water from PUD.
At that point I contacted a private laboratory and was told that it
could cost me thousands of dollars to have the water tested, so I
turned to the State of Rhode Island. I went to the Department of Health
and requested a test of my tap water. What did I want it tested for I
was asked. I responded that if I knew what I wanted it tested for, I
wouldn't have to have it tested would I. The clerk handed me a yellow
price list showing what it cost for whatever test I wanted. I had no
clue as to what I needed. The clerk, noticing my dismay, referred me to
a rack of pamphlets nearby and told me to see if there was anything
there that I might recognize as being the problem. When I read through
a number of these pamphlets the only thing that jumped out to me was
the MTBE description. It said MTBE was an octane enhancer added to
gasoline. My last recollection of the odor was that it smelled a little
like the odor you get when riding behind some small pickup trucks, so I
told the clerk I wanted the basic test ($79.00) and the test for MTBE
($115.00). He then called a chemist from the laboratory and she came
down and handed me the materials that I would need to return to the lab
to test my water. However, she said, I would have to wait for her call
since the tests were time-critical and since her computer was down.
This was on a Monday or a Tuesday. She called on Thursday and told me
to take my water samples and bring them down. I did. She told me I
would hear within a few weeks of the result. I left. Before that
afternoon was out, she called and advised me not to drink the water;
nor bathe in it unless I had adequate ventilation in the shower.
She also advised me that the PUD would be notified and that a
further testing would be required. On Friday the further tests were
taken and PUD was supposed to notify its customers by Saturday that
they should not use the water for drinking or cooking. I only found out
that the water was unsafe (officially) because my wife happened to see
a sign in a store window. The MTBE problem existed for another four and
one-half months. I was reimbursed for my expense.
In summary of this section, I believe the problem arose due to: a
lack of concern by the PUD (I later learned they had received many
calls.), a lack of information as to what problems can arise in a water
system, and a lack of resources/resourcefulness by the PUD.
PROBLEM'S CONSEQUENCES
Health problems.--Rashes, respiratory problems and psychological
problems have all been reported.
Business problems.--Unable to meet the extra costs for water, at
least one business closed. Restaurant and bakeries lost business due to
resident fear of contaminated water.
Financial problems.--Many residents forced to travel in order to
take baths and/or showers. Some had expensive wells drilled. (I believe
that the State is going to reimburse for extra expense caused by the
problem, but at the time, no one knew it.)
Weather problems.--Being the fall and winter season, people heating
with steam were under a great strain.
Family problems.--Relatives and friends afraid to visit or stay
over. (Fearful of contamination) Municipal problems. One village pitted
against another over water.
PROBLEM ADDRESSED/NOT ADDRESSED
No immediate help from State. Governor offers coffee.
Charitable contributions start arriving (6 gallons of water per
week)
Citizens form action groups. Linda and Robert Monahan form group to
keep media and citizens aware.
EPA sends grant. Governor confiscates it. (except to buy a little
more water).
Underground Storage Tank Financial Responsibility Fund used to buy
temporary filters.
Cindy Jette, Mary Ryan and others bring suit to have contaminated
wells shut down.
Judge orders shutdown and orders neighboring village to supply
water.
AFTERTHOUGHTS
Why was there such a lack of immediate response or concern by the
PUD?
Why did it seem like the PUD was only interested in keeping
authority and employment instead of finding a solution to the problem?
Why did the Governor treat the problem in such cavalier fashion?
Why was there so little municipal involvement?
Why did the Underground Fund wait to be asked if it could do
something?
Why can businesses such as Potter's (had same type of problem in
Warwick) not be subject to criminal negligence?
Why is MTBE still being added to gasoline in Rhode Island? (Some
financial benefit?)
Why have not the concerned citizens (the doers) as mentioned above
been given a hearty thank you?
__________
Statement of Jan H. Reitsma, Director, Rhode Island Department of
Environmental Management
INTRODUCTION
Good Morning. My name is Jan Reitsma and I am the Director of the
Rhode Island Department of Environmental Management. Thank you for the
opportunity to testify this morning on Senate bill 1850, the
Underground Storage Tank Compliance Act of 2001. I would like to begin
by recognizing Senator Chafee's leadership in drafting and introducing
this legislation. After the many tank closures and upgrades associated
with the December 1998 deadline for corrosion protection, we have
entered a new era in operation and regulation of underground tanks.
This legislation establishes the criteria and sets the priorities for
the next generation of tanks program.
The site of this hearing is also very appropriate. As we all
probably know, Pascoag is the site of the most serious case of
contamination by methyl tertiary-butyl ether, or MTBE, in Rhode Island
history. The investigation of that contamination uncovered a serious
release of gasoline at a facility operating underground storage tanks
less than 1700 feet from the sole source of drinking water for the
Village of Pascoag. From September of 2001 to January 2002, this
village endured the hardships of going without potable water and lived
with the anxieties that the health of their families was at risk.
Through the hard work of many, many people and various government
agencies at the local, state, and Federal level, a replacement source
of water was developed. That battle was won, but the war is far from
over. The high levels of MTBE remaining in the aquifer and widespread
migration of that contamination into the community will take years and
hundreds of thousands, if not millions, of dollars to clean up.
PROGRAM BACKGROUND
The use of underground storage tanks is widespread in Rhode Island
and across the country. The majority of underground storage tanks are
used for the storage and distribution of fuels, including gasoline and
diesel fuel. In Rhode Island, there are currently approximately 3,318
registered tanks located at 1,784 locations.
In 1984, the U.S. Congress recognized the need to properly operate
and maintain underground tanks and added Subtitle I to the Resource
Conservation and Recovery Act. In 1986, Congress acknowledged the need
to respond to releases from USTs and amended RCRA to establish the
leaking underground storage tank trust fund. The Environmental
Protection Agency promulgated regulations for the UST program in 1988.
Those regulations set forth the technical requirements for tank
installation and operation, established requirements for financial
responsibility for owners and operators of tank systems, and set the
criteria for approval of State regulatory programs. This system set
clear 10-year goals for the upgrade of all underground tanks across the
country and provided the framework for an effective partnership between
EPA and the States, where the States were given discretion and
flexibility on the implementation of the program. This delegation model
is often cited as an example of how the Federal and State programs can
work together toward a common goal.
The Rhode Island underground storage tank program was formed in
1984 and originally operated as an extension of the water pollution
program. In 1993, the Department promulgated the Regulations for
Underground Storage Facilities Used for Petroleum Products and
Hazardous Materials that include specific operational requirements and
leak and spill response provisions for USTs. Prior to 1993, the
Department relied on the authorities in the Oil Pollution Control
Regulations, which served as the basis for regulating all oil spills,
including leaks from underground tanks.
In 1994, the Rhode Island legislature passed the Rhode Island
Underground Storage Tank Financial Responsibility Act. That law
established a petroleum clean up account funded by a portion of the tax
on gasoline sales to help meet the financial responsibility obligations
of tank owners and operators in the state. The Regulations for the
Underground Storage Tank Financial Responsibility Fund, which outlined
procedures for eligibility and procedures to seek reimbursement, were
promulgated in January 1997.
The partnership between EPA and DEM, and more recently the Review
Board for the Underground Storage Tank Financial Responsibility Fund,
has been very effective in Rhode Island. Since the establishment of the
program, the program has regulated 8,698 underground storage tanks
holding petroleum products. Of that number, 6,942, or 80 percent, have
been permanently closed. The remaining tank universe has largely been
upgraded to current standards, 98 percent of the facilities with active
tanks in Rhode Island meet regulatory standards for corrosion
protection and have leak detection systems.
Federal assistance has been a critical component of this effort.
Since 1985, EPA has provided over $3,100,000 in funds to support the
regulation of underground tank systems. Fees collected from owners and
operators of tank systems have supplemented these funds.
LEAKING TANKS IN RHODE ISLAND
Leaking underground storage tanks, as well as other types of spills
and releases from these facilities, can cause catastrophic impacts to
the environment and the surrounding community. We have all seen and
heard the horrible story from here in Pascoag. However, since the start
of our underground storage tank program, there have been 1489 releases
from underground tanks have been confirmed in Rhode Island. The vast
majorities of these releases, 1,117, or 75 percent, have been
completely cleaned up. Of the remainder, 112 are subject to ongoing
monitoring to ensure that conditions continue to improve. There are
currently 369 sites in Rhode Island that either have corrective
measures ongoing or require such action.
The impacts of the Pascoag contamination are serious, widespread,
and unprecedented in Rhode Island in terms of the impact on people in
the community. Over 4,000 people were left without a safe source of
drinking water for their homes. Rhode Island has had a history of
serious releases, however. One of the earliest spills on record
occurred in Richmond, Rhode Island and impacted the water supply for
the Canob Park community. Groundwater investigations in this community
are documented as far back as 1963, with the earliest suspicions of
gasoline contamination documented in 1970. This case drew national
attention as it was featured on 60 Minutes in November 1983 as one of
the first serious indications of a deeper problem with contamination
from leaking tanks. Years later, a major release at the Hendel's
facility in nearby Connecticut seriously threatened one of the water
supply wells for Westerly. In 1993, a leak was discovered at the
Willie's Texaco facility on the border of East Greenwich and North
Kingstown. That spill threatened major supply wells for the Kent County
Water Authority, the town of North Kingstown, and the Economic
Development Corporation's water supply for the Quonset Point Industrial
Park. Fortunately, after great effort and expense, the migration of
that contamination was controlled before those water supplies were
impacted.
The damage from leaking tanks is not limited to groundwater and
water supplies. In 1993, serious leaks at the Coffey's Texaco facility
in Newport and the Duva's Texaco facility in Providence caused
contamination to flow under nearby buildings and into utilities, and
vapors seeped up into these structures. In Newport, the historic
Newport County Courthouse was temporarily shut down and ventilation
systems were installed to control the vapors. At the Duva's site, a
long, difficult battle was waged to control contamination that was
seeping into utility lines in the streets. At times, the level of
gasoline vapors in those lines reached potentially explosive
conditions. In Bristol, a family had to be relocated for over a year
when gasoline vapors seeped into their basement from the Serpa's Getty
site and in Cranston, a doctor's office was impacted when vapors
migrated from the adjacent Speedy Oil gas station. Unfortunately, we
are battling the migration of contamination and vapors in Pascoag now
as well. Several structures, including a single-family home, have had
vapors from gasoline or the individual constituents, such as benzene,
detected inside.
Finally, leaking tanks can seriously impact the quality of our
environment and our quality of life. When contamination is detected in
a community, the anxiety of the residents rises as people worry about
the health and safety of their families. Property values plummet when
contamination is detected nearby. Contamination can migrate into our
natural areas and destroy their value and beauty. In Warwick, gasoline
migrated from the Potter's Mobil site and contaminated a wetland area
in the center of a residential neighborhood. Not only was the value of
the wetland diminished, but odors from the contamination caused
problems throughout that neighborhood and impacted resident's quality
of life until they were controlled.
The costs responding to these releases are astronomical. Since
1987, EPA has provided over $9,500,000 in Federal funding to Rhode
Island for response to leaking tanks and support for our leaking tanks
program. Since it became operational in 1998, the Rhode Island
Underground Storage Tank Responsibility Fund has reimbursed tank owners
and operators for $21,248,648 in expenses incurred responding to leaks
at 155 facilities throughout the State. We cannot even guess the costs
incurred by business in responding to these spills.
THE UNDERGROUND STORAGE TANK COMPLIANCE ACT OF 2001
Many, many things have changed since the underground storage tank
program was first instituted. The nation's tanks have been upgraded
with systems to protect them against corrosion and overfill. Tank
systems have leak detection equipment in place and mechanisms are in
place to provide financial assurance for response to spills and leaks.
Still, leaks are still occurring and we are struggling to identify the
resources to respond to major cases like the one here in Pascoag. New
upgraded systems are also much more complex and difficult to operate
correctly.
We strongly support what we see as the underlying principle of the
Underground Storage Tank Compliance Act of 2001, which is to give
States greater flexibility to implement the underground storage tank
program, particularly by providing more flexibility in the use of funds
to do more proactive work on preventing leaks.
We agree with the specific provision that directs EPA to distribute
at a minimum 80 percent of the funds appropriated each year from the
Leaking Underground Storage Tank Trust Fund. It is our understanding
that, on average, EPA has distributed more than 80 percent of the funds
appropriated from this account to the States. We applaud EPA for taking
that approach and believe it has been effective. Based on the
partnership I described earlier, the State programs implement the
overwhelming majority of the UST program nationally and it is critical
that funds go to the States to continue, and expand, this work.
Historically, States, including Rhode Island, have used funding
from the Leaking Tank Trust Fund for corrective action and providing
core funding for our leaking tank response program. We have continually
faced challenges funding our regulatory program to oversee the
operation of underground tanks and effectively preventing leaks. We
strongly support the new provisions in this bill that allow States to
use funds from the leaking tank trust fund to enforce State or local
tank leak detection, prevention and other requirements through State or
local programs.
The bill also speaks to the allocation process for distributing
funds among the States. Rhode Island strongly supports the allocation
process currently being used by EPA.
The bill sets a very clear mandate that all USTs regulated under
Subtitle I of RCRA be inspected every 2 years. When we first reviewed
this language, we were very concerned that we would not be able to meet
this mandate. Preliminary discussions with environmental agencies from
other States indicate that we are not alone in this concern.
Limitations on staffing and other resources have restricted our ability
to inspect tanks in Rhode Island to a frequency of once every 6 to 7
years. While we recognize that this is unacceptable and is not
providing the level of protection necessary, we have not been able to
build our staff to a level that would allow more frequent inspections.
In reviewing this concept over the past few weeks, we believe that an
effective alternative may be to license inspectors who conduct the
checks and monitoring necessary. We are considering requirements for
tank owners and operators to have their tanks inspected by a licensed
inspector on a yearly, or biennial, basis and condition operation of
the tank system on certification of a satisfactory inspection. We could
then use our own resources to audit select stations based on priorities
set over time, including risk to water supplies and sensitive natural
areas. This is one approach that we are considering in Rhode Island.
States have shown a history of being innovators in this program and
others and I am sure that many other effective alternatives will also
be considered as this bill moves forward. However, for Rhode Island,
this will be a very different approach than what is in place right now.
We hope the bill will provide flexibility during the transition period
when States look to new, innovative ways to meet this goal.
We support the concept of better training for operators of UST
systems. We also believe that EPA is well suited to develop guidance on
different methods for training operators of underground storage tanks.
However, we believe that the guidance should be flexible enough to
allow effective and innovative approaches that may be developed by
States. Prescriptive requirements on operator training programs may
have the unintended effect of stifling innovation and limiting programs
to the lowest common denominator. The bill clearly recognizes the
challenges that are faced when developing such a training program and
any effective program must be fluid enough to respond to the frequent
improvements in tank technology. Furthermore, any training program must
be clearly understood and under almost continuous implementation given
the turnover rate seen in the automotive fueling business. Given these
challenges, the States should have maximum flexibility in developing
and implementing a program that meets their needs and the needs of
their stakeholders.
The bill allows the Administrator to provide an award of up to
$50,000 if the State develops and implements a State operator training
strategy. We strongly support the concept of a ``reward'' for
innovation and program improvement.
As we are all aware, controlling and removing methyl tertiary butyl
ether (MTBE) from the environment after a release is very challenging.
Conventional treatment methods, such as pump and treat approaches and
vapor extraction, are difficult to implement due to the high solubility
of the compound and the limited effectiveness of activated carbon for
capturing the material. In Pascoag, we were treating 200,000 gallons of
water per day to remove approximately 1,800 parts per billion of MTBE.
The health advisory for drinking water is 40 ppb. Costs were much
higher than our original estimates based, in part, on the fact that the
carbon filtration units were not as effective as expected for removing
the compound and needed to be replaced much more frequently. Also,
since MTBE is so soluble in water, it migrates away from the source
much quicker than other compounds. This increases the area and
complexity of the investigation, and drives up the cost. In Pascoag,
the plume of contamination is estimated to cover over 13 acres.
We strongly support the provision in the bill that authorizes a
one-time appropriation of $200 million for the remediation of MTBE
contamination. We also support the recognition that MTBE contamination
threatens the welfare of people who may be impacted. While the various
health effects of MTBE are under continual discussion, there is no
doubt that concentrations near 40 ppb can render water undrinkable. The
taste and smell of this contaminant is distinctive and objectionable
and, in many cases, provides the secondary standard driving remediation
of these sites.
We support the provision in the bill that provides funding to
conduct inspections, issue orders, or bring actions under this
subtitle. This section of the bill also requires States to submit to
EPA a strategy to ensure compliance of tanks owned by State or local
governments with the provisions of the subtitle. In Rhode Island, the
State has instituted a program to proactively look at tanks owned or
operated by State agencies. With municipalities, we have used a mix of
compliance assistance tools and enforcement actions to ensure
compliance, with varying levels of effectiveness. This section also
allows EPA to provide an award of up to $50,000 if the State develops
and implements such a strategy. Again, we strongly support the concept
of a ``reward'' for innovation and program improvement.
SUMMARY AND CONCLUSIONS
In conclusion, we all recognize that the underground storage tank
program implemented by EPA and the states have made tremendous progress
in controlling the threats of releases Bare steel tanks are largely a
thing of the past and the majority of tank systems are equipped to
protect them from corrosion, detect leaks in a timely manner, and
prevent overfilling. However, these new systems are more complex and
difficult to operate. If not run correctly, they can provide a false
sense of security without the level of protection they are designed to
provide.
We strongly support the underlying principle of the Underground
Storage Tank Compliance Act of 2001, which is to give States greater
flexibility to implement the underground storage tank program,
particularly by providing more flexibility in the use of funds to do
more proactive work on preventing leaks.
We hope the bill will provide flexibility during the transition
period when States look to new, innovative ways to meet all the goals
of this bill. States have shown a history of being innovators in the
UST program and I am sure that many new and effective approaches will
be considered as this bill moves forward.
Thank you once again for the opportunity to comment on this
legislation and thank you once again, Senator Chafee, for your
leadership on this issue.
__________
Statement of Hon. Scott P. Rabideau, Rhode Island House of
Representatives, District 60, Burrillville
I. HISTORY OF THE PASCOAG FIRE DISTRICT
Established by Charter in 1887
Designed to create a self sufficient village by providing
fire protection, electric utility service and water
Roots are found in the history of textile mill communities
II. SUBSURFACE GEOLOGY OF AREA
Primarily two distinct glacial formations in the
Northeast; outwash and till
Outwash deposits normally follow existing or former river
basins
Volumes of surface water are normally tapped from outwash
aquifers
III. WATER RESOURCES OF HARRISVILLE AND PASCOAG
Branch River Basin Aquifer is the sole source water supply
for both villages
All existing wells draw from outwash formations within
this aquifer
Unfortunately, many thoroughfares also follow the outwash
or river basin. Colonial routes always took the path of least
resistance along waterways
Commercial and industrial development in the Northeast is
always found along the river corridors
IV. NEED FOR MORE STRINGENT COMPLIANCE FOR UNDERGROUND STORAGE TANKS
MTBE is a water soluble component of today's formulated gasoline
Service stations are historically located along river basin routes
throughout the Northeast
Leaking gasoline storage tanks pose extra threats to water supplies
since the addition of MTBE
MTBE dissolves in the groundwater and is transported much greater
distances than the other components of gasoline
Once introduced to a community water supply the results are
devastating
V. PASCOAG'S TRIALS AND TRIBULATIONS
No potable water for over 140 days
Skin rashes and other health problems reported
Loss of business revenue
Loss of financial equity in homes
Burden on already short state clean up money
__________
Statement of Arthur J. DeBlois III, on Behalf of the Society of
Independent Gasoline Marketers of America and the National Association
of Convenience Stores
Good morning, Mr. Chairman. My name is Arthur J. DeBlois. I am
president and CEO of DB Companies, Inc., an independent motor fuels
marketer headquartered here in Providence. DB Companies own and operate
86 DB Mart stores in Rhode Island, Massachusetts, Connecticut and the
Hudson Valley of New York. In addition, we have 84 franchisee-operated
locations.
Thank you for inviting me to testify today on issues related to
``USTs''--that is, underground storage tanks--and your bill, S. 1850,
the ``Underground Storage Tank Compliance Act of 2001.'' I am
representing the Society of Independent Gasoline Marketers of America
(``SIGMA'') and the National Association of Convenience Stores
(``NACS'').
SIGMA is a national trade association of approximately 260 motor
fuels marketers operating in all 50 States. SIGMA members supply over
28,000 motor fuel outlets and sell over 48 billion gallons of gasoline
and diesel annually--or approximately 30 percent of all motor fuels
sold in the nation. NACS is a national trade association of more than
2,300 companies that operate over 104,000 convenience stores nationwide
and employ 1.4 million individuals. Over 75 percent of NACS' member
companies sell motor fuels, and the convenience store industry sold
more than 115 billion gallons of motor fuels in 2000.
SIGMA and NACS applaud you for holding this UST hearing today in
Pascoag and for your leadership on this issue. Through today's hearing,
the Associations would like to send a clear and strong message to the
residents of Pascoag--responsible petroleum marketers have ``zero
tolerance'' for the kind of release that has contaminated your drinking
water supply. We are sorry for the inconvenience you have had to endure
these many months. At the same time, NACS and SIGMA have been long-
standing and vocal advocates for vigorous enforcement of Federal and
State UST regulations. Further, S. 1850 takes additional steps to
strengthen UST enforcement and provide more funds to address situations
like the one that has occurred here in northwest Rhode Island.
As an aside, I was reminded the other day that Rhode Island has
played an interesting, key role in the history of UST regulation. In
December 1983, the ``60 Minutes'' show introduced over 30 million
viewers to the problems of leaking tanks. The narrator, Harry Reasoner,
detailed the serious groundwater contamination problems in Canob Park,
a 9-acre development in Richmond, Rhode Island, resulting from service
station tank leaks. The CBS News story was one catalyst that led to the
enactment of the Federal tank law in November 1984. Much has been done
in the last 18 years to prevent, detect and clean up UST releases.
Rather than having history repeat itself, SIGMA and NACS hope that the
problems faced today by the residents of Pascoag will lead to prompt
action by Congress to improve the current UST program by enhancing the
ability of the states to enforce and address tank leaks and spills by
expanding their allowable uses of the annual congressional
appropriations from the Federal Leaking Underground Storage Tank
(``LUST'') Trust Fund. As you know, your bill includes over $460
million in new authorizations from the nearly $2 billion and growing--
LUST Trust Fund.
In the few minutes that I have been allotted to speak, I would like
to make some connections between the situation here in Pascoag and S.
1850--that is, how the enactment of S. 1850 would help to mitigate
future Pascoags from occurring. My familiarity with the facts
associated with the local MTBE contamination largely is from reading
the newspaper accounts. As a result, I am not qualified to address
specifics with the Department of Environmental Management (``DEM'')
investigation and the technical aspects of the remedy. Again, as I said
at the outset, NACS and SIGMA's members do not condone the actions of
the suspected UST operator before and after the release was detected.
Last May, the General Accounting Office (``GAO'') presented you and
Senator Robert Smith with a report, ``Improved Inspections and
Enforcement Would Better Ensure the Safety of Underground Storage
Tanks.'' GAO concluded, in part, that the U.S. Environmental Protection
Agency (``EPA'') and the states have failed to enforce consistently the
UST requirements. GAO estimated that, nearly 3 years after EPA's
deadline of the 10-year phase-in (December 22, 1998) for
environmentally protective tanks, only 89 percent of the regulated USTs
had been replaced, upgraded or closed. GAO identified State and local
governmental agencies and very small businesses as the primary
categories of UST owners and operators who remain in non-compliance.
GAO also indicated that rates for ongoing UST leak detection and
compliance are lower than expected.
In its report, GAO recommended steps that Congress could take to
address these identified inconsistencies in the existing UST program.
NACS and SIGMA have supported, and continue to support, measures that
address GAO's recommendations and that are included in S. 1850:
Authorize the use of LUST Trust Fund moneys by the states
for UST enforcement;
Remove restrictions on the use of LUST Trust Fund moneys
by State UST funds, permitting clean-up resources to be deployed faster
and minimizing clean-up costs and environmental harm from tank leak;
Provide additional funds for use by the states in
addressing high-priority releases, such as those containing MTBE; and
Create a national UST data base to track upgraded and
closed USTs.
