[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 THE EFFECTIVENESS OF LEAKING UNDERGROUND STORAGE TANK CLEANUP PROGRAMS

=======================================================================

                                HEARING

                               before the

          SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 5, 2003

                               __________

                           Serial No. 108-16

                               __________

      Printed for the use of the Committee on Energy and Commerce


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house


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                    COMMITTEE ON ENERGY AND COMMERCE

               W.J. ``BILLY'' TAUZIN, Louisiana, Chairman

MICHAEL BILIRAKIS, Florida           JOHN D. DINGELL, Michigan
JOE BARTON, Texas                      Ranking Member
FRED UPTON, Michigan                 HENRY A. WAXMAN, California
CLIFF STEARNS, Florida               EDWARD J. MARKEY, Massachusetts
PAUL E. GILLMOR, Ohio                RALPH M. HALL, Texas
JAMES C. GREENWOOD, Pennsylvania     RICK BOUCHER, Virginia
CHRISTOPHER COX, California          EDOLPHUS TOWNS, New York
NATHAN DEAL, Georgia                 FRANK PALLONE, Jr., New Jersey
RICHARD BURR, North Carolina         SHERROD BROWN, Ohio
  Vice Chairman                      BART GORDON, Tennessee
ED WHITFIELD, Kentucky               PETER DEUTSCH, Florida
CHARLIE NORWOOD, Georgia             BOBBY L. RUSH, Illinois
BARBARA CUBIN, Wyoming               ANNA G. ESHOO, California
JOHN SHIMKUS, Illinois               BART STUPAK, Michigan
HEATHER WILSON, New Mexico           ELIOT L. ENGEL, New York
JOHN B. SHADEGG, Arizona             ALBERT R. WYNN, Maryland
CHARLES W. ``CHIP'' PICKERING,       GENE GREEN, Texas
Mississippi                          KAREN McCARTHY, Missouri
VITO FOSSELLA, New York              TED STRICKLAND, Ohio
ROY BLUNT, Missouri                  DIANA DeGETTE, Colorado
STEVE BUYER, Indiana                 LOIS CAPPS, California
GEORGE RADANOVICH, California        MICHAEL F. DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire       CHRISTOPHER JOHN, Louisiana
JOSEPH R. PITTS, Pennsylvania        TOM ALLEN, Maine
MARY BONO, California                JIM DAVIS, Florida
GREG WALDEN, Oregon                  JAN SCHAKOWSKY, Illinois
LEE TERRY, Nebraska                  HILDA L. SOLIS, California
ERNIE FLETCHER, Kentucky
MIKE FERGUSON, New Jersey
MIKE ROGERS, Michigan
DARRELL E. ISSA, California
C.L. ``BUTCH'' OTTER, Idaho

                  David V. Marventano, Staff Director

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

          Subcommittee on Environment and Hazardous Materials

                    PAUL E. GILLMOR, Ohio, Chairman

JAMES C. GREENWOOD, Pennsylvania     HILDA L. SOLIS, California
JOHN SHIMKUS, Illinois                 Ranking Member
HEATHER WILSON, New Mexico           TOM ALLEN, Maine
VITO FOSSELLA, New York              FRANK PALLONE, Jr., New Jersey
  (Vice Chairman)                    MICHAEL F. DOYLE, Pennsylvania
STEVE BUYER, Indiana                 JIM DAVIS, Florida
GEORGE RADANOVICH, California        JAN SCHAKOWSKY, Illinois
CHARLES F. BASS, New Hampshire       PETER DEUTSCH, Florida
JOSEPH R. PITTS, Pennsylvania        BOBBY L. RUSH, Illinois
MARY BONO, California                BART STUPAK, Michigan
LEE TERRY, Nebraska                  ALBERT R. WYNN, Maryland
ERNIE FLETCHER, Kentucky             GENE GREEN, Texas
DARRELL E. ISSA, California          DIANA DeGETTE, Colorado
MIKE ROGERS, Michigan                JOHN D. DINGELL, Michigan,