Some persons attending today's hearing may wonder why petroleum and
convenience store marketers support effective enforcement of the UST
regulations. Let me explain our position. First, small inventory losses
become huge financial losses given our slim profit margins from intense
competition. Second, since EPA promulgated its UST requirements in
1988, SIGMA and NACS members have spent hundreds of millions of dollars
complying with the tank standards. My company spent over $5 million
upgrading our USTs. Further, many of our members, including the ``moms-
and-pops'' closed retail locations as a means of compliance. I
testified many years ago at a hearing held by the late Senator John
Chafee that, with a 10-year phase-in of the requirements, there is
absolutely no reason why any UST owner and operator should not be in
compliance.
Let me digress a moment and make a point that was best articulated
by the late Senator in December 1998 to EPA--that is, there is no
justification for EPA or the states to distinguish between private and
publicly owned tanks when it comes to protecting human health and
environment. A leak from the local public works or fire department's
tank causes the same environmental harm as a release from a retail
gasoline outlet's UST.
Accordingly, NACS and SIGMA support the key elements of your bill--
namely, expanding the allowable uses of the LUST Trust Fund moneys for
UST enforcement; requiring every UST to be inspected at regular
intervals; directing EPA to publish guidelines for training operators
in the proper operation and maintenance of USTs; requiring EPA and the
states to publish strategies for ensuring compliance for USTs owned by
governmental agencies at every level; and providing additional funding
for the remediation of certain MTBE or high-priority UST releases.
There is one provision in S. 1850 that SIGMA and NACS would like to
change. As introduced, your bill limits the use of LUST Trust Fund
moneys by State UST reimbursement funds, like the one we have here in
Rhode Island, where the UST owner or operator would face financial
hardships but for the reimbursement. This provision encourages non-
compliance by UST owners and operators. We believe that elimination of
this limitation would expedite UST clean-ups and would leverage limited
tank remediation funds.
Notwithstanding the experiences of the residents of Pascoag, most
UST cleanups are managed by responsible parties--that is, tank owners
or operators--and are overseen by State UST implementing agencies--such
as, DEM. The UST corrective action program largely has worked extremely
well.
State UST reimbursement funds, such as ours here in Rhode Island,
have expended more than $5 billion for UST clean-ups over the past
decade. According to State data, most state UST reimbursement funds are
solvent; however, some of these funds have been paying claims at a
faster rate than the revenues they receive. A growing concern from NACS
and SIGMA members is that some State legislatures, increasingly
strapped for cash, might ``borrow'' or raid the cash balances in these
State UST assurance funds. This occurred here in Rhode Island during
the State's last budget ``crunch.'' Cash flow, therefore, remains
critical to the success of the State UST reimbursement funds, and
allowing a State to use some of its LUST Trust Fund moneys from EPA for
its UST reimbursement fund is one way to leverage limited clean-up
resources.
There is also a misplaced perception that eliminating the
limitation in S. 1850 would send millions of dollars back to the major
oil companies. NACS and SIGMA do not believe that to be the case. Most
major oil companies were to first to replace their tanks, and likely
have received the bulk of any clean-up reimbursements they were owed
under the State UST assurance funds. In fact, removing the limitation
would benefit Rhode Island's fund and the citizens of the State. The
fund here has worked well despite severe funding limitations. According
to State data, from late 2000 through the middle of last year, Rhode
Island governmental entities placed a tremendous strain on the fund
with 11 governmental sites consuming close to 48 percent of the fund's
available resources. Additional moneys from the LUST Trust Fund would
be a boost to Rhode Island's UST fund.
UST owners and operators are more likely to initiate and complete
tank clean-ups if they know that, after they pay the required ``front
end'' amount, the State UST assurance fund will timely reimburse their
clean-up expenses. Stated differently, if reimbursements become
stretched out over a longer period of time, the UST owner or operator
has an incentive to slow down the pace of their clean-ups. Thus,
limiting the use of LUST Trust Fund moneys by State UST reimbursement
funds will do nothing to maintain the pace of corrective actions.
SIGMA and NACS also feel that removing the limitation also will
assist with the clean-up of high-priority releases, such as the one
here in Pascoag containing MTBE. If, for example, a small business can
avoid significant legal expenses by assigning their clean-up costs to a
State UST reimbursement fund, limited resources can be expended on
clean-ups, rather than lawyers and consultants.
As a final point, I would like to note NACS and SIGMA members'
frustration with the level of LUST Trust Fund appropriations. In many
instances, the per-gallon excise tax that funds the LUST Trust Fund is
not passed through in the marketplace to the consumer; it is a cost of
doing business. However, the LUST Trust Fund now is approaching an
unobligated balance of $2 billion, and the current level of
appropriations is less than the annual interest earned on the fund, not
including the ongoing tax collections. The Government has and is
continuing to collect a lot of money for the LUST Trust Fund. S. 1850
recognizes this fact and authorizes a substantial increase in funding.
The Associations hope that the key elements of your bill can be enacted
and the appropriators agree to increase the annual appropriations.
SIGMA and NACS appreciate this opportunity to present their views
on USTs and S. 1850. The Associations regret that Pascoag is the
backdrop for this hearing and that the residents here have been
inconvenienced from the release that occurred. We look forward to
working with you and members of the Senate Environment and Public Works
Committee on UST legislation. I hope that NACS and SIGMA might be
allowed to testify at a future legislative hearing on S. 1850 in
Washington, DC.
I will be happy to answer any questions my testimony may have
raised. Thank you, Senator.
UNDERGROUND STORAGE TANK COMPLIANCE ACT
----------
WEDNESDAY, MAY 8, 2002
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund, Toxics, Risk, and Waste
Management,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:36 p.m. in
room 406, Senate Dirksen Building, Hon. Barbara Boxer (chairman
of the subcommittee) presiding.
Present: Senators Boxer, Chafee and Inhofe.
OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. The subcommittee will come to order. We are
having a meeting of our Superfund, Toxics, Risk and Waste
Management Subcommittee where we are conducting a hearing on S.
1850, the Underground Storage Tank Compliance Act, which has
been introduced by the ranking member of the subcommittee,
Senator Lincoln Chafee.
Underground storage tanks pose a serious threat to
groundwater if they are not maintained and operated properly.
In California, we have had experience with just how much damage
can be done by leaking underground storage tanks. We will
have--is our Santa Monica person here? Thank you for being
here. We will introduce you at the second panel. We will hear
from the city of Santa Monica, a community that knows first-
hand just how devastating leaking underground storage tanks can
be.
Santa Monica estimates that the cost to clean up the damage
caused by MTBE in leaking tanks will total in the hundreds of
millions of dollars, and that is just for one little city.
Meanwhile, most of the drinking water wells are shut down.
Again, this is just the experience of one city.
There are an estimated 700,000 tanks located throughout the
country. Last summer, the GAO issued a report that raises
serious concerns about the current program to regulate
underground storage tanks. One of the study's most disturbing
findings is that as many as 200,000 tanks may not be operated
or maintained properly. The threat to drinking water and public
health, as well as the immense costs associated with cleanup,
cannot be ignored. The question we must ask now is, what do we
do about the continuing problem? I want to commend my
colleague, Senator Chafee, for taking a very important step
toward addressing what is a very real and serious threat.
Senator Chafee has introduced S. 1850. His bill increases
the tools available to deal with leak prevention, compliance
and cleanup. The bill increases the funding for underground
storage tank cleanup, including setting aside $200 million for
MTBE cleanup. I do believe this is a very good start, and I
would like to work with my colleague to do more, including
further enhancing enforcement tools and increasing the funding
levels. The problem with leaking tanks is not going to go away.
It will only get worse if efforts are not made to address the
problem as recommended by GAO.
So I look forward to hearing from the witnesses today as we
look for ways to address this threat to drinking water and
public health.
Senator Chafee.
OPENING STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Chafee. Thank you, Madam Chairwoman, especially for
holding this hearing. This is the second one. We did have a
field hearing in Rhode Island in my community Pascoag, which
did suffer a leak from an underground storage tank which also
cost many hundreds of thousands of dollars to clean up, and I
would like to thank the EPA for their grant yesterday of $1
million to help toward that cleanup. As the chair said, in
Santa Monica, tens of millions of dollars for cleanup, which we
could save by of course having a good bill that protected their
drinking water from leaking from these underground storage
tanks. It is a classic case of an ounce of prevention is worth
a pound of cure, or as my grandfather used to say, a stitch in
time saves nine.
[Laughter.]
Senator Chafee. I look forward to the testimony here. We
did have an instance, as I mentioned, in Pascoag, RI where for
4 months, the 1,200 residents were completely out of water.
They could not cook. They could not bathe. They could not
drink, obviously, for 4 months. So I felt first-hand the ire of
people that are affected by this. I would also like to point
out, although we are now debating MTBE phase-out, I still think
whether that happens or not, of course, this is a good bill,
because many of the problems have been associated with MTBE,
but nonetheless many toxins are released into the water even if
MTBE is phased out over some length of time.
So I look forward to the testimony and I thank you all for
coming here this afternoon.
Thank you, Senator Boxer.
[The prepared statement of Senator Chafee follows:]
Statement of Hon. Lincoln D. Chafee, U.S. Senator from the State of
Rhode Island
Good afternoon. I would like to thank Senator Boxer for
conducting this hearing on the Underground Storage Tank
Compliance Act of 2001. This is the second hearing before the
committee on this legislation. I conducted a field hearing in
Pascoag, RI on February 25 during which we received first-hand
testimony from people affected directly by leaking underground
storage tanks about the problems we face when gasoline and MTBE
contaminate groundwater.
I would like to provide a brief history of Federal efforts
to address underground storage tanks, so we can have a better
understanding of what is needed today. In 1984, Congress
enacted a comprehensive program to address the problem of
leaking tanks. This was in reaction to the discovery of
groundwater contamination in different parts of the country and
its linkage to underground tanks. In fact, Rhode Island played
a leading role in formulating that debate. A 1983 60 Minutes
report about leaking tanks in Canob Park in Richmond increased
the Nation's awareness about this widespread problem.
The 1984 law imposed minimum Federal requirements for leak
detection and prevention standards for underground tanks. In
1988, owners and operators of existing tank systems were given
10 years to upgrade, replace, or close tanks that didn't meet
minimum Federal requirements. As the deadline passed in
December 1998, many underground storage tanks failed to meet
the Federal standards to prevent spillage, overfilling, and
corrosion.
To assess the situation, Senator Smith and I asked the U.S.
General Accounting Office to examine compliance of tanks with
Federal requirements. Last May, GAO concluded that
approximately 76,000 tanks have never been upgraded to meet
minimum Federal standards. In addition, GAO found that more
than 200,000 tanks are not being operated and maintained
properly. GAO cited infrequent tank inspections and limited
funding among the contributing factors. These problems are
real. The Village of Pascoag, RI learned the hard way that the
problems GAO outlined are real and have serious consequences.
Twelve hundred households were without water with which to
drink, bathe, or cook for over 4 months.
In order to assist communities that are grappling with
these problems and to prevent such problems from reoccurring,
several of my colleagues and I introduced the bipartisan
Underground Storage Tank Compliance Act. It requires the
inspection of all underground storage tanks every 2 years and
for the first time focuses on the training of tank operators.
It simply does not make sense to install modern, protective
equipment if the people who operate them do so improperly. The
bill also provides the Federal Government and States with the
tools necessary to ensure that all parties are meeting Federal
standards. In addition, the legislation emphasizes compliance
of tanks owned by Federal, State, and local governments, and
provides $200 million for cleanup of sites contaminated by
MTBE.
I would like to quickly address the issue of MTBE. During
the energy debate, the Senate spent a lot of time debating the
phase-out of MTBE and the use of ethanol. I would like to
clarify that S. 1850 is independent from that effort. Assuming
Congress phases out MTBE, we must still fix the tanks so that
ordinary gasoline does not spoil our environment.
I am looking forward to hearing from our witnesses. The
testimony we received at the field hearing certainly provided
unique insight into the problems we are facing, and I know
today's panelists will do the same. I would like to especially
welcome Art DeBlois from the DB Companies in Rhode Island, who
is testifying today on behalf of SIGMA and NACS. Art, thank you
for being here today. I would also like to extend my
appreciation to Marianne Horinko for testifying today and for
yesterday's $1 million grant, which EPA provided to Pascoag, RI
to continue the MTBE cleanup. The money is very needed and very
welcome.
Senator Boxer. Thank you.
Senator Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Madam Chairwoman.
First of all, I am pleased that we are having this
subcommittee hearing and I am also pleased to be a cosponsor of
Senator Chafee's S. 1850. To date, the Federal Leaking
Underground Storage Tank Trust Fund Program has been a success
both in my home State of Oklahoma and across the Nation.
According to recent EPA estimates, approximately 90 percent of
the petroleum USTs in the Nation have been upgraded to comply
with Federal standards. This is certainly a success story,
particularly when compared to other environmental cleanup
program, that the work is not done yet.
I support S. 1850 because it will allow States to use
Federal funds to enforce the Federal UST standards. I support
this bill because it will require Federal and State agencies to
bring their USTs up to Federal standards or close them. I
support the bill because it will authorize additional funds to
be appropriated from the LUST Trust Fund.
I ask unanimous consent that my whole statement be made a
part of the record.
Senator Boxer. Without objection.
Senator Inhofe I want to add one thing, Madam Chairwoman.
I think it is significant that we at some point arrive at the
point that there is a problem. We do not want MTBEs in our
drinking water leaking in. We do not want ethanol in there
either. I think the answer, and I have always thought the
answer, is to do it with an upgrade as suggested in this
legislation. So I do support you, Senator Chafee, and I look
forward to passing this legislation.
Now, I have to say, Madam Chairwoman, that we are marking
up our Defense authorization bill at this moment, so I am not
going to be able to stay here.
Thank you very much.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator from the State
of Oklahoma
Thank you, Madam Chairwoman. I am pleased that the
subcommittee is conducting this hearing today on Senator
Chafee's underground storage tank reform legislation--S. 1850.
I am a co-sponsor of this important legislation and I look
forward to the testimony of the witnesses at the hearing today.
To date, the Federal Leaking Underground Storage Tank Trust
Fund program has been a success, both in my home State of
Oklahoma and across the Nation. According to recent EPA
estimates, approximately 90 percent of petroleum USTs in the
Nation have been upgraded to comply with Federal standards.
This is certainly a success story, particularly when compared
to other environmental clean-up programs, but the work is not
yet done.
I support S. 1850 because it will allow States to use
Federal funds to enforce the Federal UST standards. I support
this bill because it will require Federal and State agencies to
bring their USTs up to Federal standards or close them. And I
support S. 1850 because it will authorize additional funds to
be appropriated from the LUST Trust Fund.
It astounds me that the Federal LUST Trust Fund has a
balance of almost $2 billion and yet we are appropriating less
than $75 million each year for this important program. I
strongly support increased appropriations for this program so
that additional funds can be provided to the States for their
continued effective and efficiency administration of this
important environmental program.
I know a lot of discussion today will villainizing MTBE. I
think the elimination of MTBE may be a case where we better be
careful what we ask for, because we might get it. Now, while I
tried to make the fuels provision of the Energy bill better, I
still have concerns with that package. Among my concerns is the
virtual elimination of MTBE. I would observe that S. 1850's
provisions are the solution to gasoline contamination that
would make an MTBE ban unnecessary--at least in a world where
the facts mattered. Simply stated, if we fix the tanks and
thereby improve the handling of gasoline, it makes no sense to
then ban a single fuel additive among the many gasoline
components that may leak. Indeed, EPA's own Blue Ribbon Panel--
the study that arguably launched the interest in this
legislation--bluntly stated, ``The major source of groundwater
contamination appears to be releases from underground gasoline
storage systems.'' Furthermore, if these tanks are not
improved, we could start to find ethanol in our water as a
result of the ethanol mandate. Again, banning fuel additives is
not the answer to our water contamination problems, but rather
it is the leaking tanks that must be addressed.
Thank you, Madam Chairwoman, for calling this hearing. I
hope this committee will act expeditiously on S. 1850 shortly
after the conclusion of this hearing.
Senator Boxer. Thank you so much.
Our first witness today is Ms. Marianne Horinko. She
currently serves as Assistant Administrator for the Office of
Solid Waste Emergency Response at EPA; also, our second witness
on this panel, John Stephenson, currently serves as Director
for Natural Resources and Environment at the GAO. We are going
to set the clocks for 5 minutes in the hopes that we can move
it along just because we have a lot of witnesses.
So, Ms. Horinko, welcome.
STATEMENT OF MARIANNE HORINKO, ASSISTANT ADMINISTRATOR, OFFICE
OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL
PROTECTION AGENCY
Ms. Horinko. Thank you, Madam Chairwoman, Senator Chafee.
Thank you very much for this opportunity to be here today and
discuss S. 1850, the Underground Storage Tank Compliance Act of
2001.
I will briefly today highlight some of our program
accomplishments before I turn to the new challenges that we
face. With your permission, I would ask that my written
testimony be submitted for the record.
Eighteen years ago, Congress responded to the growing
problem of leading underground petroleum tanks by enacting
Subtitle I of the Resource Conservation and Recovery Act, or
RCRA. EPA, States, tribes and the private sector responded to
Congress' mandate by working together to clean up leaking tanks
and prevent future leaks. Through this strong partnership, we
have made significant progress in protecting the public from
underground storage tank problems. I would like to highlight
some of our mote noteworthy successes.
When this program was first established, there were over 2
million tanks, many of which were bare steel and corroding.
Together, EPA and the States have safely closed nearly 1.5
million of these substandard tanks. By doing so, these tanks
can no longer contaminate our drinking water, groundwater or
soil. Together, we have cleaned up about 270,000 leaking tanks,
nearly 65 percent of all leaks. Together, we have gotten
virtually all tank owners to upgrade their tanks and install
leak detection equipment. And proudest of all, because of this
effort, the number of new leaks has sharply declined from about
30,000 in 1998 to just over 6,500 last year.
Although we have made significant progress, our work is far
from finished. One of our toughest challenges is indeed MTBE,
both preventing new releases and cleaning up existing MTBE
contamination. This is a significant undertaking, especially in
communities like Long Island, Santa Monica, Lake Tahoe and
Pascoag, RI, who have lost some or all of their drinking water
due to MTBE contamination. We are working closely with these
and other communities to answer their technical questions about
MTBE and in some cases provide financial support.
MTBE is not our only challenge. Although we have made great
strides cleaning up underground tanks, we still have 150,000
releases that need to be cleaned up. The States are committed
with us to clean up these releases as quickly as possible.
Together, we are working on an initiative to accelerate
cleanups through voluntary multi-site agreements, performance-
based cleanups, and risk-based decisionmaking.
We are also looking at our cleanup challenge with an eye
toward making contaminated land available for re-use. And one
of our greatest redevelopment opportunities is old abandoned
gas stations. That is why we created USTfields, with 10 pilots
already under way and another 40 pilots to be announced this
spring. These pilots are just the beginning. Our Nation's new
brownfields law includes greater opportunities and money to
clean up and redevelop old gas stations and other abandoned
petroleum sites. The President's fiscal year 2003 budget
doubles the current funding for the brownfields program. We are
very excited and appreciative about the opportunity our new
brownfields law presents to marry environmental results with
community revitalization.
In addition to these efforts, we must also prevent future
leaks through greater compliance. Although we have made
considerable progress by getting most tank owners to install
better equipment, we must now make sure this equipment is being
operated properly. The MTBE challenge makes this even more
important. We are working closely with States on creative ways
to improve compliance through third-party inspectors, multi-
site compliance agreements, more intensive training for State
inspectors, and better guidance to gas station owners and
operators so they know how to maintain their equipment and know
what to do when a problem occurs.
Finally, over the past couple of years, we have learned
that despite our best efforts, some leaks are coming from new
and upgraded tanks. To get a better handle on the sources and
cause of these leaks, we have been working closely with States,
universities and industry, and some trends are emerging.
Although today's underground tanks are much better than older
tanks, some tough problems remain. Many problems are caused by
human error, such as failing to operate leak detection
equipment correctly or prevent spills and overfills during
delivery.
But leaks from pipes dispensers and in some cases the tanks
themselves are also a cause for concern. More work needs to be
done to fully understand the source and causes of these
problems, and more importantly, to identify appropriate
remedies.
Despite all of our efforts, we can do better, and I am
pleased that S. 1850 includes a number of provisions that can
help us improve our underground tank program. For example,
allowing the LUST funds to be used for inspections and
compliance activities will give added flexibility to EPA and
States to direct our resources to the most pressing needs.
Similarly, the bill's focus on MTBE is both timely and
appropriate, as is the focus on increasing inspections and
improving training.
As with any bill, there are provisions that need further
clarification or may have some unintended effects, and we would
be pleased to work with you and your staff to discuss these
issues in more detail.
In summary, Madam Chairwoman, Senator Chafee, we are very
pleased with the significant progress that we have made in
closing substandard tanks, improving compliance, and cleaning
up releases. Nevertheless, we do have a lot of work ahead,
particularly in light of the challenge that MTBE poses. I look
forward to working with you and other members of this committee
to address the work before us.
Madam Chairwoman, this concludes my testimony. I will be
happy to answer any questions.
Senator Boxer. Thank you.
Mr. Stephenson.
STATEMENT OF JOHN STEPHENSON, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT, U.S. GENERAL ACCOUNTING OFFICE
Mr. Stephenson. Madam Chair, Senator Chafee, I am here to
discuss GAO's report on EPA's Underground Storage Tank Program
issued to this committee last year. I think you will find that
our report suggested improvements to the program are consistent
with Senate bill 1850 being discussed at today's hearing. This
legislation is timely because reports of drinking water
contamination from gas stations continue to mount.
For example, one pollutant, MTBE, a fuel additive to reduce
emissions, has been found in numerous drinking water supplies
across the Nation, as you are well aware. MTBE contamination
poses serious health risks ranging from nausea to kidney or
liver damage, and potentially even cancer. To help prevent such
problems, Congress in 1984 established the UST Program to
protect the public from potential leaks from the then-more than
2 million tanks across the Nation.
Under the program, tank owners were required to install new
leak detection equipment by the end of 1993, and additional
equipment by the end of 1998. If these conditions were not met,
owners had to close or remove their tanks. Congress also
created a trust fund in 1986 to help cover cleanup costs. The
trust fund is replenished through a \1/10\-cent per gallon
gasoline tax, and at the end of fiscal year 2001, the fund had
a balance of about $1.7 billion, and Congress was appropriating
about $70 million a year from that fund.
Our report addresses three issues: the extent tanks were in
compliance with program requirements, how States were
inspecting tanks and enforcing requirements, and whether
upgraded tanks were still leaking. The information they now
report is based on a survey we conducted of all 50 States and
the District of Columbia. Here is what we found. About 1.5
million tanks have been permanently closed since the program
began, leaving about 693,000 active tanks. About 89 percent of
these tanks were in compliance with equipment requirements at
that time. As seen in the first chart here, compliance levels
vary from State to State. The darker the color, the lower the
compliance rate, and in the black States here, we did not have
enough data to make a conclusion about compliance.
Now, 89 percent is a fairly good compliance rate. However,
we found that almost 30 percent--more than 200,000 tanks--were
not being operated and maintained properly, thus increasing the
chances for leaks. Indeed, 15 States reported that leak
detection equipment was frequently turned off or improperly
maintained. The EPA and the States speculated that the
remaining 11 percent, or 76,000 non-compliant tanks were
probably inactive. However, our study showed that it is
extremely important to address closed or abandoned tanks
because they may continue to pose health risks.
I should point out that these statistics are often based on
best guesses because many States do not inspect their tanks
often enough to have definitive information on compliance
rates. In fact, we found that over half the States do not meet
the minimum inspection rate recommended by EPA of at least once
every 3 years. This second chart shows inspection rates by
States, with the States not meeting EPA minimum depicted in
gray and black.
We also found that most States can levy citations or fines,
but that only about half have the authority to prohibit fuel
deliveries--probably the most effective tool for ensuring
compliance with program requirements. This last chart simply
shows in white the States with the authority to prohibit
deliveries, and the gray States to not.
Finally, we found that some tanks, despite being upgraded
with the required equipment, may continue to leak. Thirty-four
States reported the potential for such leaks. At the time of
our review, EPA and some localities had studies under way to
assess the extent tanks were still leaking. In addition, EPA
was at the time considering whether tank requirements needed to
be upgraded, such as mandating double-walled tanks.
To address the problems highlighted in our report, we
recommended improved training, better inspections and
enforcement, and special attention to tanks not yet upgraded,
closed or removed. We also suggested that Congress consider
expanding use of the trust fund to include inspection and
enforcement activities in addition to clean up. By my reading,
S. 1850 is consistent with these recommendations.
Madam Chair, that concludes my statement. I will be happy
to answer any questions.
Senator Boxer. Thank you. If you could give us about 6
minutes each for questions, please. Thank you.
Ms. Horinko, you said that you were pleased with the
progress. I am not pleased with the progress so let's start
from there. And that is why I think this bill is so important,
and I want to even make it broader. I think the GAO has good
ways to do that. You have not taken a position, the
Administration, on the bill. When do you think you would?
Ms. Horinko. I do not have a precise data, Madam
Chairwoman, but I would be happy to look into that and get back
to you. I am able to say that many of the bill's provisions are
very helpful and we certainly support the general tenor and
direction of the bill.
Senator Boxer. How about the money--spending the amount of
money the Senators are working toward, which eventually reach--
I believe it is $200 million. Is that correct? How about that
part of it?
Ms. Horinko. Certainly, I support the President's budget,
which is consistent with the enacted levels of the program over
the last number of years.
Senator Boxer. I was asking you, do you support the levels
of funding that Senator Chafee is suggesting, which as you know
is a whole big jump from that, because of the size of the
problem.
Ms. Horinko. It certainly is, Madam Chairwoman, and----
Senator Boxer. I am asking what is your view on that--the
Administration's view on spending that type of resource on this
problem in our country.
Ms. Horinko. Certainly, it is important to spend a
significant amount of our resources on addressing this
challenge of MTBE, and we currently are, and the President's
budget supports that level----
Senator Boxer. Wait a minute. You say that you are spending
sufficient resources now on the problem.
Ms. Horinko. We are spending sufficient resources in light
of all the competing priorities.
Senator Boxer. OK. Well, let's put that into context for
the people. You are spending $73 million. That is your
proposal. How much is in the trust fund?
Ms. Horinko. I believe $1.7 billion.
Senator Boxer. Correct. So the trust fund which is set
aside specifically for cleaning up tanks, has $1.7 billion. You
are suggesting $73 million, and in your opinion that is
adequate.
Ms. Horinko. It is certainly adequate, Madam Chairwoman,
given all of the competing challenges that we have to face.
Senator Boxer. Wait a minute. That fund is specifically--a
trust fund--am I right, Mr. Stephenson?--to clean up these
tanks.
Mr. Stephenson. Right. For cleanup purposes.
Senator Boxer. Isn't that what it is for?
Mr. Stephenson. Yes.
Senator Boxer. Can the money be used for other competing
challenges?
Mr. Stephenson. I do not believe so.
Senator Boxer. No, it cannot. So what are you saying? You
are saying that you support $73 million out of a $1.7 billion
trust fund that is sitting there not being used, and you say
that is adequate. Well, I couldn't disagree with you more on
the point, and from what I gather, you are going to write us as
to whether or not you support this bill, but you have just said
that the President is spending enough. So clearly, you do not
support the funding formula in that bill. Is that correct?
Ms. Horinko. Well, we would be pleased to work with you on
the appropriate funding level, Madam Chairwoman. I would note
that this is the same funding level that Congress has enacted
for the past 4 years.
Senator Boxer. I am not being critical only of you, but you
are advising us. You have the budget first. We react to the
budget. Now, obviously Senator Chafee and I are going to work
very hard with the Congress. That is not--that is our job to
do. What I am asking you is what the Administration's position
is in terms of a $1.7 billion trust fund. You have been clear--
it is $73 million, and you want to work with me on the funding
levels. I suggest you work with Senator Chafee, because I
believe we need to do more since that is the point of the trust
fund.
I think the American people who live near this and the
people of Santa Monica who have lost--is it half their drinking
water supply?--half their drinking water supply. Senator Chafee
has constituents that it closed down a town. And you are
sitting on top of a trust fund you cannot spend the money any
other way. You can't. You are not supposed to.
Ms. Horinko. Well, Madam Chairwoman, if Congress in its
sole discretion decides to change the funding for the program,
we will certainly be pleased to direct it to the----
Senator Boxer. That is not the issue. This bill is an
authorizing bill that will put into law a new way of funding
that will not leave it to the discretion of either you or us.
It is going to say it is a formula base. So you cannot get out
of it that way. The President will either have to sign the bill
that we are going to pass, I hope, or veto the bill. So we need
to know if the President believes that it is right to have a
$1.7 billion trust fund for which you have taxed us in a box--
if he thinks it is right, when the problem, as Mr. Stephenson
defined it, and I just want to make sure I understand. It
looked to me like he said there were 200,000 banks that had
problems. Is that correct?
Mr. Stephenson. That were not being operated or maintained
properly, even if they had the equipment installed.
Senator Boxer. Right. I loved your idea, which I do not
know if Senator Chafee has it in his bill, that you could use
some of the funding in the trust fund for enforcement and
inspection. It is in his bill.
Mr. Stephenson. It is in there.
Senator Boxer. This is very important because under this
Administration, the enforcement teams have been cut way back,
so they do not have enough to do anything else, let alone this,
because they have cut it back, and that is the priorities.
So this, to me, is important. Speaking of promises made, I
still have not heard from you on the number of Superfund sites
that are not going to be cleaned up, and you pledged in front
of this committee to tell us. When can I expect that? I want to
know what sites are not going to be cleaned up.
Ms. Horinko. Madam Chairwoman, I believe that my staff
provided yesterday a current list of sites that are currently
under consideration.
Senator Boxer. I want to know what sites are not going to
be cleaned up. We know the list of what is going to be cleaned.
We know you are pulling back the number that was promised, and
I believe it was 60--you gave us 47. Are we to assume the
others are not being cleaned up?
Ms. Horinko. The list that we gave you, I believe Madam
Chairwoman, and I will need to check on this, is the list of
sites that are potentially under consideration for funding
decisions this year. We have not made those final decisions
yet.
Senator Boxer. When are you going to make the decisions on
Superfund cleanup?
Ms. Horinko. There are two checkpoints, Madam Chairwoman.
We give the money out as the year rolls on because construction
needs----
Senator Boxer. Well, there are 4 more months left of this
year.
Ms. Horinko. We have one more checkpoint in May, and then
actually there is a congressionally mandated holdback of $100
million to September 1. So in August, we make the decision as
to how that final $100 million will be allocated among our
sites. So on September 1, we will have a firm decision as to
what the final cleanup decisions are this year.
Senator Boxer. Well, this is unacceptable to us, and we
will not take the time of Senator Chafee's hearing now, but we
need to get the documents. We need to know what sites are not
being cleaned up and we need to know them right away. Now,
yesterday I interviewed this very nice young man, Mr. Suarez,
who is going to become Deputy Assistant Administrator for
Enforcement. And he said he would do everything in his power to
get us those names. Now, I need to tell people in communities,
I say to my friend, who are expecting Superfund cleanup whether
it is going to happen or it is not going to happen.
I have to just say there is such a pattern in this
Administration of simply not letting us know what is happening.
I have served under a lot of presidents; been here a long time.
I have not seen this before. I need to know. I need to tell
people if they are going to have Superfund cleanup or they are
not.
So again, I reiterate that what you gave us is not
adequate. What we will do is take what you gave us and we will
send you personally a letter saying what is missing from here.
But just to sum up on the leaking tanks, again, I cannot praise
my colleague enough for recognizing the fact that nobody is
doing enough on this--the Congress, the President. But that
this particular proposal this year, given the fact that there
are 200,000 problem sites, is woefully inadequate. I look
forward to working with you on your bill.
Senator Chafee.
Senator Chafee. Thank you, Madam Chairwoman.
If you think the Chairwoman is angry, you should have stood
in front of the 1,200 people in Pascoag, RI that could not
drink or cook. So it is a very, very important issue.
I am curious just--your statement had so many favorable
comments about the bill, yet it did not endorse it. Of course,
ultimately, I would like to have the President's signature on
it. It is not going to become law without it. What can we do?
Where is the opposition to the bill? What can we do to improve
it in order to get a favorable recommendation from EPA and,
significantly, from the Administration?
Ms. Horinko. Senator Chafee, my comments indeed reflect the
fact that the Administration is very positive about many of the
things that the bill does, particularly, flexibility in how we
spend the money, that we can direct the trust fund money toward
inspections, toward compliance, the focus on MTBE, which is
indeed one of the greatest challenges facing the program. Those
are all very positive things.
The things that we have concerns about are indeed very
minor. For example, the bill does require EPA and the States to
put out a large number of guidance and regulations on very
short timeframes, and we would like to work with you and your
staff to see if we can perhaps provide some more reasonable
timeframes for getting those regulations and guidance in place.
Similarly, the bill does place a few restrictions on our
ability to take compliance and enforcement actions, and we
would like to work with you to make sure that we are as free to
take those enforcement actions as we feel we need to be in the
States as well.
But overall, the Administration is very positive about the
steps that the bill is taking in terms of attacking the new
challenges that we face, particularly the MTBE contamination.
We would be pleased to sit down and work with you about some of
our concerns and how we can best address the funding
constraints that we are facing dealing with the budget, both
here in the Administration and on Capitol Hill in balancing all
of the competing, the many pressing environmental priorities
that we all face.
Senator Chafee. Well, thank you very much. I am sure we
will be working with you on that.
Did your statement reflect those concerns? I know your
entire statement was submitted for the record.
Ms. Horinko. Yes, it does.
Senator Chafee. OK, very good. Certainly, as Mr. Stephenson
said in his statement, the ultimate enforcement is to prohibit
delivery. We have had the instance in Rhode Island where it was
a chronic abuser, and we knew there were problems with a
service station, but without the hammer of being able to
prohibit delivery of gas, the problem kept going on and on. So
this is an important part of the bill is to have that element.
I should think that would help EPA a lot to have that. Is that
true? When you say one of your concerns is working out some of
the timetables on enforcement, is not that ultimately extremely
helpful to have this aspect of the bill?
Ms. Horinko. Senator Chafee, the data that we are seeing so
far in this delivery prohibition or red-tag provision is that
this is indeed a very powerful tool, a very powerful incentive
for owners and operators to maintain compliance. Some 20
States, I believe, have this red-tag authority. They are
finding it to be a very powerful tool. In extending that to all
of the States as well as Federal EPA would indeed be in fact a
powerful incentive for owners and operators to stay in
compliance.
Senator Chafee. Thank you very much.
Mr. Stephenson, thank you very much also for the report,
first of all, and for your testimony. You didn't seem to have
any opposition to the bill--am I accurate in that?
Mr. Stephenson. Yes.
Senator Chafee. Well, very good.
Thank you, Madam Chairwoman.
Senator Boxer. Thank you so much.
Ms. Horinko, I understand the city of Santa Monica is
concerned that the oil companies and other responsible parties
will not ensure a high enough level of cleanup in Santa Monica,
given all the damage that has been done. What will EPA do to
ensure Santa Monica's concerns are addressed in terms of the
level of the cleanup?
Ms. Horinko. Madam Chairwoman, I have personally been
briefed on the Santa Monica cleanup during my trip to EPA's
regional offices in San Francisco, and my regional project
managers and regional attorneys are involved at a very hands-on
level. In fact, it is unusual for Federal EPA to be involved
this directly in an underground tank cleanup as the approach
that we are taking with respect to the Santa Monica
contamination. So my folks in Region IX are very concerned that
we do the highest possible quality cleanup and that we do as
much as we can to protect the drinking water in Santa Monica. I
am proud to report that Region IX is probably our leading
region in terms of enforcement capabilities and statistics. So
you are being guarded by the best and the brightest of EPA's
enforcement folks, and they will really keep a firm hand on the
till.
Senator Boxer. Could you get back to me on what EPA will do
to ensure Santa Monica's concerns are addressed in terms of the
level of the cleanup?
Ms. Horinko. I will get back to you in writing on that.
Senator Boxer. Thank you. Thank you very much, because we
really would like to have that in writing.
I want to thank both of you. I do not have any further
questions, and I want to say to Mr. Stephenson, you did a
tremendous public service with your work. I feel that, you
know, there is an old expression, since we putting a lot of old
expressions out, you know, what you don't see can't hurt you,
but boy, these tanks--I mean, we are talking major hurt. So
what you did was important and pointing out again to us that
there is this trust fund. There isn't a money problem because
there is a trust fund, and that is what it is there for. And
for us to sit back and spend a tiny portion of that, and then
say we are pleased, I just don't buy that. Maybe there are some
members of Congress who feel that way. I hope now, because I
think Senator Chafee, and with Senator Inhofe's support and my
support, I mean, my potential support, I think we really have a
chance to build a coalition and make a difference. So thank you
both very much.
We ask the next panel to come up--Mr. Craig Perkins, who is
director of Environmental and Public Works Management for the
city of Santa Monica in my home State; Mr. Grant Cope, staff
attorney with the U.S. Public Interest Research Group; Kathleen
Stiller, subcommittee chair for the Association of State and
Territorial Solid Waste Management Officials. Ms. Stiller is
with the Delaware Department of Natural Resources and
Environmental Control in New Castle, DE. Mr. Arthur J. DeBlois
III, president and CEO of DB Companies, Inc. in Providence, RI.
He is appearing on behalf of the Society of Independent
Gasoline Marketers of America and the National Association of
Convenience Stores. Mr. Roger Brunner--is he here? Well, then I
can't say it, he is not here. But if he does get here, he is
the profits center manager at Zurich North America, East
Lansing, MI.
As I told Senator Chafee, I may have to duck out here for
another hearing. I will stay as long as I can to hear all of
you. So why don't we start with--I would love to have Santa
Monica, and then if I have some questions, maybe I could ask
them, and then I will turn the gavel over.
Mr. Perkins, welcome.
STATEMENT OF CRAIG PERKINS, DIRECTOR OF ENVIRONMENTAL AND
PUBLIC WORKS MANAGEMENT, CITY OF SANTA MONICA, CA
Mr. Perkins. Thank you. On behalf of the Mayor and the City
Council of the city of Santa Monica, I want to thank you for
the opportunity to give testimony today.
First, I would like to share with you the key lessons we
have learned from our rather painful experiences with
underground storage tanks and MTBE in Santa Monica. We are a
city of nearly 90,000 permanent residents and over 200,000
daily visitors. The city depends heavily on groundwater for our
drinking water supply. After many years of effort, by 1995 we
had been able to maximize the use of local groundwater supplies
and achieved 70 percent water self-sufficiency, and this is in
a semi-arid climate. By using our sustainable local water
resources, we were able to reduce our reliance on increasingly
scarce imported water from northern California and the Colorado
River.
This all changed in 1996 when Santa Monica was hit with a
drinking water catastrophe caused by MTBE. Within a 6-month
period in 1996, MTBE forced Santa Monica to shut down most of
its water wells. These wells accounted for one-half of the
total daily supply in Santa Monica and we must now import more
than 80 percent of our drinking water, putting further strain
on California's already fragile water supply system. The
effects of MTBE, as you well know, can be devastating. Once
released from a tank or a pipeline, MTBE travels quickly and
readily dissolves in water, unlike the other chemicals in
gasoline. MTBE has an uncanny ability to find its way into
drinking water wells. Although gasoline has been around for
decades, it is only the relatively recent addition of MTBE that
has caused widespread water contamination in Santa Monica and
elsewhere.
MTBE acts swiftly. Once discovered, MTBE levels in the
city's wells rose more quickly than any other water contaminant
we had ever encountered. MTBE strikes at the heart of public
confidence in the safety of drinking water supplies. People
will not drink water that smells and tastes like turpentine,
nor should they.
S. 1850 is a step in the right direction toward stricter
oversight of underground storage tanks and freeing up
additional financial resources to facilitate inspection,
enforcement and corrective actions. However, based on our real-
world experience in Santa Monica, we believe that S. 1850
should go much farther in some key areas. First, the allocation
of $200 million for corrective actions related to MTBE releases
is far less than what will be needed to clean up the MTBE mess
nationwide. The project cost just to clean up Santa Monica's
main well field is over $200 million. Current estimates for
total cost of nationwide MTBE cleanup are around $30 billion.
Clearly, the cost for remediation of MTBE and other water
contamination must ultimately be paid for by the polluter. But
unfortunately, those companies responsible for causing the MTBE
pollution in Santa Monica and many other communities have not
yet stepped forward to do what is right. Until they do,
significant financial assistance will be required to start the
cleanup process. Second, let's make sure that we are doing
everything that we can to keep underground storage tanks from
leaking in the first place. Even the newest underground storage
tanks leak, and the leaks are often not in the tank itself but
in the piping that connects the tank to the fuel dispensing
systems. A primary focus in S. 1850 needs to be placed on
inspection, training, and enforcement. Too often in the past,
operators of underground storage tanks have been able to act
irresponsible because the threat of enforcement was remote or
entirely nonexistent. Let's make sure that the tools and
resources are in place so that noncompliant tanks are taken out
of service and the public and the environment are better
protected.
Finally, nothing in S. 1850 should preclude Santa Monica,
any State or any other local government from seeking legal
redress, taking legal action or adopting regulations and
performance standards with respect to underground storage tanks
that are more stringent than Federal law. S. 1850 should ensure
that all storage tank installations at Federal facilities are
subject to the same requirements as everyone else. S. 1850
should provide a floor, but should not hamper State or local
governments from their efforts to protect human health and the
environment, or pursue polluters.
If S. 1850 incorporates these stronger provisions as
suggested, it can become a very significant tool, not only to
begin the cleanup of existing MTBE contamination, but to
prevent future storage tank leaks as well. The two irrefutable
facts that have emerged from Santa Monica's odyssey as the
poster child of MTBE water contamination are, first,
underground storage tanks leak; and second, it is extremely
difficult to get polluters to pay for the cleanup of their
pollution.
Please strengthen this bill so that we will all have a
better chance of not repeating the mistakes of the past, and we
need to create better options, which is what this bill is
about.
I thank you for the privilege of testifying here today.
Senator Boxer. Mr. Perkins, I want to thank you and use the
privilege of the chair and the agreement from my ranking member
to ask some questions, then turn the gavel over.
I just want to thank you for your very focused testimony.
Unfortunately, again California leads the way to this place--we
did not want to. For example, we have two very well-known
disasters from leaking tanks. Santa Monica is one, and Lake
Tahoe is the other. Have you ever seen Lake Tahoe? You know
magnificent it is. Well, we are looking at a minimum of $50
million to clean up Lake Tahoe; $200 million to clean up Santa
Monica. The GAO report said that in California, the estimate is
that between 20 percent and 70 percent of tanks are in
compliance, so that is a big jump, but even if it is as low as
30 percent not in compliance, you are talking about huge
numbers of potential catastrophes here.
So let me just say, Mr. Perkins, that on this legislation
where I am going to work very closely with my colleague and
friend, and we do work closely on environmental issues, I am so
glad that the three of us are here right now so that we can
have this conversation. I just want to make sure I present what
happened in Santa Monica in the right way.
First, we have a town here that was 70 percent self-
sufficient in drinking water. I am sure you could tell the same
story, but in California, this is unheard of, in the south. It
is all--water is imported because it never rains down there and
it is just not done that often. And so to see them go from
being 70 percent self-sufficient to now probably 100 percent
not self-sufficient or close----
Mr. Perkins. Yes, less than 20 percent.
Senator Boxer [continuing]. Less than 20 percent--from 70
percent to 20 percent is just a tragedy. We want to avoid that
for other communities, because God knows we do not have enough
clean drinking water anyway. So that is the first thing, so
your bill is so important if it has that vision of getting to
these problems before they erupt.
Second, this MTBE nightmare of traveling fast, and being so
astute at finding the point of least resistance to get into the
water supply, the fact that it is so expensive to clean up--I
want to work with my colleague on this because it seems to me
that we might want to work together on a formula that says we
will go up to the number you picked--you picked a $200 million
number--or 75 percent of what is in the trust fund if the
President deems an emergency with drinking water. In other
words, the money is there. It is a question of how much we tap
that fund. So if there was a way to leave the door open perhaps
to tap that fund up to perhaps, I say 75 percent because you do
not want to use the whole fund up. You want to save some for
new emergencies. So that is a thought I have.
You do address inspection, training and enforcement in the
bill, is that correct? Which is excellent. I think that Mr.
Perkins makes a point that as far as he is concerned, this is a
major issue because if you take the tanks out of service, if
you do a good enforcement, you find that instead of being
cavalier about it, then you remove the problem. So that is
really important. I do not think you do anything to stop legal
redress, but that is important. I don't think you do anything
on that. Is that--you are silent on that. So that is not an
issue in the bill.
So I just want to thank you very, very much, and I just had
one question, dealing with my question to Ms. Horinko. Are you
fully satisfied with EPA in the region, that they are holding
the responsible parties' feet to the fire in terms of the level
of cleanup? Or do you have some concern? Was I off the wall in
asking that question, or was it right to ask the question?
Mr. Perkins. That is a very good question. We waited a
long----
Senator Boxer. What, the question that I asked her? Or the
question I am asking you about the question I asked her? OK.
Mr. Perkins. Both are important.
Senator Boxer. Good.
Mr. Perkins. We waited a long time for people to do the
right thing in Santa Monica, meaning the people that caused the
pollution. We worked with oil companies and tried to reach a
voluntary settlement. That did not happen. We filed a lawsuit
about a year and a half ago. Within the last 6 months, we made
a critical decision in terms of how we were going to move
forward. What we decided is that we were not going to wait for
the oil companies or the EPA to decide what was in our best
interests in terms of how to clean up our water. We were going
to take control of the situation ourselves. We are moving
forward with a plan for designing and permitting and building a
treatment facility which will treat all of the water in the
groundwater basin, not just part of it which is what the oil
companies wanted to do, and we will treat it faster, rather
than waiting for years and years and years, which is the
cheapest way for the contamination to be cleaned up. If we do
not do that, what we are going to get is the path of least
resistance, the path of the least impact on the bottom line of
the polluting companies, and Santa Monica does not find that
acceptable. So we are going to take control of our destiny and
make sure it is done right. The EPA does not necessarily agree
with that right now, but we are moving forward.
Senator Boxer. So the EPA does not necessarily agree with
that, is what you are telling me.
Mr. Perkins. That is right.
Senator Boxer. But you are working on them?
Mr. Perkins. We are doing what needs to be done,
regardless.
Senator Boxer. OK.
Mr. Perkins. We have the authority to do that.
Senator Boxer. Which is your point you made to Senator
Chafee about making sure that we do not do anything unwittingly
in the bill that would cause us to do a lesser cleanup. I think
that is important.
Well, let me just say, as soon as I receive the letter from
Ms. Horinko, and I hope she does it faster than she did the one
on Superfund, but we will work with her. We get that letter
outlining what they are doing to ensure the highest level--can
I share it with you? At that point, if she does not come in
where you are coming in on this, I will take it up with them
because I do not want you out there having to pay all this, and
to be out all this, because it is not right. So we will work
together.
I want to thank my colleague for writing this bill, for
focusing our attention on this important issue. I am real proud
to serve with him, and I will turn over the gavel to you, and
do not take too much advantage of it, Mr. Chafee.
[Laughter.]
Senator Boxer. Let's not hold an election for who is going
to be the committee chair and all that right now. I have your
word.
Senator Chafee. You do.
Senator Boxer. OK, then I trust you. Very good.
Senator Chafee. We are of the opposite parties, after all.
Senator Boxer. That is right. Keep that in mind.
Senator Chafee. What was the cleanup cost, before I go on
with the rest of the panel, when you say to implement this
cleanup that you wanted to do that was in some dispute with
EPA? What is the cost? In your testimony it was $200 million,
you said that?
Mr. Perkins. Over $200 million, and that is essentially a
conservative estimate. The treatment facility will have to
operate a minimum of 20 years in Santa Monica, and we are
hoping it is only 20 and not 40. It is hard to say.
Senator Chafee. How will you pay for it, just out of
curiosity?
Mr. Perkins. We do not know. We are hoping that by the time
it is ready to be constructed, about 2 or 3 years down the
road, that we will have money from the companies that caused
the pollution, but we will have to cross that bridge when we
are at that point.
Senator Boxer. And from your bill.
Senator Chafee. Yes, that will help.
Senator Boxer. Which will be the law.
Senator Chafee. Can you pinpoint the guilty party? Have you
done that?
Mr. Perkins. This is probably perhaps the scariest element
in our experience. In our main well field, what we did is we
drew a 1-mile radius around the well field. Within that 1-mile
radius, we found 22 separate gasoline stationsites that had
documented releases of gasoline over the previous 10 years. So
in narrowing down those potential candidates, we now have a
list of about 10 to 12 sites within a 1-mile radius of our well
field, and those are the most likely sources of the
contamination. In one of those sites, we believe that as much
as 50,000 gallons of gasoline leaked before the leaks were
stopped.
Senator Chafee. In one of them?
Mr. Perkins. Just one site.
Senator Chafee. It sounds to me like the guilty party.
We will move right on with Mr. Grant Cope, staff attorney
for the U.S. Public Interest Research Group. Welcome, Mr. Cope.
STATEMENT OF GRANT COPE, STAFF ATTORNEY, U.S. PUBLIC INTEREST
RESEARCH GROUP
Mr. Cope. Thank you, Senator Chafee.
I would like to thank the committee for holding a hearing
on S. 1850 and for examining the issues related to improving
the leaking underground storage tank program.
I will address three issues today. First, I will briefly
outline the main threats posed by leaking underground storage
tanks. Second, I will highlight the main areas where Federal
legislation is needed to increase protections against these
threats. And third, I will discuss how S. 1850 incorporates,
fails to incorporate, or could potentially weaken key
protections.
First, leaking underground storage tanks present a serious
threat to public health and environmental quality. States and
EPA acknowledge that leaking underground storage tanks are the
No. 1 potential source of groundwater contamination in the
country. Of course, 50 percent of the country relies on
groundwater for drinking water, and virtually 100 percent in
some rural areas do as well.
The main contaminant leaking from underground storage tanks
is gasoline, which actually has about 150 chemicals in it,
including benzine and toluene. Benzine is a recognized
carcinogen and reproductive and developmental toxicant. Toluene
is a recognized development toxicant and is suspected of also
adversely impacting the cardiovascular system, immune system,
respiratory system and reproductive systems.
Congress amended RCRA to create the Federal Underground
Storage Tank Program to address these types of threats. After
20 years, available data demonstrate that the program is not
adequately dealing with the threats caused by leaking
underground storage tanks. U.S. PIRG supports Federal
legislation that increases protections against pollution from
leaking underground storage tanks.
Such legislation should include five key points:
strengthening Federal and State enforcement authorities;
increasing the frequency and thoroughness of inspections; a
waiver of Federal sovereign immunity at facilities; augmenting
existing resources for the UST programs; and vigorously
incorporating the polluter pays principle. Conversely, U.S.
PIRG opposes legislation that weakens existing protections,
including EPA's authority to order cleanups of contamination.
U.S. PIRG would urge the subcommittee to consider modifications
to certain aspects of S. 1850 that fail to maintain or increase
protections for public health. I will highlight five key areas
right now. No. 1, S. 1850 could constrain EPA's authority to
issue cleanup orders. U.S. PIRG opposes such constraints.
Leaking underground storage tanks represent a threat to public
health. The subcommittee should not sanction constraints on
EPA's ability to protect the public from dangerous
contamination.
No. 2, U.S. PIRG supports S. 1850's requirement to increase
the frequency of inspections. However, consistent with the
information contained in GAO's 2001 report, S. 1850 should
require periodic physical inspections of tanks. This is
critically important.
No. 3, U.S. PIRG urges the subcommittee to incorporate an
unambiguous waiver of sovereign immunity related to penalties
and order authority at Federal facilities. Federal facilities
put the same cancer-causing materials into the tanks as do
private citizens. Therefore, they should be subject to the same
penalties and cleanup provisions as are private citizens.
No. 4, U.S. PIRG urges the subcommittee to actually
increase the resources going into the Leaking Underground
Storage Program. S. 1850 contains decreasing authorization in
later years and this is contrary to the needs of the program as
outlined in the GAO report. To the extent that GAO is holding
resources in reserve that could and should be spent to increase
protections currently, we would also vigorously urge the
subcommittee to direct EPA to do so.
No. 5, U.S. PIRG supports the polluter pays principle as a
tool for creating disincentives for pollution, conserving
limited public resources, and shifting costs onto entities that
are closely associated with contamination. The U.S. PIRG
opposes sections of S. 1850 that could prohibit EPA cost
recovery actions or result in polluters paying decreased
penalties. After 20 years, tank owners and operators should
understand that if the tanks leak dangerous contamination, EPA
can and will hold them accountable.
In conclusion, we look forward to working with the
committee to increase protections against one of the greatest
threats to the Nation's groundwater supplies, that of leaking
underground storage tanks.
Thank you.
Senator Chafee. Thank you, Mr. Cope. That is why we have
hearings, to hear constructive criticism. Thank you, the point
is very well made.
Now we will hear from Ms. Kathleen Stiller, Delaware
Department of Natural Resources and Environmental Control.
Thank you, Ms. Stiller. Welcome.
STATEMENT OF KATHLEEN STILLER, DELAWARE DEPARTMENT OF NATURAL
RESOURCES AND ENVIRONMENTAL CONTROL
Ms. Stiller. Good afternoon. My name is Kathleen Stiller
and I am representing the Association of State and Territorial
Solid Waste Management Officials. I will focus on four issues
of special importance to State program managers in my summary
remarks. I ask that the subcommittee accept our full written
testimony for the hearing record.
Senator Chafee. Without objection. Ms. Stiller. The first
issue is funding. While S. 1850 represents increased workloads
for States and does authorized increased funding, it does not
necessarily appropriate increased funding. Without the
increased funding, States would be unable to do the work. Even
with increased funding, given State revenues, personnel
restrictions and hiring freezes at the current time, there are
some concerns that we may not be able to do the work.
The second issue is inspections and enforcement. The bill
requires that inspections every 2 years be done for every
facility. This may not be practical for all States. In fact,
States may find that increased inspections with increased
followup and enforcement have a positive impact on compliance
rates and the severity of violations. However, they would like
the option to schedule inspections dependent on the location of
the tanks by a priority system, that those tanks in areas that
are more environmentally sensitive and pose more risk to human
health or public safety be inspected more frequently than those
of a lower risk.
States need the flexibility to use all the enforcement
tools provided in this bill and in other statutes that States
have. The incentives in performance appear to limit somewhat
the use of some enforcement tools for States by requiring that
they consider the compliance history of the violator. The
States would like to have that enforcement authority without
restrictions.
Red-tagging is something that States generally support as
being added as an option for enforcement tools. However, we
need to recognize that some States need to do legislative or
regulatory changes to obtain that authority, and this provision
should not be linked nor should any of the provisions be linked
to program approval for States. Many States have just an
equivalent program, although they do not have a program
approval from EPA.
The third issue is operator training. This is a resource-
intensive program, given the turnover rate of operators for
facilities. States should be required to provide this training.
Such options as third-party providers would be beneficial, and
States do recognize this is as important aspect of the program
and would help the prevention aspects of the Underground
Storage Tank Program. However, we would like the flexibility to
design a program such as a third-party provider with a
certification that the operator has attended the training, to
allow the flexibility of delivery and also the flexibility of
funding, as it is often difficult for States to introduce new
fees and obtain new funding for programs that require
resources.
Our fourth and final issue is MTBE. This is a groundwater
cleanup issue in States and they are handling it with regard to
the cleanups. The funding in this bill will help with some
cleanups. However, as we heard from the gentleman from Santa
Monica, it may not cover many of the sites we have out there.
We need to ensure that the entire UST system is designed to
prevent releases, not just the part of the system that
routinely contains product, as this has been seen to be an
issue in many States.
In closing, while States agree that increased inspections
followup enforcement and operator training will positively
impact compliance rates, resources are needed to support these
efforts. States also see a need for prioritization of
inspections based on the environmental sensitivity of a site
and the type of tanks at a site. A prioritization system would
allow States to focus their resources on areas of concern to
the State, rather than meeting a blanket requirement. Further,
States are concerned that even if resources are provided,
current restrictions at the State level may inhibit the use of
the resources to meet the inspection and operator training
requirements.
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.
Senator Chafee. Thank you very much, Ms. Stiller.
Welcome, Mr. DeBlois from the great State of Rhode Island,
representing the National Association of Convenience Stores and
the Society of Independent Gasoline Marketers.
STATEMENT OF ARTHUR J. DeBLOIS III, PRESIDENT AND CEO, DB
COMPANIES INC., REPRESENTING THE SOCIETY OF INDEPENDENT
GASOLINE MARKETERS OF AMERICA AND THE NATIONAL ASSOCIATION OF
CONVENIENCE STORES
Mr. DeBlois. Thank you, Senator, other members of the
subcommittee.
My name is Arthur J. DeBlois. I am the president of DB
Companies, Incorporated. We are an independent petroleum
marketer based in Providence, RI. We operate 86 DB Marts in a
four-State area--Rhode Island, Massachusetts, Connecticut, and
the Hudson Valley in New York. We also have an additional 84
franchise operating units.
Thank you for inviting me to testify today on S. 1850, the
Underground Storage Tank Compliance Act. As you indicated, I am
representing the National Association of Convenience Stores,
NACS, and the Society of Independent Gasoline Markets of
America, or SIGMA. NACS and SIGMA have been longstanding and
vocal advocates for vigorous enforcement of all Federal and
State underground storage tank, or UST, regulations.
With respect to Federal and State regulations of petroleum
USTs, NACS and SIGMA have three key objectives: first, ensure
that an adequate percentage of funds appropriated from the
Leaking Underground Storage Tank Trust Fund, or LUST Fund, is
delivered to the State UST programs for proper regulatory
enforcement and remediation assistance; second, ensure all UST
owners and operators, including governmental agencies,
commercial operators and Native American tribes, are held to
the same standards as the industry and comply with existing UST
regulations; and finally, to facilitate the prompt remediation
of releases from USTs.
NACS and SIGMA support key elements of your bill, S. 1850,
because the bill is consistent with these objectives. According
to the Bush Administration's fiscal year 2003 budget, the LUST
Trust Fund will have a balance at the end of 2002 of just over
$1.9 billion. Trust fund tax collections this year from people
such as myself will be over $193 million, and the fund is going
to earn an additional $113 million in interest. Despite this
huge balance, the Bush Administration has followed the policy
of previous Administrations and is only calling for an
appropriation of $73 million for fiscal year 2003. This is less
than the amount of interest earned by the fund.
Given the media attention to UST leaks over the past 5
years, which has focused particularly on MTBE contamination of
groundwater, the continued level of low appropriations from the
trust fund is inexplicable. NACS and SIGMA urge this committee
to use its influence to increase substantially the fiscal year
2003 appropriations from the LUST Fund. Previous witnesses this
afternoon have detailed the May 2001 GAO study and its
recommendations. NACS and SIGMA support fully those
recommendations and note that many of them are reflected in
your bill, S. 1850.
The legislation is supported by a bipartisan group of
cosponsors--Senators Jeffords, Smith, Inhofe, Reed and Warner--
and if enacted, would lead to important reforms in the Federal
LUST Fund program. These are, require a minimum of 80 percent
of the funds appropriated from the trust fund be delivered to
the States; permit States to use the trust fund moneys to
enforce the 1998 UST deadline; require all regulated USTs to be
inspected every 2 years; and require States to develop UST
operator training programs based on EPA guidelines. I think Ms.
Stiller's idea of having these administered by third parties or
certified people in a company is a great idea. Also require
States and Federal agencies to submit to EPA a strategy to
ensure that all tanks operated by Federal, State and local
governments comply with existing regulations; require EPA to
issue regulations to authorize EPA or the States to prohibit
deliveries of fuel into noncomplying tanks. We are in favor of
red-tagging. In fact, Massachusetts, as you are aware, has a
compliance system that allows you to do that. Authorize $200
million for the remediation of MTBE releases and authorize a
total of $460 million in appropriations from the trust fund.
NACS and SIGMA strongly support S. 1850 with one suggested
amendment. We consider this amendment to be very important in
achieving the goals of the legislation, that is to ensure
strong enforcement and quick remediation of UST leaks. As
introduced, S. 1850 limits the use of LUST Trust Fund moneys by
State UST reimbursement funds to situations where the UST owner
or operator would face financial hardships but for the
reimbursement. I can tell you unequivocally this provision
encourages noncompliance by UST owners and operators. We
believe that elimination of this limitation would expedite UST
cleanups and would leverage the limited tank remediation funds
currently available at the State level.
There is a misplaced perception that eliminating the
limitation in S. 1850 would send millions of dollars back to
the major oil companies. NACS and SIGMA do not believe this is
the case. In most instances, the major oil companies were the
first people to replace their tanks to the 1998 requirements.
Quite frankly, they have received the bulk of any moneys that
would be due them under the State insurance funds for the
cleanup expenses that they have incurred.
UST owners and operators are more likely to initiate and
complete tank cleanups if they know that after they pay the
deductible amount of the up-front fee, they are going to
receive timely reimbursement for their cleanups. Stated
differently, if reimbursements become stretched out over a
longer period of time, the UST owner or operator has an
incentive to slow down the pace of their cleanups. I am
personally aware of marketers in our industry who have made
just such a decision because of the uncertainty of timely
reimbursement and the company's cash-flow constraints. Thus,
limiting the UST LUST Fund moneys by State reimbursement funds
will do nothing to maintain the pace of corrective actions.
NACS and SIGMA appreciate this opportunity to present their
views on USTs and S. 1850. We look forward to working with the
committee on UST legislation and urge the committee to move
this bill expeditiously. I would be happy to answer any
questions my testimony may have raised.
Thank you.
Senator Chafee. Thank you very much, Mr. DeBlois.
Mr. Brunner, welcome.
Mr. Brunner. Thank you, sir.
Senator Chafee. Mr. Brunner represents the Profits Center
and is the manager.
STATEMENT OF ROGER BRUNNER, PROFITS CENTER MANAGER, ZURICH
NORTH AMERICA
Mr. Brunner. Ranking Member Chafee, my name is Roger
Brunner and I serve as a vice president with Zurich North
America Specialties Business Unit. Zurich North America is a
unit of Zurich Financial Services Group, the third-largest
provider of property and casualty insurance in the United
States.
My role in the organization is the management of our
business that provides environmental insurance for petroleum
storage tanks. Today, Zurich North America is the leading
provider of storage tank environmental insurance in the United
States, insuring tens of thousands of petroleum storage tanks,
which is significantly more than any other private insurer. We
have been insuring petroleum storage tanks for leakage for
approximately 10 years and we have paid to clean up thousands
of leaking underground and above-ground storage tanks.
Therefore, legislation that impacts the operations and risk
management practices of petroleum storage tanks significantly
impacts our business.
I am here this afternoon to voice support for the passage
of the Underground Storage Tank Compliance Act of 2001, Senate
bill 1850. The highly efficient localized storage and delivery
of petroleum is currently a fundamental component of our
American lifestyle and economy, and we expect localized
petroleum storage to continue for the foreseeable future.
Because the delivery of petroleum as a fuel source is such a
highly efficient, low-margin business for petroleum
distributors and represents such a low-cost product for
businesses, public entities and consumers, we sometimes lack
respect for the extreme complexity required for safely
operating our petroleum storage and delivery system. In short,
we take it for granted.
It is truly amazing that his volatile and potentially
dangerous liquid can be extracted from deep beneath the surface
of our planet, transported across the planet, processed in
highly technical refineries, then transported, blended and
stored locally. Even more amazingly, this vital product is then
sold to organizations and individuals for comparatively less
than a comparable amount of your favorite fountain soft drink.
The combination of the low-cost storage and delivery of
petroleum and the potentially significant damage by petroleum
releases to human health and the environment create the need
for Senate bill 1850.
This legislation is important. We believe that it will
improve the environmental safety of the local storage and
delivery of petroleum. Unfortunately, our experiences
demonstrate the need for this bill. Too often, inadequate
training procedures or technical appreciation for complex
monitoring devices leads to otherwise avoidable petroleum
leaks. For example, last week, I reviewed a case in the mid-
Atlantic with my claims department that involved a petroleum
retail location that had not appropriately tracked their
inventory and did not know that they were missing over 10,000
gallons of fuel. Imagine if this operator really understood and
executed the requirements expected if it stopped the release at
100 gallons instead of 10,000. The environmental contamination
would have been limited, the damage would have been limited,
and thousands of dollars, hundreds of thousands of dollars in
cleanup costs would have been saved.
Or in a classic example of the need for enhanced training,
I highlight the case in the Midwest where a local operator
taped up the miscalibrated electronic release detection system
that kept flashing and making noises. Apparently, this complex
electronic system had issued earlier false warnings and was
viewed somewhat like the boy that cried wolf once too often.
Unfortunately, when the piping joint came apart for the system
and there was a real release, no one paid attention until it
was too late.
The last personal observation I will cite is a hospital in
the Southeast that was not sure who was responsible for keeping
track of the compliance obligation for its generator's diesel
tanks. Because the hospital's mission is patient care, their
priority was naturally to make sure just simply that the tank
was full in case fuel was needed due to a power outage for
their emergency generator. This important and quite expected
priority on patient care, and the lack of focus on storage tank
compliance, missed the fact that a long, slow petroleum leak
was occurring, thus causing significant environmental damage.
Each of these examples are real-life claims submitted to
Zurich North American. Each was the result of poor training
compliance programs, and a significant amount of damage caused
by each was avoidable.
That is why we believe that Senate bill 1850 if enacted
will have a significant impact on the risk management practices
of petroleum tank operators in the United States. By requiring
and funding storage tank system compliance inspections at least
every 2 years and improving the training of regulated facility
operators, Senate bill 1850 will go a long way toward ensuring
a better prepared and more technically proficient operator
base. As a significant stakeholder, we believe that this is an
appropriate utilization of the LUST Trust Fund.
Zurich North America urges immediate passage of this
legislation. We believe that as long as local storage and
delivery of petroleum are part of the fabric of our lives,
environmental problems will occur. However, we believe that
over several years, the implementation of Senate bill 1850 will
help reduce the number of underground storage tank-related
environmental and human health problems and it will be even
more effective in reducing the severity of these problems that
do occur in the future.
I applaud you for introducing such legislation and I look
forward to working with you in the weeks and months to come.
Senator Chafee. Thank you very much, Mr. Brunner.
You have all been very terrific at contributing to this
bill. Now, we go forward on it. I don't really have any
questions. I would just ask Mr. DeBlois, is that on the
frontlines with the people, hiring the people, I know it is an
industry that traditionally has a great deal of turnover. I
know DB Marts probably less so than your competitors, but what
is it like to have the employees come in who are going to be in
charge of listening to these bells and whistles that might go
off if there is a leak, and making sure that they do the right
thing, even if the funds are there, in a business that might
have more turnover than perhaps others, of employees. Your
testimony did not cite that as a hardship for your industry,
but I am just curious as to what that would be like.
Mr. DeBlois. I think Mr. Brunner's point is well made, and
the requirement for a training program. Most of the responsible
operators today, Senator, already have some type of a training
program. Quite frankly, the industry would welcome a standard
set of guidelines that would lay out exactly what people
believe the appropriate training mechanisms are going to be,
and input from people like Zurich or others that are familiar
with the devices is very welcome. We have no problem with the
training program. We do it with our employees. It is costly. We
do have turnover. But before somebody gets behind a cash
register in one of our locations, they have basically gone
through about 2 weeks of training not only on just how to
operate the store, but what the equipment in the store is.
You have to realize that when I put a manager and an
employee behind a counter, I am giving them control of an asset
that probably has a price tag on it between land, buildings,
equipment and everything of well over $1 million. So it is in
my best interest to make sure that it is being properly
operated. But things like Mr. Brunner cites do happen, and a
training program I think that is industry-wide and required by
everybody will go a long way toward helping the industry. But
more importantly, it is going to help the hospital, the local
fire department, the commercial operator whose job it is not to
do that, so they tend not to pay attention to the devices that
they had to put there, even though they have got a significant
investment in them.
Senator Chafee. Very good. Thank you very much all for
coming some long distances. The testimony is very appreciated.
The hearing is concluded.
[Whereupon, at 3:14 p.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Bob Smith, U.S. Senator from the State of
New Hampshire
I want to express my gratitude to the Chair for holding this
hearing and to the witnesses for sharing their expertise with the
committee today. I especially want to thank my friend from Rhode
Island, Senator Chafee, for his strong leadership on the issue of
underground storage tanks. In 2000, Senator Chafee and I asked the
General Accounting Office (GAO) to assess the current Underground
Storage Tank program and the level of compliance with Federal
standards. What GAO found, outlined in a report released 1 year ago
this month, was that among other deficiencies, only 71 percent of tanks
were operated and maintained according to standards. In response to the
GAO report, I joined Senators Chafee, Inhofe, Jeffords and Carper in
introducing S. 1850--the subject of today's hearing. This bill responds
to the many deficiencies identified in the GAO report. S. 1850 takes
several needed steps to help Federal, State and local officials to
clean up and prevent further contamination caused by leaking
underground storage tanks. The bill increases inspections and training,
with an emphasis on compliance. It also provides the funding necessary
to meet the new requirements set out in the legislation. S. 1850 will
help to ensure that our groundwater will not become contaminated
because of inadequate maintenance or operation of the Nation's
underground storage tanks. It my hope that this hearing will give this
legislation the boost it needs to move through the legislative process.
The bill also addresses a specific type of gasoline additive
contamination that has hit New Hampshire hard--MTBE. This bill provides
$200 million to clean up MTBE contamination. Having visited with a
number of families and small business owners who have suffered from
MTBE pollution, I can tell you that these resources will go a long way
to rid many of the MTBE nightmare. I am grateful that this provision
has been included in the bill. I know that Senator Chafee's home State
of Rhode Island has also suffered from MTBE contamination, and we will
be hearing from a witness today describing their battle with this gas
additive. By ensuring better compliance and improved underground
storage tank integrity, we will reduce the amount of MTBE that will
find its way into our water. But we need to go further and ban MTBE.
This committee and the Senate have done just that. Both this Congress
and last, this committee has passed my legislation that would ban MTBE
and cleanup contamination caused by the gas additive, without
backsliding on air quality. I was very pleased that the energy package
the Senate passed recently included my bill to deal with MTBE. It is my
hope that the House of Representatives will agree to ban this
substance. It is important to my constituents in New Hampshire and to
the entire Nation that the poisoning of our groundwater stops.
S. 1850 also provides the opportunity to pass a narrow, but
important petroleum liability provision. While currently not included
in the bill, this provision would be helpful to spur cleanup and
redevelopment where contamination does exist. I look forward to working
with my fellow cosponsors, and all members of the committee, in
exploring this additional provision.
Once again, I want to thank the Chair for holding this hearing and
I look forward the testimony of our witnesses.
__________
Statement of Marianne Lamont Horinko, Assistant Administrator, Office
of Solid Waste and Emergency Response, U.S. Environmental Protection
Agency
Good morning Madam Chairman and members of the subcommittee, I am
Marianne Horinko, EPA's Assistant Administrator for the Office of Solid
Waste and Emergency Response. I am pleased to appear today to discuss
S. 1850, the Underground Storage Tank Compliance Act of 2001, identify
some of the challenges facing the Underground Storage Tank (UST)
Program, and describe work EPA has undertaken to address those
challenges.
BACKGROUND
In 1984, Congress responded to the increasing threat to groundwater
posed by leaking USTs by adding Subtitle I to the Resource Conservation
and Recovery Act (RCRA). The statute directed EPA to develop a
comprehensive regulatory program for USTs storing petroleum or certain
hazardous substances to protect the environment and human health from
UST releases. EPA's 1988 regulations set minimum standards for new
tanks and required owners of substandard tanks to upgrade or close
them. The regulations addressed a variety of other requirements
including those related to leak detection and cleanup of releases when
they occur.
In 1986, Congress created the Leaking Underground Storage Tank
(LUST) Trust Fund to provide a stronger funding base for the cleanup
portion of the underground storage tank program. The LUST Trust Fund
provides money for EPA to help administer the program nationwide and
implement the program in Indian Country. In 1998, Congress also created
explicit authority for EPA to provide LUST funding to federally
recognized Indian tribes. The majority of the LUST Trust Funds are
provided to the States to oversee cleanups, take enforcement actions at
leaking tank sites, and undertake State-lead cleanups when a
responsible party cannot be found or is unable or unwilling to
remediate a site which presents a threat to public health and the
environment. EPA provides approximately 81 percent of the annual LUST
Trust Fund appropriation to the States. Since the inception of the LUST
Trust Fund, States have received approximately $790 million.
Since its inception in the mid-1980's, EPA's UST program has
developed an extremely effective partnership with States to implement
the program. From the outset, this program was designed to be
implemented primarily by States. In general, all States implement an
underground storage tank program using grants and cooperative
agreements from EPA. Twenty-nine States, Puerto Rico and the District
of Columbia have been formally approved by EPA to operate their UST
programs in lieu of the Federal UST program. EPA retains the authority
to implement and enforce the State's UST program in authorized States
and to implement and enforce the Federal program in unauthorized
States. EPA implements and enforces the program in Indian Country where
EPA works closely with Indian tribes. EPA continues to work with other
States to help them have their programs formally approved. In many
respects, the successes achieved by this program are due to
partnerships, not only with States and tribes, but also with the
private sector. We believe the UST program's effective partnerships can
serve as a model for other programs.
PROGRAM PROGRESS
As EPA established the UST program, it faced some unique challenges
including the immense regulated universe of over 2 million USTs. Many
of these USTs were old, made of bare steel, and subject to corrosion.
Since the inception of the program, EPA and the States have made
substantial progress. Over 1.5 million substandard USTs have been
closed. As a result of the closures, these UST systems are no longer
sources of additional contamination. There are now approximately
705,000 active USTs, nearly all of which have the required leak
detection and prevention equipment. Additionally, States report that
approximately 75 percent of these USTs are operated and maintained
correctly.
EPA and States have made substantial progress in cleaning up
releases from leaking USTs. Since the inception of the program,
approximately 419,000 petroleum releases from USTs have been reported.
Much progress has already occurred in cleaning up releases. Cleanups
have been initiated for 379,000 (over 90 percent) of these releases and
cleanups have been completed for about 269,000 (approximately two-
thirds) of the releases. This represents a tremendous amount of work
and success by the States, tribes, EPA, responsible parties and cleanup
contractors. Among the major factors affecting this success are the
cleanup funds States have established. These funds, which raise and
expend approximately $1 billion annually, pay for the vast majority of
site assessments and remediation each year.
We have also made considerable progress reducing the number of new
releases. Since 1990, the number of new releases reported annually has
averaged approximately 30,000. In fiscal year 2001, the number of new
releases reported dropped to approximately 6,500. While this represents
a dramatic improvement, it is still too many.
PROGRAM CHALLENGES
While substantial progress has been made since the mid-1980's,
there are additional challenges that still need to be addressed. First,
while many releases have been cleaned up, there are still approximately
150,000 where the cleanup has not been completed including releases
with methyl tertiary-butyl ether (MTBE) contamination. Second, there
are hundreds of thousands of abandoned USTs, many of which have had
releases that need to be addressed. Third, while USTs have been
improved and generally are operated and maintained properly,
approximately 25 percent of the UST systems still need to be brought
into compliance and all UST systems need to be operated and maintained
properly so that once they are in compliance, they remain in
compliance. And finally, while UST systems are greatly improved and the
number of new releases has dramatically reduced, there are still
releases from new and upgraded systems.
The first challenge is the large number of releases--150,000--that
are not yet cleaned up. While substantial progress has been made on
many of these releases, there still is an immense amount of work that
remains to be done to increase the pace at which cleanups are
completed, and reduce and ultimately eliminate this backlog of
releases.
The vast majority of regulated USTs contain petroleum products that
contain toxic substances, such as benzene, toluene, and naphthalene.
Therefore, releases from USTs may pose both human health and
environmental risks. Further, the presence of MTBE makes the challenge
of cleaning up these releases more difficult, because MTBE is more
likely to reach groundwater than other petroleum constituents, and once
it does, can make the water unpotable due to its unpleasant taste and
odor.
MTBE contamination has affected communities across the country. For
example, the city of Santa Monica, CA has faced a massive loss of a
significant portion of its drinking water supplies due to MTBE
contamination caused by failures of UST systems. Lake Tahoe has faced
similar problems. In Long Island, New York, MTBE contamination has
resulted in alternate or improved water supplies having to be provided
for over 160 affected public and private wells. Pascoag, RI, while
smaller in size than Santa Monica, Lake Tahoe or Long Island, has also
lost its water supply. More recently, attention has turned to a release
in Roselawn, IN. In this case, the source of the release, which may be
from an UST system, has not yet been identified.
MTBE contamination from all sources, including USTs, is fairly
widespread. A 2001 U.S. Geological Survey study found that MTBE was
detected in 9 percent of community water systems in 10 States, although
generally below EPA's drinking water advisory value. A national study
by the New England Interstate Water Pollution Control Commission in
2000 found that most States detect MTBE at 60 to 80 percent of leaking
UST sites. Based on an analysis of data from 31 States, a report in
Environmental Science & Technology (May 2000) estimated that up to
9,000 community water supplies in those 31 States may be threatened by
MTBE contamination.
The second challenge we face is finding, removing and, where
necessary, cleaning up abandoned USTs. The General Accounting Office
(GAO) estimated there are approximately 200,000 abandoned USTs at
brownfields sites. In addition, there are many abandoned USTs at sites
that have not been designated as brownfields sites. The workload
associated with abandoned tanks, many of which have not yet been found,
probably exceeds that of dealing with the backlog of known release
sites that have yet to be cleaned up.
Preventing releases before they occur is the best way to protect
human health and the environment. The remaining challenges focus on
preventing and rapidly detecting releases before they become problems.
The third challenge involves compliance with the UST regulations.
In a recent report, Improved Inspections and Enforcement Would Better
Ensure the Safety of Underground Storage Tanks, the GAO estimated that
approximately 29 percent of USTs were not operated or maintained
properly. While the vast majority of USTs have the proper equipment,
proper operation and maintenance remains a considerable challenge.
Owners and operators of USTs normally have many responsibilities which
compete with the time necessary to properly operate and maintain their
UST systems. The challenge here is to help all owners and operators to
achieve compliance and maintain it through ongoing proper operation and
maintenance of their UST systems. We will do this using all available
tools including compliance assistance, training, inspections, and
enforcement.
Finally, as we have already noted, new and upgraded UST systems
continue to have releases, although at a much reduced rate. There is
also evidence releases are not being detected by the existing leak
detection infrastructure as often as they should be. The Federal
requirements set basic UST system performance standards, but allow a
wide variety of approaches to meet those standards. While that provides
significant flexibility to the tank owners, it also complicates efforts
to operate, maintain, and inspect UST systems. If the equipment is
insufficient or the operation and maintenance of the equipment is not
performed correctly, there will continue to be significant risk posed
by releases from USTs. Our challenge is to determine the source and
cause of the problems, and identify the appropriate remedies.
PROGRAM INITIATIVES TO ADDRESS THE CHALLENGES
In October 2000, EPA announced four initiatives to address the
challenges facing the program: (1) Faster Cleanups, (2) USTfields for
Abandoned Tanks, (3) Improving Compliance, and (4) Evaluating UST
System Performance. In addition, the Agency has taken additional
actions to deal with the challenges posed by MTBE. Before turning to
the four initiatives, let's briefly examine some of the work that deals
with MTBE.
EPA has undertaken several efforts to aid States in addressing
problems with MTBE contamination. EPA has provided substantial funding
and/or technical support to Santa Monica, South Lake Tahoe and Long
Island to remediate MTBE. In addition, EPA is chairing a Federal-State
workgroup that will create a multi-chapter interim guidance for States
on MTBE related issues. Two years ago, EPA supported a grant to the New
England Interstate Water Pollution Control Commission to develop a
national baseline survey on the scope of the MTBE problem. EPA also
maintains a website which documents MTBE remediation case studies so
that experiences with MTBE remediation can be shared nationwide. EPA is
also conducting a demonstration of treatment and remediation
technologies for MTBE-contaminated soil, groundwater and drinking water
at Port Hueneme, CA.
FASTER CLEANUPS
The goal of our first initiative, Faster Cleanups, is to increase
the pace at which cleanups, including those with MTBE contamination,
are initiated and completed, with an eye toward making land and water
resources available for reuse. To accomplish this goal, EPA is
finalizing a method for setting goals for completing cleanups more
quickly. EPA has also recently created a web-based toolbox for
promoting pay-for-performance contracting methods which in most cases
shortened cleanup times and reduced cleanup costs by 30 to 50 percent.
Finally, EPA plans to foster the development of voluntary multi-site
cleanup agreements between State or Regional EPA programs and private,
Federal, or tribal owners of multi-site leaking underground storage
tanks. The economies of scale in developing multi-site agreements
should help achieve faster cleanups.
USTFIELDS
Our second initiative, dealing with USTfields, is designed to
address abandoned USTs. USTfields applies to abandoned or underused
industrial and commercial properties where reuse is complicated by real
or perceived environmental contamination from federally regulated USTs.
Petroleum contamination is generally excluded from coverage under the
Comprehensive Environmental Response, Compensation, and Liability Act
and is not, therefore, covered under EPA's current brownfields program.
EPA has undertaken the USTfields initiative to address petroleum
contamination from abandoned tanks generally excluded from brownfields
reuse. In November 2000, EPA announced its first 10 USTfield pilot
grants. A recently released report, Recycling America's Gas Stations,
captures the experiences from the first 10 pilots. These pilots are
intended to help increase our knowledge of finding out how best to
address abandoned and underused petroleum-impacted sites. EPA expects
to announce an additional 40 USTfield grants later this spring.
In January 2002, President Bush signed the ``Small Business
Liability Relief and Brownfields Revitalization Act'' into law. Under
this legislation, substantially more funding is authorized to deal with
abandoned petroleum contaminated sites that are not addressed under
current programs. The President's budget requests $30 million to carry
out this effort. This legislation will enable States, tribes, and
communities throughout the country to assess, remediate, and ready for
reuse a multitude of sites that otherwise would remain abandoned for
many years. The USTfield pilots will provide invaluable lessons as we
deal with many abandoned sites under the new legislation.
COMPLIANCE
Our third initiative focuses on improving compliance with the UST
requirements. EPA and our State and tribal partners are constantly
working to improve compliance. As part of this initiative, we are
taking several specific steps. First, we have changed the way we are
measuring compliance to focus on proper operation and maintenance.
Previously, we focused primarily on whether the facility had the proper
equipment. As part of this initiative, we are improving the quality of
compliance data so that EPA, States, and the public have an accurate
and consistent measure of compliance. Second, we are looking at a
variety of approaches, including third-party inspections and
environmental results programs, such as the one in Massachusetts being
used to improve compliance by dry cleaners, printers and photo
finishers, to help improve compliance. Third, EPA is promoting multi-
site compliance agreements between EPA and multi-site owners to bring
their tanks into operational compliance. Finally, EPA is focusing
additional attention on training needs, both for inspectors and for
owners and operators. We are nearing completion of an evaluation of
training needs. And we are working to increase training opportunities
through a variety of institutions, including universities, and are
exploring increased use of internet-based training.
UST SYSTEM PERFORMANCE
The fourth initiative, Evaluating UST System Performance, is an
effort to determine the sources and causes of releases, as well as the
reasons for the failure of release detection to detect releases, and to
develop approaches to address these problems. To evaluate the
performance of UST systems, EPA needed to gather and review
quantitative and qualitative data currently available, and to initiate
additional studies to gather additional quantitative data. EPA gathered
and analyzed more than 50 existing reports or studies from States and
industry and has met with or interviewed numerous State and industry
experts. In order to obtain greater quantitative information about the
types of systems failing and the reasons for those failures, EPA is
partnering with 24 States to perform leak autopsies at new release
sites to determine the source and cause of the release. EPA is also
initiating studies with a number of States to evaluate specific UST
system components and technologies and to compare the performance of
various UST systems. EPA has learned much from these efforts about the
sources and causes of problems, and there are clear trends emerging
from these efforts.
EPA's evaluation of UST system performance has confirmed that new
and upgraded UST systems still have releases and those releases are
often not properly detected. We have identified faults with most
components of UST systems, including the design, installation,
operation, and maintenance of the various components. Many of the
problems appears to be caused by human error or oversight--including
failure to test and maintain corrosion protection and leak detection
systems--but problems with the actual equipment is also of concern.
Piping continues to be the leading cause for concern. Spills and
overfills during product delivery also continue at an unacceptable rate
and releases from dispensers have emerged as a major concern. Since
most UST systems in operation are still single-walled, a failure of
these UST systems will lead to a release directly into the environment.
And when a release does occur, the existing release detection
infrastructure is failing to adequately detect releases from tanks and
pipes, and is, in fact, not even designed to detect most spills and
overfills or dispenser releases. Also, the release detection
infrastructure is by design reactive, only detecting releases after
they enter the environment, unless a system is secondarily contained
with interstitial monitoring. Finally, there is emerging evidence that
vapor releases from new and upgraded UST systems are common, and
released vapors--including MTBE--can find their way into the
groundwater.
It is important to note that the current generation of UST systems
is significantly more protective than the previous generation, but a
number of problems remain. More work needs to be done to further
understand the sources and causes of problems and to identify
appropriate remedies. As part of this work, we will be collecting
additional data. We will also increase our discussions with States and
the regulated community to further examine these issues and to discuss
potential solutions to the problems and challenges that still face us.
This remains a significant priority for EPA.
In summary, Madam Chairman, we believe very substantial progress
has been made on a variety of UST challenges including closing
substandard USTs, improving compliance, and cleaning up releases.
Nevertheless, the amount of work, especially in light of MTBE
contamination, remaining to be accomplished is also substantial. We
look forward to working with Congress, States, and our other partners
to address the work before us.
S. 1850--UNDERGROUND STORAGE TANK COMPLIANCE ACT OF 2001
I would like to commend Senators Chafee, Carper, Smith, Jeffords
and Inhofe for introducing S. 1850, the Underground Storage Tank
Compliance Act of 2001, which would help prevent and cleanup releases
from USTs. The Agency has been reviewing the legislation and continues
to analyze specific provisions. While we do not have an official
Administration position on the bill, I have some thoughts I would like
to share.
First of all, I appreciate the subcommittee's recognition of the
importance of preventing and cleaning up UST releases. While tremendous
progress has been made over the past decade there are still substantial
challenges and risks posed by USTs, as I have outlined in this
testimony. More specifically, the focus on remediating MTBE
contamination is both timely and appropriate. As I have discussed, MTBE
poses challenges to communities throughout the country. There are
thousands of releases containing MTBE that still need to be addressed,
and this will be a continuing challenge for EPA, its State and tribal
partners, and the regulated community.
Preventing future releases is equally important and I also commend
the subcommittee on its efforts to provide more tools and resources to
make that happen. S. 1850's focus on inspection frequency and improving
operator training is appropriate and could go a long way toward
ensuring UST systems are properly managed to reduce the risk of
releases.
Section 6 of S. 1850 has several important provisions. One of these
provisions deals with delivery prohibition programs. Approximately 20
States have some form of delivery prohibition program. While these
programs vary from State-to-State, many States have found these
effective in promoting compliance with the UST requirements. This tool
could be extremely valuable to those States that do not currently have
delivery prohibition programs and to the Federal Government.
The legislation expands the eligible uses of LUST funding. This
would give increased flexibility to both States and EPA to direct our
resources to the most pressing needs. For example, we could use LUST
funding for inspections and enforcement to ensure compliance with the
preventive requirements. Since unique factors affect many States, the
flexibility will prove particularly important to deal with State-
specific issues.
The legislation also places increased emphasis on operator
training. We believe this is extremely important to ensure proper
operation and maintenance of UST systems. Some States, including
California, are already taking steps to ensure proper operator
training. Given the high turnover in facility personnel, ensuring
proper training for all UST operators is particularly challenging. To
meet this challenge will take considerable effort by the regulated
community, States, and EPA.
While there are many provisions in S. 1850 that would strengthen
the current UST program, there are provisions that need further
clarification or could have the unintended effect of hindering UST
program progress. We would be pleased to work with you and your staff
to discuss these issues and concerns with the funding authorization
levels in more detail.
I again commend the subcommittee for focusing on the challenges
facing the UST program and for supporting efforts to protect our
citizens from risks posed by leaking USTs. I look forward to working
closely with the Environment and Public Works Committee and Congress as
it continues deliberations on the bill.
__________
Statement of John Stephenson, Director, Natural Resources
and Environment
Madam Chairwoman and members of the subcommittee, I am pleased to
have this opportunity to come before you today to discuss our May 2001
report on the Environmental Protection Agency's (EPA) Underground
Storage Tank (UST) program.\1\ The report relates directly to the topic
of today's hearing--the proposed Underground Storage Tank Compliance
Act of 2001 (S. 1850)--that is consistent with many of the suggested
program improvements found in our report. The timing of the legislation
and hearing is critical. Recent studies have shown that tanks that leak
hazardous substances, such as methyl tertiary butyl ether (MTBE),
contaminate the soil or water and continue to pose health risks ranging
from nausea to kidney or liver damage or even cancer. Indeed, leaks of
MTBE--a fuel additive for reducing emissions and raising octane--have
been found in drinking water sources and several communities have now
had to close their wells. For example, a school in Roselawn, IN,
discovered that the children had been using and drinking water with 10
times EPA's recommended safe limit.
---------------------------------------------------------------------------
\1\ Environmental Protection: Improved Inspections and Enforcement
Would Better Ensure the Safety of Underground Storage Tanks (GAO-01-
464, May 4, 2001).
---------------------------------------------------------------------------
The Congress in 1984 created the UST program to protect the public
from potential leaks from the then more than 2 million tanks located
across the Nation, mostly at gas stations. Under the program, EPA
required tank owners to install new leak detection equipment by the end
of 1993 and new spill-, overfill-, and corrosion-prevention equipment
by the end of 1998. If these conditions were not met, owners had to
close or remove their tanks. In general, EPA has granted States the
authority to implement the program with Agency oversight and
monitoring, or States operate their own program under State law with
limited EPA oversight. EPA has provided States funding (about $187,000
per State) for doing so. EPA retains authority for a small number of
tanks primarily located on Indian lands. In addition, the Congress
created a trust fund in 1986 to help EPA and the States cover tank
cleanup costs that owners and operators could not afford or were
reluctant to pay. The fund is replenished partly through a $.001/gallon
tax on gasoline and other fuels. At the end of fiscal year 2001, the
fund had a balance of about $1.7 billion.
Because the States are primarily implementing the provisions of the
program, in October 2000, we conducted a survey of all 50 States and
the District of Columbia to determine whether tanks are complying with
program requirements, how EPA and the States are inspecting tanks and
enforcing the requirements, and whether upgraded tanks still leak. We
also visited the three EPA regions with the largest number of tanks to
monitor. In summary, we found that:
About 1.5 million tanks had been permanently closed since
the program was created, leaving about 693,000 tanks subject to UST
requirements. Based on the States' responses to our survey, we
estimated that about 89 percent of these tanks had the required
protective equipment installed, but that almost 30 percent of them--
more than 200,000 tanks--were not being operated and maintained
properly, thus, increasing the chance of leaks. For example, 19 States
reported frequent problems with corrosion--prevention equipment and 15
States reported that leak detection equipment was frequently turned off
or improperly maintained. The States and EPA attributed these operation
and maintenance problems primarily to poorly trained staff. Of the
remaining 11 percent, or 76,000, tanks that we estimated had not been
retrofitted with the required equipment, EPA and the States speculated
that the tanks were probably inactive and empty. Nevertheless, it is
important to address them because experience has shown that they may
have leaked in the past, but the contamination, which poses health
risks, is not discovered until the tank is dug up for removal. However,
most States and EPA do not know if all inactive tanks are empty--and we
could not verify the accuracy and completeness of the compliance data
they reported--because they do not physically inspect all tanks.
In fact, over half of the States do not inspect all of
their tanks frequently enough to meet the minimum rate recommended by
EPA--at least once every 3 years. In addition, 27 States lack the
authority to prohibit fuel deliveries to stations with problem tanks--
one of the most effective tools for ensuring compliance with program
requirements--relying instead on issuing citations and fines. States
said that they did not have the money, staff, or, authority to conduct
more inspections or more strongly enforce tank compliance.
Finally, States reported that even tanks with the required
leak prevention and detection equipment installed continue to leak,
although the full extent of the problem is not known. In response to
our survey, 14 States reported some tank leaks, 17 States said their
tanks seldom or never leaked, and 20 States did not know if leaks
occurred before the tanks were upgraded. EPA and some localities have
studies underway to obtain better data on leaks from upgraded tanks.
EPA, as part of a set of four program initiatives it announced in
October 2000, is also considering whether it needs to set new tank
requirements, such as double-walled tanks, to prevent further leaks.
To address these problems, our report recommends that EPA work with
the States to determine training needs and ways to fill them, and to
more specifically address the estimated 76,000 tanks that have not yet
been upgraded, closed, or removed as required. Our report also contains
recommendations to EPA and suggestions to the Congress on ways to
promote better inspections and enforcement and to address related
resource shortfalls by expanding the use of the $1.7 billion trust fund
designated for tank cleanup to also cover additional inspection and
enforcement activities. The proposed legislation is consistent with
many of the program improvements that we suggested.
MOST TANKS HAVE BEEN UPGRADED, BUT MANY ARE NOT PROPERLY OPERATED
AND MAINTAINED
Based on State responses to our survey, we estimated that nearly
617,000, or about 89 percent of the approximately 693,000 regulated
tanks, had been upgraded with the federally required equipment by the
end of fiscal year 2000. EPA data showed that about 70 percent of the
total number of tanks that its regions regulate on tribal lands had
also been upgraded.
With regard to the approximately 76,000 tanks that we estimated
have not been upgraded, closed, or removed as required, 17 States and
the 3 EPA regions we visited reported that they believed that most of
these tanks were either empty or inactive. However, another five States
reported that at least half of their non-upgraded tanks were still in
use. EPA and States assume that the tanks are empty or inactive and
therefore pose less risk. As a result, they may give them a lower
priority for resources. However, States also reported that they
generally did not discover tank leaks or contamination around tanks
until the empty or inactive tanks were removed from the ground during
replacement or closure. Consequently, unless EPA and the States address
these non-compliant tanks in a more timely manner, they may be
overlooking a potential source of soil and groundwater contamination.
Even though most tanks have been upgraded, we estimated from our
survey data that more than 200,000 of them, or about 29 percent, were
not being properly operated and maintained, increasing the risk of
leaks. The extent of operations and maintenance problems varied across
the States, as figure 1 illustrates.
[GRAPHIC] [TIFF OMITTED] T3685.001
The States reported a variety of operational and maintenance
problems, such as operators turning off leak detection equipment. The
States also reported that the majority of problems occurred at tanks
owned by small, independent businesses; non-retail and commercial
companies, such as cab companies; and local governments. The States
attributed these problems to a lack of training for tank owners,
installers, operators, removers, and inspectors. These smaller
businesses and local government operations may find it more difficult
to afford adequate training, especially given the high turnover rates
among tank staff, or may give training a lower priority. Almost all of
the States reported a need for additional resources to keep their own
inspectors and program staff trained, and 41 States requested
additional technical assistance from the Federal Government to provide
such training.
To date, EPA has provided States with a number of training sessions
and helpful tools, such as operation and maintenance checklists and
guidelines. One of EPA's tank program initiatives is also intended to
improve training and tank compliance with Federal requirements, such as
setting annual compliance targets with the States. The Agency is in the
process of implementing its compliance improvement initiative, which
involves actions such as setting the targets and providing incentives
to tank owners, but it is too early to gauge the impact of the Agency's
efforts on compliance rates.
MOST STATES DO NOT MEET EPA'S RECOMMENDATION TO INSPECT ALL TANKS EVERY
3 YEARS OR HAVE THE ENFORCEMENT TOOLS NEEDED TO IDENTIFY AND CORRECT
PROBLEMS
According to EPA's program managers, only physical inspections can
confirm whether tanks have been upgraded and are being properly
operated and maintained. However, only 19 States physically inspect all
of their tanks at least once every 3 years--the minimum that EPA
considers necessary for effective tank monitoring. Another 10 States
inspect all tanks, but less frequently. The remaining 22 States do not
inspect all tanks, but instead generally target inspections to
potentially problematic tanks, such as those close to drinking water
sources. In addition, not all of EPA's own regions comply with the
recommended rate. Two of the three regions that we visited inspected
tanks located on tribal land every 3 years. Figure 2 illustrates the
States' reported inspection practices.
[GRAPHIC] [TIFF OMITTED] T3685.002
According to our survey results, some States and EPA regions would
need additional staff to conduct more frequent inspections. For
example, under staffing levels at the time of our review, the
inspectors in 11 States would each have to visit more than 300
facilities a year to cover all tanks at least once every 3 years, but
EPA estimates that a qualified inspector can only visit at most 200
facilities a year. Moreover, because most States use their own
employees to conduct inspections, State legislatures would need to
provide them additional hiring authority and funding to acquire more
inspectors. Officials in 40 States said that they would support a
Federal mandate requiring States to periodically inspect all tanks, in
part because they expect that such a mandate would provide them needed
leverage to obtain the requisite inspection staff and funding from
their State legislatures.
In addition to more frequent inspections, a number of States stated
that they need additional enforcement tools to correct problem tanks.
EPA's program managers stated that good enforcement requires a variety
of tools, including the ability to issue citations or fines. One of the
most effective tools is the ability to prohibit suppliers from
delivering fuel to stations with problem tanks. However, as figure 3
illustrates, 27 States reported that they did not have the authority to
stop deliveries. In addition, EPA believes, and we agree, that the law
governing the tank program does not give the Agency clear authority to
regulate fuel suppliers and therefore prohibit their deliveries.
[GRAPHIC] [TIFF OMITTED] T3685.003
Almost all of the States said they need additional enforcement
resources and 27 need additional authority. Members of both an expert
panel and an industry group, which EPA convened to help it assess the
tank program, likewise saw the need for States to have more resources
and more uniform and consistent enforcement across States, including
the authority to prohibit fuel deliveries. They further noted that the
fear of being shut down would provide owners and operators a greater
incentive to comply with Federal requirements.
Under its tank initiatives, EPA is working with States to implement
third party inspection programs, using either private contractors or
other State agencies that may also be inspecting these business sites
for other reasons. EPA's regions have the opportunity, to some extent,
to use the grants that they provide to the States for their tank
programs as a means to encourage more inspections and better
enforcement. However, the Agency does not want to limit State funding
to the point where this further jeopardizes program implementation. The
Congress may also wish to consider making more funds available to
States to improve tank inspections and enforcement. For example, the
Congress could increase the amount of funds it provides from the
Leaking Underground Storage Tank trust fund, which the Congress
established to specifically provide funds for cleaning up contamination
from tanks. The Congress could then allow States to spend a portion of
these funds on inspections and enforcement. It has considered taking
this action in the past, and 40 States said that they would welcome
such funding flexibility.
SOME TANKS CONTINUE TO LEAK EVEN AFTER THEY HAVE BEEN UPGRADED,
ALTHOUGH THE EXTENT OF THIS PROBLEM IS UNKNOWN
In fiscal year 2000, EPA and the States confirmed a total of more
than 14,500 leaks or releases from regulated tanks, although the Agency
and many of the States could not verify whether the releases had
occurred before or after the tanks had been upgraded. According to our
survey, 14 States said that they had traced newly discovered leaks or
releases that year to upgraded tanks, while another 17 States said they
seldom or never detected such leaks. The remaining 20 States could not
confirm whether or not their upgraded tanks leaked.
EPA recognizes the need to collect better data to determine the
extent and cause of leaks from upgraded tanks, the effectiveness of the
current equipment, and if there is a need to strengthen existing
equipment standards. The Agency has launched studies in several of its
regions to obtain such data, but it may have trouble concluding whether
leaks occurred after the upgrades. In a study of local tanks,
researchers in Santa Clara County, CA, concluded that upgraded tanks do
not provide complete protection against leaks, and even properly
operated and maintained tank monitoring systems cannot guarantee that
leaks are detected. EPA, as one of its program initiatives, is working
with the States to gather data on leaks from upgraded tanks in order to
determine whether equipment requirements need to be strengthened, such
as requiring double-walled tanks. The States and the industry and
expert groups support EPA's actions.
In closing, the States and EPA cannot ensure that all regulated
tanks have the required equipment to prevent health risks from fuel
leaks, spills, and overfills or that tanks are safely operated and
maintained. Many States are not inspecting all of their tanks to make
sure that they do not leak, nor can they prohibit fuel from being
delivered to problem tanks. EPA has the opportunity to help its regions
and States correct these limitations through its tank initiatives, but
it is difficult to determine whether the Agency's proposed actions will
be sufficient because it is just defining its implementation plans. The
Congress also has the opportunity to help provide EPA and the States
the additional inspection and enforcement authority and resources they
need to improve tank compliance and safety.
Therefore, to better ensure that underground storage tanks meet
Federal requirements to prevent contamination that poses health risks,
we have made a number of recommendations to the EPA administrator,
including that the Agency:
1. Work with the States to address the remaining non-upgraded
tanks, such as reviewing available information to determine those that
pose the greatest risks and setting up timetables to remove or close
these tanks.
2. Supplement the training support it has provided to date by
having each region work with each of the States in its jurisdiction to
determine specific training needs and tailored ways to meet them.
In addition, we suggested several actions that the Congress may
want to consider to help the program, which have been incorporated in
the proposed legislation. Such actions include efforts to determine
whether to increase the program's resources, for example, by increasing
the amount of funds it appropriates from the trust fund and allowing
States to spend a limited portion on training, inspection, and
enforcement activities, as long as cleanups are not delayed. In
addition, we suggested that the Congress consider (1) authorizing EPA
to require physical inspections of all tanks on a periodic basis, (2)
authorizing EPA to prohibit fuel deliveries to tanks that do not comply
with Federal requirements, and (3) requiring that States have similar
authority to prohibit fuel deliveries.
__________
Statement of Craig Perkins, Director of Environment and City of Santa
Monica, CA
On behalf of the Mayor and City Council of the city of Santa
Monica, I want to thank you for the opportunity to give testimony on S.
1850. First, I would like to share with you today the key lessons we
have learned from our painful experiences with underground storage
tanks and MTBE in Santa Monica. Santa Monica is a city of nearly 90,000
permanent residents and over 200,000 daily visitors. The city depends
heavily on groundwater for its drinking water supply. After many years
of effort, by 1995 we had been able to maximize the use of local
groundwater supplies and achieve 70 percent water self-sufficiency. By
using our sustainable local water resources we were able to reduce our
reliance on increasingly scarce water imported from northern California
and the Colorado River. This all changed in 1996 when Santa Monica was
hit with a drinking water catastrophe caused by MTBE. Within a 6-month
period in 1996 MTBE forced Santa Monica to shut down most of its water
wells. These wells accounted for one-half of the total daily water
supply in Santa Monica and we must now import more than 80 percent of
our drinking water, putting further strain on California's already
fragile water supply system. The effects of MTBE can be devastating:
Once released from a tank or pipeline, MTBE travels
quickly and readily dissolves in water unlike the other chemicals in
gasoline;
MTBE has an uncanny ability to find its way into drinking
water wells. Although gasoline has been around for decades, it is only
the relatively recent addition of MTBE that has caused widespread water
contamination in Santa Monica and elsewhere;
MTBE attacks swiftly. Once discovered, MTBE levels in the
city's wells rose more quickly than any other water contaminant we had
ever encountered; and
MTBE strikes at the heart of public confidence in the
safety of drinking water supplies. People will not drink water that
smells and tastes like turpentine, nor should they be expected to.
S. 1850 is a step in the right direction toward stricter oversight
of underground storage tanks and freeing up of additional financial
resources to facilitate inspection, enforcement and corrective actions.
However, based on our ``real world'' experience in Santa Monica we
believe that S. 1850 should go much farther in some keys areas.
First, the allocation of $200 million for corrective actions
related to MTBE releases is far less than what will be needed to clean
up the MTBE mess nationwide. The projected cost to just cleanup Santa
Monica's main well field is over $200 million. Current estimates for
the total cost of nationwide MTBE clean-up are around $30 billion.
Clearly, the costs for remediation of MTBE and other water
contamination must ultimately be raid for by the polluter. But,
unfortunately, those companies responsible for ceasing the MTBE
pollution in Santa Monica and many other communities have not yet
stepped forward to do what's right. Until they do, significant
financial assistance will be required to start the clean-up process.
Second, let's make sure we are doing everything that we can to keep
that underground storage tanks from leaking in the first place. Even
the newest underground storage tanks leak, and the leaks are often not
in the tank itself but in the piping that connects the tank to the fuel
dispensing systems. A primary focus in S. 1850 needs to be placed on
inspection, training and enforcement. Too often in the past, operators
of underground fuel tanks have been able to act irresponsibly because
the threat of enforcement was remote or even nonexistent. Let's make
sure that the tools and resources are in place so that non-compliant
tanks are taken out of service and the public and environment are
better protected.
Finally, nothing in S. 1850 should preclude any State or local
government from seeking legal redress, taking legal action or adopting
regulations and standards of performance with respect to underground
storage tanks that are more stringent than Federal law, and S. 1850
should ensure that all underground storage tank installations at
Federal facilities are subject to the same requirements as everyone
else. S. 1850 should provide a floor, but should not hamper State or
local governments in their efforts to either protect human health and
the environment or pursue polluters.
If S. 1850 incorporates the stronger provisions suggested above, it
can become a very significant toot to not only begin the cleanup of
existing MTBE groundwater contamination but to prevent future storage
tank leaks as well.
The two irrefutable facts that have emerged from Santa Monica's
odyssey as the ``poster child'' for MTBE water contamination are: (1)
underground storage tanks leak; and (2) it is extremely difficult to
get polluters to pay for the cleanup of their pollution. Please
strengthen S. 1850 so that we will all have a better chance of not
repeating the mistakes of the past. We need to create better options,
which is what S. 1850 is about. Thank you for the privilege of
testifying before your subcommittee today.
__________
Statement of Grant Cope, on Behalf of U.S. Public Interest Research
Group
I. SUMMARY
I would like to thank Senator Boxer for holding a hearing on the S.
1850, and examining the issues related to improving the Leaking
Underground Storage Tank program (``UST''). We would also like to thank
the Senator for allowing us to submit testimony on this issue. Leaking
underground storage tanks present a serious threat to public health and
environmental quality. The current Federal program, which most States
implement through their own programs, is not inadequately addressing
threats posed by underground storage tanks. Federal legislation is
needed to strengthen Federal and State enforcement authorities,
increase the frequency of inspections, expand pollution prevention
efforts, waive sovereign immunity at Federal facilities, and augment
existing resources to ensure that Federal and State UST programs
protect public health and the environment. U.S. PIRG opposes any
legislation that weakens existing protections, including EPA's
authority to order the cleanup of contamination.
II. LEAKING UNDERGROUND STORAGE TANKS PRESENT A SIGNIFICANT THREAT TO
PUBLIC HEALTH
Groundwater is a fundamental resource for human life and economic
vitality in our Nation. Fifty percent of the people in the United
States use groundwater for drinking water, including virtually 100
percent of people in many rural areas.\1\ In 29 States, over 50 percent
of the population rely on groundwater for drinking water.\2\
---------------------------------------------------------------------------
\1\ EPA, Safe Drinking Water Act, Section 1429 Groundwater Report
To Congress, EPA-816-99-016, ii (1999).
\2\ Id, at 4.
---------------------------------------------------------------------------
Leaking underground storage tanks present significant risks to
groundwater quality, and therefore to human health, environmental
quality, and economic growth. To address the risks posed by leaking
underground storage tanks, Congress amended the Resources Conservation
and Recovery Act in 1982 to create a program that would cleanup
contamination related to underground storage tanks, and prevent future
contamination. Despite Congress's creation of the UST program, leaking
underground storage tanks continue to present serious threats to public
health and the environment.
As of February 28, 1999, there were about 390,000 releases from
regulated underground storage tanks.\3\ These releases present serious
threats to public health and environmental quality. Many State and
Federal agencies rank leaking underground storage tanks as the most
prominent source of groundwater contamination. For example, 37 States
listed leaking underground storage tanks the No. 1 ``major source of
groundwater contamination.''\4\ EPA found that leaking underground
storage tanks are one of the sources most frequently cited as being of
greatest concern as a potential source of groundwater contamination.\5\
---------------------------------------------------------------------------
\3\ Id, at 16.
\4\ EPA, National Water Quality Inventory, 1998 Report To Congress,
EPA 816-R-00-013, 8 (2000).
\5\ Supra, Note 3.
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Gasoline leaking from underground storage tanks is one of the most
common sources of groundwater contamination.\6\ Gasoline contains more
than 150 chemicals, including benzene, toluene, and automotive
gasolineylene.\7\ Benzene is a recognized carcinogen, and reproductive
and developmental toxicant.\8\ Toluene is a recognized developmental
toxicant, and is suspected of also adversely impacting the
cardiovascular, immune, respiratory, and reproductive systems.\9\ These
chemicals, and many other held in underground storage tanks threaten
public health.
---------------------------------------------------------------------------
\6\ Id.
\7\ Agency for Toxic Substances and Disease Registry, ToxFaqs Fact
Sheet on Automotive Gasoline, 1 (1996).
\8\ Scorecard, downloaded on May 6 at http://www.scorecard.org/
chemical-profiles/.
\9\ Scorecard, downloaded on May 6 at http://www.scorecard.org/
chemical-profiles/.
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A. Many States That Depend On Groundwater For Drinking Water Have A
High Number Of Leaking Tanks
EPA has ranked states based on the number of confirmed releases
from underground storage tanks.\10\ EPA ranked States in three tiers:
(1) Tier One included States with 10,001 to 34,000 confirmed releases;
(2) Tier Two included States with 5,001 and 10,000 confirmed releases;
and (3) Tier Three included State with 0 to 5,000 confirmed releases.
As will be discussed later, these numbers could be an underestimate due
to inadequate inspections.
---------------------------------------------------------------------------
\10\ EPA, Safe Drinking Water Act, Section 1429 Groundwater Report
To Congress, EPA-816-99-016, 16 (1999).
---------------------------------------------------------------------------
Fifty-six percent of the States have over 5,001 confirmed releases.
There are 12 States ranked as ``Tier One'', in nine of these States,
over 40 percent of the population get drinking water from groundwater.
Eighty-two percent of States ranked as Tier One or Two (23 of 28
States) use groundwater as a source of drinking water for over 40
percent of their population. This data paints a very troubling picture,
and highlights the need for increasing protections against existing and
potential sources of contamination from underground storage tanks.
III. STATES ARE FAILING TO COMPLY WITH REQUIREMENTS TO PROTECT PUBLIC
HEALTH AND THE ENVIRONMENT
In May 2001, the General Accounting Office published a report to
Congress examining State and Federal Underground Storage Tank
programs.\11\ GAO concluded that these programs were in need of reforms
to ensure that underground storage tanks were adequately regulated to
protect public health and environmental quality.
---------------------------------------------------------------------------
\11\ General Accounting Office, Improved Inspections and
Enforcement Would Better Ensure the Safety of Underground Storage Tanks
(2001).
---------------------------------------------------------------------------
A. GAO Conclusions
GAO reached nine specific conclusions. In general, these
conclusions demonstrate that Underground Storage Tank programs are of
widely varying quality, with many inadequately protecting public health
and environmental quality. GAO's conclusions demonstrate a serious need
to significantly increase EPA's ability to enforce Federal requirements
for tanks, and to take other steps to increase the thoroughness and
frequency of inspections.
States Ranked By Confirmed Releases From Underground Storage Tanks
--------------------------------------------------------------------------------------------------------------------------------------------------------
Confirmed Percent Confirmed Percent
Rank State Releases* Pop. use GW Rank State Releases* Pop. Use GW
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... FL 1 92.8 26 GA 2 41.4
2....................................................... WI 1 69.8 27 VA 2 34.1
3....................................................... NC 1 49.8 28 KY 2 25.1
4....................................................... TN 1 47 29 HI 3 96.5
5....................................................... OH 1 46.3 30 ID 3 96.2
6....................................................... MI 1 46 31 NM 3 89.9
7....................................................... CA 1 45.5 32 SD 3 69.8
8....................................................... TX 1 45.4 33 DE 3 66.1
9....................................................... PA 1 41.2 34 VT 3 65
10...................................................... NY 1 34.6 35 NH 3 61.7
11...................................................... IL 1 33.2 36 LA 3 60.9
12...................................................... MD 1 30.8 37 AK 3 60.8
13...................................................... MS 2 92.1 38 ME 3 60.4
14...................................................... NE 2 87.1 39 WY 3 58.5
15...................................................... MN 2 79.8 40 UT 3 57
16...................................................... IA 2 78.1 41 ND 3 56.9
17...................................................... IN 2 63.6 42 CT 3 54.1
18...................................................... WA 2 60.8 43 MT 3 53.4
19...................................................... AZ 2 60.2 44 AR 3 53.1
20...................................................... MO 2 53.8 45 KS 3 50.4
21...................................................... NJ 2 53.2 46 WV 3 43.3
22...................................................... AL 2 51.9 47 OK 3 33.9
23...................................................... MA 2 45.7 48 NV 3 30.8
24...................................................... SC 2 44.9 49 RI 3 26.5
25...................................................... OR 2 43.6 50 CO 3 22.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Rank based on the following range of releases: 1=10,000 to 34,000; 2=5,001 to 10,000; and 3=0 to 5,000
Please Note: Confirmed releases could be an underestimate due to lack of accurate inspections.
GAO's specific conclusion included the following:
(1) About 30 percent of the regulated tanks (over 200,000) ``were
not being operated or maintained properly, increasing the risk of soil
and groundwater contamination.''\12\
---------------------------------------------------------------------------
\12\ Id, at 2.
---------------------------------------------------------------------------
(2) Operation and maintenance problems were largely a result every
person who comes into contact with the tank, including tank owners,
installers, operators and removers, being poorly trained.\13\
---------------------------------------------------------------------------
\13\ Id, at 2.
---------------------------------------------------------------------------
(3) EPA and State compliance data for tanks is unreliable because
States and several EPA regions do not physically inspect all tanks for
compliance, but rather, merely estimate compliance rates based on
inspections of selected tanks or owners' self-certifications.\14\
---------------------------------------------------------------------------
\14\ Id, at 3.
---------------------------------------------------------------------------
(4) An estimated 76,000 empty or inactive tanks may still pose
threats to human health and environmental quality and therefore should
be inspected and removed when merited.\15\
---------------------------------------------------------------------------
\15\ Id.
---------------------------------------------------------------------------
(5) Five States reported that at least half of their non-upgraded
tanks are still in use.\16\
---------------------------------------------------------------------------
\16\ Id, at 8.
---------------------------------------------------------------------------
(6) Fourteen States reported some upgraded tanks still leaked, and
twenty did not know whether their tanks leaked.\17\
---------------------------------------------------------------------------
\17\ Id, at 4.
---------------------------------------------------------------------------
(7) A California study found that tanks with upgraded equipment do
not provide complete protections against leaks, and that monitoring
systems cannot guarantee to detect leaks.\18\
---------------------------------------------------------------------------
\18\ Id.
---------------------------------------------------------------------------
(8) Twenty-seven States and EPA lacked the authority to use the
most effective enforcement tool to ensure compliance with protections:
prohibiting fuel deliveries to non-compliant tanks.\19\
---------------------------------------------------------------------------
\19\ Id.
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(9) Forty-seven States needed additional resources to adequately
enforce the protections.\20\
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\20\ Id, at 10.
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B. GAO Recommendations to EPA
GAO made four specific recommendations to correct some of the
deficiencies noted in their report. First, GAO recommended that EPA
work with States to determine which empty or inactive tanks pose the
greatest potential health and environmental risks.\21\ This should
include setting up timetables for owners, States or EPA to remove or
close these tanks in compliance with Federal requirements and taking
enforcement action against entities that continue to operate tanks
without required equipment.\22\ Second, GAO recommended that EPA
increase their training and support capacities for States.\23\ Third,
GAO recommended that EPA negotiate with States to determine a minimum
frequency for physical inspection of all tanks.\24\ Fourth, GAO
recommended that EPA tell Congress how much additional resources are
needed to ensure tanks comply with Federal requirements.\25\
---------------------------------------------------------------------------
\21\ Id, at 18.
\22\ Id, at 19.
\23\ Id.
\24\ Id.
\25\ Id.
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C. GAO Recommendations to Congress
GAO also made two broad recommendations to Congress. First, GAO
recommended that Congress want to consider increasing resources to the
program.\26\ Second, GAO recommended that Congress may want to
authorize Federal requirements for physical inspection of tanks on a
regular basis; prohibitions on the delivery of fuel to tanks that are
out of compliance with Federal requirements; and States to prohibit
fuel deliveries under similar circumstances.\27\
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\26\ Id.
\27\ Id.
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IV. S. 1850 SHOULD BETTER ADDRESS THREATS TO PUBLIC HEALTH FROM
LEAKING TANKS
U.S. PIRG has reviewed S. 1850, the ``Underground Storage Tank
Compliance Act of 2001.'' U.S. PIRG agrees with the need to increase
compliance with protections for public health and environmental quality
related to underground storage tanks. However, we believe that S. 1850
should be substantially strengthen in 15 ways, consistent with the
GAO's finding and good public policy respecting public health and
environmental quality. Further, in several key respects, S. 1850 could
weaken protections. Therefore, as elaborate below, U.S. PIRG suggests
the following modifications to S. 1850.
A. Owners and Operators Should Be Liable For All Corrective Action
Costs
U.S. PIRG supports the polluter pays principle, which holds that
polluters should pay to clean up their contamination. S. 1850 could
relieve owners and operators of underground storage tanks of their
responsibility to compensate the government for money expended to clean
up contamination from tanks.\28\ Therefore, U.S. PIRG opposes this
provision of S. 1850.
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\28\ S. 1850, p. 3 lines 6-10.
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U.S. PIRG urges Congress to ensure that owners and operators are
held liable for the full cleanup costs incurred by government agencies.
If owners and operators could not pay off the entire amount, then they
should be allowed to pay off these costs little by little. To
accomplish this goal, this current section should be modified to allow
EPA and States to work out payment plans with owners and operators that
can demonstrate that they cannot pay the full costs of cleanup
activities.
B. Congress Should Encourage States To Fund Their Programs Using The
Polluter Pays Principle
U.S. PIRG urges Congress to encourage States to create programs
that shift program costs to entities that use regulated underground
storage tanks. We suggest that Congress incorporate this incentive by
setting aside a percentage of the funds that can be distributed only to
States that have shifted costs onto such entities. This would conserve
trust fund resources and place the costs of State programs on State
entities that are being regulated.
C. Congress Should Require State and Local To Enforce Requirements That
Provide Equal Or Greater Protection As Federal Requirements
U.S. PIRG urges Congress to ensure that State and local entities
implement and enforce requirements that provide an equal or greater
level of protection as Federal requirements.\29\ Leaking underground
storage tanks represent a serious threat to public health and
environmental quality. This addition would help ensure that State and
local enforcement officials work to implement and enforce strong
protections against contamination from these tanks.
---------------------------------------------------------------------------
\29\ S. 1850, p. 3, lines 11-18.
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D. EPA Should Not Have To Discuss Reallocation With Tank Owners and
Operators
U.S. PIRG does not believe that EPA should have to consult with
tank owners and operators prior revising the reallocating process.\30\
The decision to reallocate funds should be based on protecting public
health and environmental quality. EPA could reasonably consult with
States that have knowledge about program needs related to this issue.
However, owners and operators of tanks could have more parochial
interests. Therefore, EPA should not be required to consult with these
entities.
---------------------------------------------------------------------------
\30\ S. 1850, p. 5, lines 12-13.
---------------------------------------------------------------------------
E. U.S. PIRG Opposes S. 1850's Prohibition On Cost Recovery
U.S. PIRG supports the polluter pays principle, which holds that
polluters should pay to clean up their contamination. Consequently,
U.S. PIRG opposes S. 1850's prohibition on cost recovery.\31\ Congress
should encourage--not prohibit--EPA from undertaking cost recovery
actions against owners and operators for cleanup activities related to
contamination from leaking underground storage tanks.
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\31\ S. 1850, p. 7, lines 1-6.
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F. Congress Should Strengthen S. 1850's Inspection Requirements
U.S. PIRG urges Congress to strengthen S. 1850's inspection
requirements in two key ways. First, Congress should require physical
inspections. Second, Congress should disallow self-certification, due
to the potential of conflicts of interests noted by GAO. These
requirements would put a premium on preventing contamination, which
will conserve limited public resources and prevent potential threats to
public health and the environment.
G. Congress Should Require Community Involvement In Operator Training
Procedures
U.S. PIRG urges Congress to incorporate community members into the
decisionmaking process related to operator trainings.\32\ Many
community groups have technical and practical experience with
appropriate activities related to operating and maintaining underground
storage tanks. Congress should require Federal and State agencies to
utilize this knowledge where it is available.
---------------------------------------------------------------------------
\32\ S. 1850, p. 8, lines 3-10, and p. 9, lines 7-14.
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H. Congress Should Require State Guidelines To Consider The Importance
Of State Groundwater Resource
U.S. PIRG urges Congress to require States to consider the
potential risks posed by leaking underground storage tanks to
groundwater quality and quantity, and the potential future importance
of groundwater for the State in developing guidelines and strategies
for training operators.\33\ This could help to increase the
preventative nature of training. U.S. PIRG suggests that Congress add
the following language to S. 1850 in the relevant sections, ``The
importance of high quality groundwater and the need to emphasize
preventing contamination.''
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\33\ S. 1850, p. 8, lines 2-25, and p. 9, lines 7-14.
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I. Congress Should Not Limit EPA's Authority To Issue Administrative
Orders
U.S. PIRG opposes the constraints on EPA's authority to issue
orders to clean up contamination contained in S. 1850.\34\ Congress
should not restrict in any way EPA's authority to protect public health
and environmental quality. However, the language contained in S. 1850
could be interpreted in this fashion. Therefore, Congress should
clarify its intent that EPA should not be restricted in any way from
issuing cleanup orders when there may be a threat to public health or
environmental quality.
---------------------------------------------------------------------------
\34\ S. 1850, p. 12, lines 23-24, and p. 13, lines 1-14.
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Conversely, Congress should encourage EPA and the States to heavily
fine repeat violators of protections for public health and the
environment. Therefore, U.S. PIRG agrees that Congress should direct
EPA to consider whether owners and operators of tanks and transporters
of fuel have repeatedly violated such protections. U.S. PIRG also urges
Congress to clarify that EPA should consider such past actions, or
activities that are inconsistent with established training programs, as
a rationale to increase the gravity of fines. Of course, at a minimum,
EPA should collect any economic gain resulting from the violation and
assess a penalty adequate to ensure the entity will not again violate
any requirements.
J. Congress Should Make Authority To Prohibit Fuel Shipments, Operator
Training Requirements, and Inspection Provisions Self-Effecting
U.S. PIRG urges Congress to make critical enforcement tools and
preventative measures self-effecting, so that this is no ambiguity or
delay in their use. In particular, Congress should clarify that EPA and
State authorities can prohibit fuel shipments to tanks that are out of
compliance upon S. 1850 date of enactment.\35\ Similarly, Congress
should state that S. 1850's operator training requirements \36\ and
inspection provisions \37\ are also unambiguously enforceable. This
would ensure that EPA and States could protect public health and
environmental quality despite any delay in promulgating regulations.
---------------------------------------------------------------------------
\35\ S. 1850, p. 13, lines 21-14, and p. 14, lines 1-20.
\36\ S. 1850, p. 8, lines 1-24, and p. 9, lines 1-20.
\37\ S. 1850, p. 7, lines 7-21.
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K. Congress Should Require More Specific Data
U.S. PIRG supports S. 1850's requirement for a database on issues
related to underground storage tanks. However, we urge the Congress to
incorporate requirements that State collect and also make publicly
available information on the owners and operators of all underground
storage tanks. Providing the public with information about polluters is
a proven, low-cost method to increase compliance and decrease
pollution. S. 1850 should incorporate the principle of right-to-know by
requiring the collection and dissemination of such information.
L. EPA Should Develop Uniform Guidelines For State Data Bases
U.S. PIRG supports S. 1850's requirement that States make
information related to underground storage tanks available to the
public electronically.\38\ U.S. PIRG urges Congress to require EPA to
develop software that states use to supply such information. This would
make State databases readily comparable, which could aid enforcement
efforts and facilitate the public's right-to-know about potential
sources of contamination in their communities.
---------------------------------------------------------------------------
\38\ S. 1850, p. 16, lines 17-4.
---------------------------------------------------------------------------
M. Congress Should Unambiguously Waive Federal Sovereign Immunity
U.S. PIRG urges Congress to unambiguously waive sovereign immunity
for Federal agencies that own or operate underground storage tanks.\39\
Federal facilities should not be above the law. If their actions
threaten public health and environmental quality, then EPA and States
should be able to fine these agencies. Courts are loath to find such
waivers absent an unambiguous statement from Congress. Therefore,
Congress should amend S. 1850 to incorporate an unambiguous waiver of
sovereign immunity.
---------------------------------------------------------------------------
\39\ S. 1850, p. 16, lines 5-23.
---------------------------------------------------------------------------
N. Congress Should Increase The Authorization Of Appropriations
U.S. PIRG supports an increase in the authorization of
appropriations for the leaking underground storage tank program. GAO
recommended that Congress consider increasing resources to the program.
However, S. 1850 currently proposes declining authorizations.\40\ This
is contrary to GAO's recommendations and sends the wrong signal
regarding the need to address severe deficiencies in a regulatory
program charged with protecting public health, environmental quality,
and economic growth from a significant threat. Therefore, U.S. PIRG
recommends that Congress direct EPA to spend unused funds currently in
the trust fund and then increases authorized appropriations consistent
with program needs.
---------------------------------------------------------------------------
\40\ S. 1850, p. 18, lines 17-24, and p. 19, lines 1-16.
---------------------------------------------------------------------------
O. Congress Should Direct Federal Entities And States To
Comprehensively Assess The Adequacy Of Financial Responsibility
Mechanisms
U.S. PIRG urges Congress to require a comprehensive review of the
adequacies of financial responsibility mechanisms. There is data
demonstrating that facilities that have a requirement to maintain
similar financial responsibility requirements under other programs may
not be adequately complying with such requirements, and that such
requirements may be inadequate to protect public health.\41\ Given the
threats posed by leaking underground storage tanks, U.S. PIRG believes
that Congress should study and problems and direct appropriate steps to
taken to ensure tank owners and operators can cover the cleanup costs
associated with leaking underground storage tanks.
---------------------------------------------------------------------------
\41\ EPA Office of Inspector General, RCRA Audit Report, RCRA
Financial Assurance for Closure and Post-Closure, 2001-P-007 (2001).
---------------------------------------------------------------------------
V. CONCLUSION: CONGRESS SHOULD INCREASE--NOW WEAKEN--PROTECTIONS AT
LEAKING UNDERGROUND STORAGE TANKS
Leaking underground storage tanks are a serious threat to public
health and environmental quality demanding immediate congressional
attention. Congress should act to increase, not weaken, protections. As
discussed above, S. 1850 contains provisions that would weaken
protections. U.S. PIRG opposes any such weakening of protections for
public health. U.S. PIRG believes that if Congress incorporates the
suggestions outlined above and then enacts the legislation, Congress
will have taken a significant step toward addressing the risks posed by
leaking underground storage tanks.
U.S. PIRG thanks the Senate Environment and Public Works for
providing an opportunity to testify on this important issue and
legislation.
__________
Statement of Kathleen Stiller, Delaware Department of Natural Resources
and Environmental Control, on Behalf of the Association of State and
Territorial Solid Waste Management Officials (ASTSWMO)
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, non-profit 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 dialog.
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 startup 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:
SECTION 2. LEAKING UNDERGROUND STORAGE TANKS
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 percent of the annual appropriation was divided among
the States, so a mandatory 80 percent 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.
SECTION 3. INSPECTION OF UNDERGROUND STORAGE TANKS
Most of our members agree in principle with achieving the goal that
all USTs regulated under Subtitle I be inspected every 2 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 3-year
inspection cycle (which coincides with a 3-year cathodic protection
test) and where private, third party inspectors are utilized, a 2-year
inspection cycle would be problematic.
In States with a larger UST universe, the ability to implement a 2-
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 2 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 2-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 followup enforcement and it is unclear whether the authorized
level of funding in this bill includes money for conducting followup
enforcement activities.
SECTION 4. OPERATOR TRAINING
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.
SECTION 5. REMEDIATION OF MTBE CONTAMINATION
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. Two-
hundred million dollars 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
percent 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 percent.
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.
SECTION 6. RELEASE PREVENTION AND COMPLIANCE
State program managers believe that an increase in inspection rates
and followup 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 2-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.
Government-Owned Tanks
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.
Incentives for Performance
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.
Red Tagging
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.
Databases
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.
__________
Statement of Arthur J. DeBlois III, on Behalf of the National
Association of Convenience Stores and the Society of Independent
Gasoline Marketers of America
I. INTRODUCTION
Good morning, Madam Chairwoman and members of the subcommittee. My
name is Arthur J. DeBlois. I am president and chief executive officer
of DB Companies, Inc., an independent motor fuels marketer
headquartered in Providence, RI. Our company owns and operates 86 ``DB
Marts'' in Rhode Island, Massachusetts, Connecticut and the Hudson
Valley of New York. In addition, we have 84 franchisee-operated
locations.
Thank you for inviting me to testify today on S. 1850--the
``Underground Storage Tank Compliance Act.'' I appear before the
subcommittee representing the National Association of Convenience
Stores (``NACS'') and the Society of Independent Gasoline Marketers of
America (``SIGMA'').
NACS is a national trade association of more than 2,000 companies
that operate over 119,000 convenience stores nationwide and employ 1.4
million individuals. Over 75 percent of NACS' member companies sell
motor fuels, and the convenience store industry sold more than 115
billion gallons of motor fuels in 2001, accounting for approximately 70
percent of all motor fuel sold across the Nation.
SIGMA is a national trade association of approximately 260 motor
fuels marketers operating in all 50 States. SIGMA members supply over
28,000 motor fuel outlets and sell over 48 billion gallons of gasoline
and diesel annually--or approximately 30 percent of all motor fuels
sold in the Nation.
II. NACS' AND SIGMA'S CORE OBJECTIVES FOR UNDERGROUND STORAGE
TANK REGULATION
NACS and SIGMA have been long-standing and vocal advocates for
vigorous enforcement of Federal and State underground storage tank
(``UST'') regulations. With respect to Federal and State regulation of
petroleum USTs, NACS and SIGMA have three key policy objectives:
Ensure that an adequate percentage of funds appropriated
from Leaking Underground Storage Tank (``LUST'') Trust Fund is
delivered to State UST programs for proper regulatory enforcement and
remediation assistance.
Ensure all UST owners and operators--including
governmental agencies, commercial operators, and Native American
tribes--are held to the same standards and comply with existing UST
regulations.
Facilitate prompt remediation of releases from USTs.
Some persons attending today's hearing may wonder why petroleum and
convenience store marketers support effective and comprehensive
enforcement of the UST regulations. Let me explain our position.
First, it is the correct and environmentally sound position to make
as responsible businesses. The motor fuels marketing industry has a
responsibility to our customers and the communities we serve to assure
that we conduct our business in an environmentally safe manner. If
marketers are not complying with Federal and State tank regulations and
leaks occur, then our entire industry receives a ``black eye'' in the
public's perception.
Second, since EPA promulgated its UST requirements in 1988, NACS
and SIGMA members have spent hundreds of millions of dollars complying
with the tank standards. My company spent over $5 million to comply
with the 1998 deadline to upgrade our tanks. Additionally, we spend
approximately $250,000 annually to maintain our compliance with these
regulations. Clearly, if my competitors and other tank owners have not
undertaken similar investments, they have enjoyed, and will continue to
enjoy, a competitive advantage over companies like ours.
Finally, many of our members, including both large companies and
the smaller ``mom-and-pop'' retailers, have closed locations as a means
of compliance with the 1998 tank deadline. I testified many years ago
at a hearing held by the late Senator John Chafee that, with a 10-year
phase-in of the requirements, there is absolutely no reason why any UST
owner and operator should not be in compliance. Tanks that have not
been upgraded by now, almost 3\1/2\ years after the 1998 deadline and
13 years after the deadline was announced, should be closed. It does
not matter if these tanks are owned by a Federal or local government
Agency or a private concern. A tank that has not been upgraded
represents an unacceptable risk to our environment and must be closed.
This point was best articulated by the late Senator Chafee in a
December 1998 letter to EPA. He stated that there is no justification
for EPA or the States to distinguish between private- and publicly
owned tanks when it comes to protecting human health and environment. A
leak from the local public works or fire department's tank causes the
same environmental harm as a release from a retail gasoline outlet's
UST.
Accordingly, NACS and SIGMA support the key elements of S. 1850--
namely, expanding the allowable uses of the LUST Trust Fund moneys for
UST enforcement; requiring every UST to be inspected at regular
intervals; directing EPA to publish guidelines for training operators
in the proper operation and maintenance of USTs; requiring EPA and the
States to publish strategies for ensuring compliance for USTs owned by
governmental agencies at every level; and providing additional funding
for the remediation of certain MTBE or high-priority UST releases.
III. BACKGROUND ON FEDERAL UST REGULATION
Congress recognized in the mid-1980's that leaking petroleum USTs
posed a threat to the environment. To respond to this threat, Congress
mandated that all petroleum USTs must be upgraded, replaced, or closed
by December 22, 1998. Despite the fact that UST owners and operators,
including Federal, State, and local government agencies, knew about
this deadline for over a decade, the Environmental Protection Agency
recently estimated that as many as 17 percent of the Nation's USTs have
not yet come into compliance.
To assist EPA and the States to implement the 1998 deadline,
Congress in 1986 established the LUST Trust Fund and enacted a 0.1-cent
per gallon Federal tax on petroleum products--the proceeds from which
are directed to the LUST Trust Fund. Each year, Congress appropriates
money from the Trust Fund to be used by EPA and the States to oversee
UST corrective actions. EPA has generally allocated an average of 80 to
85 percent of each year's Trust Fund appropriations to States under
cooperative agreements.
IV. CURRENT STATUS OF TRUST FUND
According to the Bush Administration's fiscal year 2003 budget, the
LUST Trust Fund balance at the end of 2002 will be over $1.9 billion.
Trust Fund tax collections in fiscal year 2003 will be $193 million;
and, the Trust Fund will earn $113 million in interest. Despite this
huge fund balance, the Bush Administration has requested only that $73
million be appropriated from the Trust Fund for fiscal year 2003--less
than the amount of the interest the Trust Fund will earn during the
year!
Given the media attention to UST leaks over the past 5 years, which
has focused particularly on MTBE contamination of groundwater, the low
level of appropriations from the Trust Fund is inexplicable. These
moneys, which were collected from sales of gasoline and diesel fuel
over the past 15 years, should be put to the use for which they were
collected--remediating releases from petroleum USTs.
NACS and SIGMA urge this committee to use its influence to increase
substantially the fiscal year 2003 appropriations from the LUST Trust
Fund.
V. RECENT UST LEGISLATION AND 2001 GAO REPORT
This is not the first time that this committee has considered UST
reform legislation. This committee passed narrower UST reform
legislation during the 105th Congress, and the House of Representatives
passed similar bills in both the 104th and 105th Congresses.
Unfortunately, the full Senate never considered this committee's bill
in 1998. As a result, these important legislative reforms have
languished, until S. 1850 was introduced by Senator Chafee last year.
The U.S. General Accounting Office (``GAO'') released a report in
May 2001 entitled ``Improved Inspections and Enforcement Would Better
Ensure the Safety of Underground Storage Tanks'' (GAO-01-464). GAO
concluded, in part, that EPA and the States have failed to enforce
consistently the existing UST requirements. GAO estimated that, nearly
3 years after EPA's deadline of the 10-year phase-in (December 22,
1998) for environmentally protective tanks, only 89 percent of the
regulated USTs had been replaced, upgraded or closed. GAO identified
State and local governmental agencies and very small businesses as the
primary categories of UST owners and operators who remain in non-
compliance. GAO also indicated that rates for ongoing UST leak
detection and compliance are lower than expected.
The GAO report contained the following recommendations to Congress:
Increase the amount of funds Congress provides from the
Trust Fund;
Authorize States to spend a portion of these moneys on
training, inspection, and enforcement;
Authorize EPA to establish a Federal requirement for
onsite inspections of all tanks on a periodic basis;
Authorize EPA to prohibit the delivery of fuels to tanks
that do not comply with Federal requirements, and establish a Federal
requirement that States have the authority to prohibit fuel deliveries
into non-complying tanks.
VI. S. 1850 WOULD IMPLEMENT THE GAO RECOMMENDATIONS
S. 1850, introduced by Senator Chafee and supported by a bi-
partisan group of co-sponsors (including Senators Jeffords, Smith,
Carper, Inhofe, Reed, and Warner), contains the following provisions to
implement the GAO recommendations:
Require a minimum of 80 percent of the funds appropriated
from the Trust Fund be delivered to States;
Permit States to use Trust Fund moneys to enforce the 1998
UST deadline;
Require all regulated USTs to be inspected every 2 years;
Require States to develop UST operator training programs
based on EPA guidelines;
Require States and Federal agencies to submit to EPA a
strategy to ensure that all tanks operated by Federal, State, and local
governments comply with existing regulations;
Require EPA to issue regulations to authorize EPA or the
States to prohibit the delivery of fuels into non-complying USTs;
Authorize $200 million for remediation of MTBE releases;
and,
Authorize a total of $460 million in appropriations from
the Trust Fund.
NACS and SIGMA strongly support S. 1850, with one suggested
amendment, and urge this committee to approve this important
legislation at the earliest possible date.
VII. SUGGESTED AMENDMENT TO S. 1850
There is one provision in S. 1850 that NACS and SIGMA would like to
change. As introduced, S. 1850 limits the use of LUST Trust Fund moneys
by State UST reimbursement funds to situations where the UST owner or
operator would face financial hardships but for the reimbursement. This
provision encourages non-compliance by UST owners and operators. We
believe that elimination of this limitation would expedite UST clean-
ups and would leverage limited tank remediation funds at the State
level.
Most UST cleanups are managed by responsible parties--that is, tank
owners or operators--and are overseen by State UST implementing
agencies. The UST corrective action program largely has worked
extremely well. As the chart attached to my testimony outlines for the
States represented by members of this committee, UST clean-ups in your
States are taking place at a consistent pace.
State UST reimbursement funds have expended more than $5 billion
for UST clean-ups over the past decade. According to State data, most
State UST reimbursement funds are solvent; however, some of these funds
have been paying claims at a faster rate than the revenues they
receive. A growing concern from NACS and SIGMA members is that some
State legislatures, increasingly strapped for cash, might ``borrow'' or
raid the cash balances in these State UST assurance funds. This
occurred in my home State of Rhode Island during the State's last
budget ``crunch.'' Cash flow, therefore, remains critical to the
success of the State UST reimbursement funds, and allowing a State to
use some of its LUST Trust Fund moneys from EPA for its UST
reimbursement fund is one way to leverage limited clean-up resources.
There is also a misplaced perception that eliminating the
limitation in S. 1850 would send millions of dollars back to the major
oil companies. NACS and SIGMA do not believe that to be the case. Most
major oil companies were the first to replace their tanks, and likely
have received the bulk of any clean-up reimbursements they were owed
under the State UST assurance funds.
UST owners and operators are more likely to initiate and complete
tank clean-ups if they know that, after they pay the required ``front
end,'' or deductible, amount, the State UST assurance fund will timely
reimburse their clean-up expenses. Stated differently, if
reimbursements become stretched out over a longer period of time, the
UST owner or operator has an incentive to slow down the pace of their
clean-ups. Thus, limiting the use of LUST Trust Fund moneys by State
UST reimbursement funds will do nothing to maintain the pace of
corrective actions.
SIGMA and NACS also feel that removing the limitation also will
assist with the clean-up of high-priority releases, such as MTBE
contamination cases. If, for example, a small business can avoid
significant legal expenses by assigning their clean-up costs to a State
UST reimbursement fund, limited resources can be expended on clean-ups,
rather than lawyers and consultants.
NACS and SIGMA urge this committee to make this change to S. 1850
prior to reporting the bill to the full Senate. We stand ready to work
with the committee in crafting appropriate amendment language.
VIII. CONCLUSION
NACS and SIGMA appreciate this opportunity to present their views
on USTs and S. 1850. We look forward to working with the committee on
UST legislation and urge the committee to move this bill expeditiously.
I will be happy to answer any questions my testimony may have
raised. Thank you.
ATTACHMENT
Select State Financial Assurance Funds--Design Characteristics, Funding, Level of Activity, and Current Status
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Number of Sites
Number of Tanks Corrective Action Fund Coverage Per-Gallon Approximate Approximate Total Where Claims Average Cost Per Current Status of
State Covered Covered Deductible Annual Tank Fee Petroleum Fee Annual Revenues Current Balance Number of Have Been Paid Site at Completed Fund
(Millions) (Millions) Sites to Date Clean-up Sites
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
California..................... 180,000........... Yes............... Between $0 and N/A............... $0.012............ $190 $215.3 28,000 8,400 $98,000........... The fund is still
$10,000. receiving and
processing new
claims.
Colorado....................... 12,532............ Yes............... $10,000 for clean- $35............... $0.00-$0.009375... $22.6 $4.9 7,934 1,332 unknown........... The fund is
up; $25,000 for stable and
third party. solvent.
Connecticut.................... N/A............... Yes............... $10,000........... N/A............... N/A............... $11 $14.2 971 1,859 $1 million........ N/A
Delaware....................... 720............... Partial........... $2,500............ $50 (not used for $9 mils/gallon.... $1.35 $.488 115 115 $73,927........... No new claims are
State fund). currently being
accepted.
Florida........................ N/A............... Partial........... From $500 up to $50 for UST $0.02............. $203 $152 18,460 10,000 $200,000.......... The fund is
25 percent of all initial. stable and
costs. solvent.
Idaho.......................... 3,917............. Yes............... $10,000 for ASTs/ $25 for USTs/ASTs; Fee suspended Fee temporarily $30 291 117 $129,917.......... The fund provides
USTs; $100 for $5 for heating until surplus suspended insurance
heating oil. oil. drops to $15 coverage for
million. losses from
insured tanks
that occurred
during the
policy period.
Missouri....................... 40,000............ Yes............... $10,000........... None.............. $0.003125......... $17.9 $40 3,914 1,068 $41,986........... The fund insures
owners/operators
of USTs and ASTs
containing
petroleum, as
long as
compliance is
demonstrated.
Montana........................ N/A............... Partial........... $17,500 per None.............. 3/4 cents per $6.4 $1.6 1,192 1,075 $11,780........... The fund is
release. gallon. currently
reimbursing
money at a rate
faster than
revenue is being
collected.
Nevada......................... 3,600............. Partial........... 10 percent for $100.............. $0.0075 $7.5 $9 $2 1,075 935 N/A............... The fund is
regulated tanks. million. alive, well, and
adding
improvements.
New Hampshire.................. N/A............... Yes............... .................. Motor fuel: $.014/ $.014............. $14.6 $12.9 1,843 1,398 $35,000........... The fund is
gal UST, $.001/ active in all
gal AST. project areas
and continues to
accept claims
for historical
and new
releases.
New Jersey..................... 30,000............ Yes............... None.............. N/A............... N/A............... $20 $8.7 900 600 .................. The fund is open
for businesses
that submitted
applications by
1/01/99.
New York....................... N/A............... Yes............... N/A............... 1100-2000 gallons: $0.08 per barrel $35 $2.4 178 N/A unknown........... The fund is a non-
$50 every 5 transferred by a reimbursement
years; 2001-4999 MOSF. fund.
gallons: $150
every 5 years;
5000-399,999
gallons: $250
every 5 years.
Ohio........................... 23,575............ Yes............... $55,000 std $450/$550K N/A............... $9.5 $43.4 unknown 2,116 $58,360........... The fund will
$11,000 rdc. deductible $600/ accept claims
$11K deductible. for releases
occurring before
and after 12/22/
98.
Oklahoma....................... 38,885............ Yes............... $5,000............ N/A............... $0.01............. $27 $17.2 3,891 1,922 $77,000........... The fund remains
solvent.
Oregon......................... N/A............... No, for State Not Available to $85............... N/A............... N/A N/A N/A N/A N/A............... Funded by State
Remediation Only. Private Parties. for State
Remediation
Pennsylvania................... 34,940............ Yes............... $5,000............ $.01.............. $0.0005........... $5 $335 3,000 2,950 N/A............... The fund now pays
97 percent of
all claims
presented with a
release date of
2/01/94 or
later.
Rhode Island................... 1,817............. Yes............... $20,000........... 0................. $0.01............. $4.2 $1.3 300 138 $57,024........... As of May 2001,
the Board was
having
difficulty
paying the
quarterly
disbursement due
to a severe
shortfall in
funds.
Government
entities had
taken the
majority of the
funds.
Vermont........................ 4,181............. Partial........... $250--$10,000..... $200/tank......... $0.01............. $5 $4.1 2,300 755 $24,776........... The fund is still
accepting claims
for new and old
releases.
Virginia....................... 43,022............ Partial........... $10,000-$200,000.. N/A............... $0.002-0.006 for $33.6 $1.9 16,038 3,760 $37,488........... The fund is
motor fuel, currently active
diesel, heating covering all new
oil. releases with no
sunset
provisions.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
All information is based on responses to a survey conducted by the Vermont Department of Environmental Conservation. Updated May 2001.
Statement of Roger Brunner, Vice President, Zurich North America
Chairman Boxer, Ranking Member Chafee, members of the subcommittee,
my name is Roger Brunner and I serve as a vice president with Zurich
North America's Specialties business unit. Zurich North America is a
unit of the Zurich Financial Services Group, the third largest provider
of property and casualty insurance in the United States. My role in the
organization is the management of our business that provides
environmental insurance for petroleum storage tanks.
Today, Zurich North America is the leading provider of storage tank
environmental insurance in the United States, insuring tens of
thousands of petroleum storage tanks, which is significantly more than
any other private insurer. We have been insuring petroleum insurance
tanks for leakage for approximately 10 years, and we have paid to clean
up thousands of leaking underground and above ground storage tanks.
Therefore, legislation that impacts the operations and risk management
practices of petroleum storage tanks significantly impacts our
business.
I am here this afternoon to voice support for the passage of the
Underground Storage Tank Compliance Act of 2001 (S. 1850). The highly
efficient localized storage and delivery of petroleum is currently a
fundamental component of our American lifestyle and economy, and we
expect localized petroleum storage to continue for the foreseeable
future. Because the delivery of petroleum as a fuel source is such a
highly efficient, low margin business for petroleum distributors (and
represents such a low cost product for businesses, public entities and
consumers), we sometimes lack respect for the extreme complexity
required for safely operating our petroleum storage and delivery
system. In short, we take it for granted.
It is truly amazing that this volatile and potentially dangerous
liquid can be extracted from deep beneath the surface of our planet,
transported across that planet, processed in highly technical
refineries, then transported, blended and stored locally. Even more
amazingly, this vital product is then sold to organizations and
individuals for comparatively less than a comparable amount of your
favorite fountain soft drink.
The combination of the low cost storage and delivery of petroleum
and the potentially significant damage by petroleum releases to human
health and the environment create the need for S. 1850. This
legislation is important. We believe that it will improve the
environmental safety of the local storage and delivery of petroleum.
Unfortunately, our experiences demonstrate the need for S. 1850.
Too often, inadequate training procedures or technical appreciation for
complex monitoring devices leads to otherwise avoidable petroleum
leaks. For example, last week I reviewed a case in the mid-Atlantic
with my claims department that involved a petroleum retail location
that had not appropriately tracked their inventory and did not know
that they were missing over 10,000 gallons of fuel. Imagine if this
operator really understood and executed the requirements expected of
him and had stopped the release at 100 gallons instead of 10,000; the
environmental contamination would have been limited, and thousands of
dollars in cleanup costs would have been saved.
Or, in a classic example of the need for enhanced training, I would
highlight the case in the mid-west where a local operator taped up the
mis-calibrated electronic release detection system that kept flashing
and making noises. Apparently, this complex electronic system had
issued earlier false warnings, and was viewed somewhat like the boy
that cried, ``wolf'' one too many times. Unfortunately, when the piping
joint came apart and there was a real release, no one paid attention
until it was too late.
The last personal observation I'll cite is a hospital in the
Southeast that was not sure who was responsible for keeping track of
the compliance obligations for its generator's diesel tanks. Because
the hospital's mission is patient care, their priority was naturally to
make sure that the tank was full in case the fuel was needed in event
of a power outage. This important and quite expected priority on
patient care, and the resulting lack of focus on storage tank
compliance, missed the fact that a long, slow petroleum leak was
occurring, thus causing significant environmental damage.
Each of these examples are real-life claims submitted to Zurich
North America. Each was the result of poor training and compliance
programs. And a significant amount of damage caused by each was
avoidable.
This is why we believe that S. 1850, if enacted, will have a
significant impact on the risk management practices of petroleum tank
operators in the United States. By requiring and funding storage tank
system compliance inspections at least every 2 years, and improving the
training of regulated facility operators, S. 1850 will go a long way
toward ensuring a better prepared and more technically proficient
operator base. As a significant stakeholder, we believe that this is an
appropriate utilization of the LUST Trust Fund.
Zurich North America urges immediate passage of this legislation.
We believe that as long as local storage and delivery of petroleum are
part of the fabric of our lives, environmental problems will occur.
However, we believe that over several years the implementation S. 1850
will help reduce the number of underground storage tank related
environmental and human health problems, and that it will be even more
effective in reducing the severity of these problems that do occur in
the future.
I applaud you for introducing such legislation, and look forward to
working with you in the weeks and months to come.
__________
Statement of Randy Golding and Shannan Marty, Tracer Research
Corporation
Tracer Research Corporation (Tracer) has been in the business of
detecting and locating leaks from tank,; and pipelines since 1984. Over
the past 18 years, the Company has tested over 3000 miles of piping and
over 200,000 tanks.
Tracer is regarded as having the most sensitive leak detection test
in the industry--The Company is frequently called in to Lest systems
that are the subject of litigation and has frequently worked with
regulatory agencies and private industry to locate release sources so
they can be repaired.
Tracer is currently contracted by the State of California to
perform the most comprehensive review of underground storage is and
piping systems at gas stations ever performed. The case studies
presented here are from the California Field Based Research project.
Tracer is making a number of recommendations today. These
recommendations are based on our years of experience and observation in
working with leak detection and gas stations. Some of the
recommendations call for the use of increased leak detection where
appropriate, others suggest that increased leak detection is not the
total answer. We begin this testimony with our recommendations.
RECOMMENDATION
Require deliveries to be monitored and signed off
Big vapor releases are a safety and environmental hazard
Don't commission new systems without testing them with
newer, more sensitive commissioning tests
(Commissioning test is the most important test to ever be
performed at a site)
Require deliveries to be monitored and signed off.--A significant
fraction, even a majority in some areas, of contamination at UST
facilities does not come from the UST system itself, but is instead
related to fuel handling practices. Examples of activities with
significant opportunity to release fuel include deliveries, UST system
maintenance, and dispensing. Increased scrutiny of delivery events has
not been addressed since the inception of the UST program, in spite of
the fact that it is a significant source of contamination.
Big vapor releases are a safety and environmental hazard.--Large
vapor leaks in UST systems with stage IT vapor recovery systems carp
release up to hundreds of gallons of gasoline vapors in the tank
backfill every day. This amount of vapors contains a few pounds of
gasoline. This amount of leakage can he environmentally significant.
Any water that infiltrates through the tank backfill from the surface
scrubs MTBE or any other oxygenate out of any vapor in the backfill and
transports it quickly to the water table. Vapor leaks can be a
significant source of groundwater contamination.
Don't commission new systems without testing them with newer, more
sensitive commissioning tests.--Many leaks that we find in systems have
been there since the system was built. Operations and maintenance
dollars are most beneficially spent on systems after they are
completely tight. All systems are tightness tested before they are put
into service, bit the sensitivity of these commonly used commissioning
tests is not good enough to protect the environment. A very sensitive
commissioning or recommissioning test allows maintenance dollars to be
spent on a tight system rather than a leaking one.
RECOMMENDATIONS
Increased inspections will assist in better overall
compliance but only cover what an inspector can see--they do not assess
the condition of the tanks or piping. Inspections must also include
sensitive leak detection tests that can identify both liquid and vapor
releases.
There is no effective hydrocarbon monitoring
EPA needs data--Create a central database for states to
annually report data
Inspections must include sensitive leak detection tests that can
identify both liquid and vapor releases.--Current leak detection
standard, allow for as much as 0.1 gph or 6,000 lbs. per year of liquid
hydrocarbons to go undetected. Currently compliant systems are able to
ignore up to 6,000 lbs. of leakage each year from each underground
storage tanks--Current standards are based on the performance of
systems that were current in the 1970s. Today, release detection
technology, from a number of providers, has the capability of
significantly more sensitivity. The Teak detection performance standard
should be lowered from the current level of 0.1 gph.
Hydrocarbon vapor monitoring methods are so unreliable and
ineffective that they should not he allowed.--The reasons that these
methods are ineffective include the inability of these methods to deal
adequately with any existing background contamination, the under-
appreciated role of microbial degradation of hydrocarbons in
controlling vapors and the tendency of soil to filter Borne
hydrocarbons out of the vapor phase and thereby preventing the required
vapor transport for these methods to be effective.
Create a central database for states to annually report data.--EPA
needs some basic information about numbers of tanks, types of systems
and status of those tanks and systems to make goad policy. Without that
information, they are guessing.
RECOMMENDATIONS
Different levels of staff expertise exist in different
States--efforts to improve overall skill base necessary
Trust fund moneys need to be made available to States for
enforcement and prevention programs
EPA fund research an ``acceptable leak rate'' (amount of
hydrocarbons the environment is capable of self-remediating) for new
leak detection standard
Fund research on ``acceptable leak rate.''--Tracer's research, as
well as other groups, suggests that there is an environmentally
``acceptable leak rate'' that would be based on the amount of
hydrocarbons the environment is capable of self-remediating. The
current leak detection standard of .1 gph is based on 1970s technology.
There are a number of leak detection technologies in the market place
currently that are capable of detecting smaller releases. Currently,
much of the market doesn't want to know about releases that are smaller
than current regulations, and thus require the more sensitive
technologies to `dumb down' their tests to meet the regulatory
standard.
TRACER TESTING BASICS.--A QUICK REVIEW
Tracer tests tanks and piping using a chemical tracer based test
method. The tracer chemicals that are used are non-toxic, biologically
inert, non-radioactive, and have no effect on product quality. They are
placed in the system in very small concentrations and are looked for
outside of the system.
[GRAPHIC] [TIFF OMITTED] T3685.004
First sampling points or probes are placed through the pavement and
into the backfill around tanks and pipes.
[GRAPHIC] [TIFF OMITTED] T3685.005
Second, a non-toxic, inert unique, easily detectable chemical
called a leak indicating tracer is added to the product in the UST
system.
[GRAPHIC] [TIFF OMITTED] T3685.006
During normal wage, the tracer is mixed with the product and
because the tracer has a tendency to become a vapor part of the tracer
evaporates and also mixes with the vapors in the tank. The tracer is
also transported through the product piping, vent piping the vapor
recovery piping. If any vapor or liquid escapes from the UST system and
enters the back fill, the tracer spreads out in to the backfill in all
directions as a vapor.
[GRAPHIC] [TIFF OMITTED] T3685.007
Finally, samples are collected from the sampling ports and the
samples are analyzed to determine whether any tracer is present.
A good indicator of whether a leak is a liquid leak or a vapor leak
is the ratio of the hydrocarbon vapors (TV-HC) to tracer vapors A vapor
leak transports more tracer in to the backfill relative to the
hydrocarbons. The bio-remedial health of a site can ale he gauged by
the rate at which hydrocarbon vapors are degraded.
TRACER TIGHT TECHNOLOGY
Sensitive as we need to be
Adjust sensitivity between vapor/liquid leaks
Pinpoint locations in systems with current leaks
Tracer has Third Party Certifications that have been reviewed and
accepted by EPA's National Work Group for tank and pipeline tightness
tests to the level of 0.005 gph.
THE FBI PROJECT
Goal: To quantify probability and environmental
significance of releases from new and upgraded UST systems
Mandated by Senate Bill 989
Report Completion by June 2002
The following portion of the testimony is data from the California
Field Based Research Project. This project was mandated by California
Senate Bill 989 that was passed and signed into law in 1999.
Sites throughout California were randomly selected and asked to
participate in the study.
PROJECT OBJECTIVES/PURPOSE
1. Comparison of three major UST system groups
2. Identify system component(s) most likely to cause a release
3. Estimate environmental significance (comparison of potential for
vapor versus liquid release)
4. Assess effectiveness of leak detection information
[GRAPHIC] [TIFF OMITTED] T3685.008
One out of seventy-three UST systems was found to have an ongoing
liquid release. The leak rate was between 0.0001 and 0.005 gph or
between 1 and 40 gallons per year. The Leak was due to an installation
defect and may have been leaking for a significant portion of the life
of the system. This leak was too small for outdated but currently used
leak detection methods to detect.
Sixty-five percent of the tanks were found to have detectable vapor
leaks. Vapor leak rates varied from a few gallons of vapor per year to
hundred of gallons of vapor peer day. In this random population of
systems, vapor leaks were found to be orders of magnitude morn
significant in terms of groundwater contamination than liquid leaks.
Tightness Frequency by Tank Type
----------------------------------------------------------------------------------------------------------------
Tank Type Tracer ND Pass Percent
----------------------------------------------------------------------------------------------------------------
Double-walled............................................... 16/48 33 percent
Single-walled............................................... 10/25 40 percent
----------------------------------------------------------------------------------------------------------------
Vapor leakage from double walled tanks was found as frequently as
form single walled tanks, The only liquid leak found was from a single,
walled pipe (that had probably been leaking since it had been
installed).
Vapor Recovery System by Type
----------------------------------------------------------------------------------------------------------------
System Type Fail/Total Fail Percent Tracer Average
----------------------------------------------------------------------------------------------------------------
Balance............................................. 30/48 62 0.8
Assist.............................................. 18/25 72 3
----------------------------------------------------------------------------------------------------------------
Assist type vapor recovery systems have a greater tendency to
pressurize the vapor space of the tank than balance type vapor recovery
systems and were found to correlate with greater amounts of vapor
leakage.
CASE STUDY NO. 1
Large vapor release suspected based on TPH and tracer
concentrations
TPH: 164 mg/L
Tracer: 30 ug/L
Tank essentially venting to backfill
Release point: Faulty drain valve into fill riser spill
bucket, via separated joint in spill bucket into a containment sump,
out top of containment sump and underneath manhole cover into the
backfill.
This system was found to be leaking in excess of 400 gallons of
gasoline vapors per day. This would account for about 2 to 3 lbs. of
gasoline per day or about a thousand pounds per year. Tanks should be
made to be vapor tight and should be tested to determine whether they
are vapor tight.
About 30 percent of the spill buckets at the systems tested failed
to hold water. The most likely cause of the watch leakage was dirt,
leaves and trash in the drain valve. Unfortunately, leaking drain
valves that are attached to UST systems that have a tendency to be
pressurized become tanks vents that are located directly below manhole
covers.
The hydrocarbon distribution at this site was high concentration
and widespread. The lower explosive limit (LEL) for hydrocarbons is 20-
40 percent. The hydrocarbon concentrations in the back fill at this
site were 4-8 times higher than the LEL.
CASE STUDY NO. 2
Vapor release at each gasoline tank ATG cap, no release
from diesel tank
Gasoline tanks missing o-ring for cable penetration and
under pressure from pressure release vent cap
Diesel tank, o-ring present and tank not under pressure
Sixty-five percent of the tanks in the study had vapor leaks that
were detectable and ranged from very small to very large. The sources
of these vapor leaks were many and varied and upon identification and
location, most could be repaired.
what's been learned in california in the field based research project
AND FROM ENHANCED LEAK DETECTION
Gas Station systems (primary containment) work well
Liquid releases from the systems are rare
System liquid releases found were far below the threshold
of detection equipment
Some sites with completely tight systems still had
significant amounts of liquid product on the groundwater at the site
(non-system release events)
MTBE problems exist at some completely tight facilities
California has the most policed systems in the United
States but still have significant vapor releases
Tanks, etc. at gas stations are not designed/installed to
be vapor tight
Continual release of vapors to the backfill can be a
safety as well as an environmental hazard
The California Field Based Research Project is the first
comprehensive evaluation of existing UST systems ever done. The
findings offer unique scientific insights to help create effective UST
system policies.
One hundred eighty-two systems have now been evaluated. The updated
report from the continued evaluation will be available June 1, 2002.
Tracer would he happy to provide the updated report when it is
available.
__________
Statement of the Petroleum Marketers Association of America (PMAA)
The Petroleum Marketers Association of America (PMAA) submits the
written testimony below for the Senate Hearing Record for the May 8th
hearing on S. 1850. PMAA generally supports S. 1850, but recommends
some changes to the bill as it is currently written.
PMAA welcomes this hearing, as PMAA has long sought legislation to
alleviate the financial burden placed on States with regard to
requirements of the Resource Conservation and Recovery Act (RCRA) and
the leaking underground storage tank program. PMAA views this
legislation to be of critical importance to petroleum marketers from
your respective States and across the country. PMAA has been working
with congressional staff for many years now to secure States their fair
share of Federal funding under the Federal Leaking Underground Storage
Tank (L.U.S.T.) program and is pleased to see that Senate members are
interested in moving forward on this legislation.
PMAA is a federation of 42 State and regional trade groups
representing some 8,000 small, independent petroleum marketers.
Collectively these 8,000 marketers sell half the gasoline, three
quarters of the diesel fuel and 60 percent of the home heating oil
consumed in the U.S. annually.
PMAA is aware that some will try to say that the polluter isn't
paying for clean-ups. PMAA responds by saying that marketers,
themselves, have paid into this fund for approximately 15 years for the
explicit purpose of cleaning up leaking underground storage tanks. It
should be made very clear that this fund is not general taxpayer
money--it was funded by the industry for an explicit purpose--not to be
used as political fodder for special interests. As the subcommittee
members may be aware, various legislators have twice tried to raid the
fund--once to pay for enforcement of the Endangered Species Act and a
second time to pay for the Superfund program, which would have depleted
the L.U.S.T. fund in a matter of 2 years.
PMAA and its marketer members have worked to secure passage of S.
1850, as an essential step in helping ensure that States continue to
receive the lion's share of Federal L.U.S.T. funds. As you know, S.
1850, if passed, would achieve several important objectives. First, the
legislation would ensure that States--by statute--receive at least 80
percent of money appropriated by Congress yearly for the L.U.S.T.
program. PMAA strongly believes that this provision is critical to
States to ensure that they are given the resources necessary to carry
out their obligations under the Federal L.U.S.T. program mandates. It
would be an injustice if States were to lose additional funding for
their .responsibilities, because they are the very entities to whom
Congress made mostly responsible for carrying out the requirements
under RCRA.
If States do not continue to receive the bulk of the money
appropriated, the requirements for leaking underground storage tanks
would quickly become an unfunded Federal mandate. Passage of S. 1850,
would--at the very least--assure States of their share of Federal
funding, especially as budgetary constraints grow tighter.
Second, the bill would give States and tank owners and operators a
greater voice in the allocation process. The bill provides that--should
E.P.A. want to change the current allocation formula, it must consult
with the State administrators and representatives of tank owners and
operators. The bill also uses E.P.A.'s current allocation formula and
adds additional criteria that E.P.A. should take into consideration.
Under S. 1850, E.P.A. would be required to also take into account the
amount of revenue received into the Federal L.U.S.T. fund from a given
State.
The bill requires that these criteria be considered ``at a
minimum'', but does not prevent E.P.A. from adding additional criteria
after consultation with the regulated community. PMAA feels that this
is an important provision because States are ensured that there will be
a variety of criteria considered, including the amount of money their
marketers have paid into the fund.
Third, the bill would allow States greater flexibility regarding
their use of the funds. PMAA believes that this is essential because,
as States face greater demand for the clean-up funds and additional
administrative and enforcement costs, Congress should provide the
greatest flexibility possible.
Every State faces a different situation with regard to their
respective program. The bill would allow States to use money for
administration; enforcement and to aid--at a minimum--tank owners or
operators who face financial hardship.
PMAA feels that this provision should be included for a variety of
reasons. Primarily, PMAA urges Congress to aid in the clean-up of
leaking underground storage tanks because that was the purpose intended
when the fund was created. Unfortunately, only approximately 1 percent
of the money has been used for actual clean-up--and that has been for
the clean-up of orphan tanks where the owner or operator could not be
identified and or Native American owned tanks. Clearly, there is a
community need for the money to be used for actual clean-ups.
PMAA is strongly supportive of the language included in the bill,
which would allow States to use Federal L.U.S.T funds for the clean-up
of MTBE, which has been a growing problem for many States. PMAA would
like to see the eventual phase-out of the use of the product, but
believes the provisions in S. 1850 will give States an added resource
to deal with the groundwater contamination that is occurring
nationwide.
Using E.P.A.'s figures, approximately 99 percent of the money
appropriated each year goes for administration and enforcement of the
L.U.S.T. program and approximately 1 percent is spent on the clean-up
of orphan tanks. For example, that means that, out of the approximately
$70 million appropriated for the program in fiscal year 2002, only
about $700,000 went to clean-up sites (orphan only). The rest of the
money appropriated in fiscal year 2002--$69,300,000--went for the
administration and oversight of the program (for both Federal and State
E.P.A. enforcement).
Responsible parties will continue to clean-up sites, but PMAA feels
strongly that States should be allowed the flexibility to make a
decision, in certain cases, to use Federal funds for actual cleanups.
PMAA's position has been and remains that the bulk of clean-ups need to
be done in situations where the owner or operator can be identified but
may need financial assistance.
To add background to our earlier point, PMAA and other petroleum
groups actually supported the reinstituted L.U.S.T. tax of \1/10\ of a
cent per gallon when it was enacted. As a matter of fact, industry
actually wanted a higher tax because industry believed that the fund
would be used for its intended purpose--to clean-up leaking underground
storage tanks and that it would be spent and used productively.
Industry wanted a higher rate for two reasons, (1) to actually help
later when clean-ups would become more actively pursued and (2) because
there is no way to reflect such a nominal increase in the posted
gasoline price. So, many marketers accepted the \1/10\ of a cent per
gallon tax and ate the cost because it could not be passed along to the
consumer.
Now, we have a Federal fund with over $2 billion sitting idly,
while States and marketers have no funds to clean-up sites. And, the
yearly appropriation level has not risen in several years.
Under the Chafee bill, States would be able to spend the money for
tank clean-up, administration and enforcement--wherever they believe
their States could most effectively use the money. PMAA believes that
States are closer to the problem and can make a more competent decision
with regard to the L.U.S.T. program and spending the money wisely.
PMAA strongly recommends that the language in the bill requiring a
State to conduct an inspection at least every 2 years be further
clarified so States do not misinterpret that bill's intent. Currently,
many States (29 at this time) have E.P.A. approved programs that they
do not want undermined with this bill. In other words, marketers and
State associations have spent years working with their State
environmental authorities to ensure a strong tank program. In many
States, electronic monitoring is already required. What would the
required inspection entail under S. 1850--a review of the records, an
actual thorough tank inspection, or something else? PMAA would like to
see this language clarified to give the States the most flexibility
possible to allow them to operate under programs they may already have
in place. PMAA recommends that the subcommittee amend the bill to say
``. . . if a State has an E.P.A. approved program in place, the 2 year
inspection requirement does not apply''. PMAA also believes that, once
a marketer, gets a ``clean bill of health'' after an inspection, he or
she should not be targeted every 2 years with more inspections. Rather,
PMAA feels the States should target their resources toward the ``bad
actors'' rather than the entire tank community.
PMAA would also like to see language in the bill that clarifies
when an inspector could shut down a tank operation to exclude paperwork
violations from being sufficient grounds to stop the operation of a
tank. Often, paperwork violations are the cause for a citation and
should not warrant such an extreme response.
PMAA recommends that the language in the bill relating to publicly
owned tanks be strengthened to include an actual enforcement mechanism,
rather than simply requiring States to come up with a ``compliance
strategy''. Industry has long known that a large number of tank leaks
come from publicly owned tanks, and government and other publicly owned
tanks should not be exempt from having to comply with Federal law. The
bill lacks a sufficient remedy to compel Federal, State, and other
public authorities to come into compliance and remedy those tanks that
are leaking or otherwise not in compliance.
PMAA urges the subcommittee to approve this important legislation
with the recommended changes outlined above and expedite its
consideration by the full committee and Congress. The 1998 E.P.A.
deadlines have long passed, but there is still a great need to get this
important funding to the States and to offer them increased
flexibility. On behalf of our over 8,000 marketer members, PMAA urges
your support for S. 1850, with amendments.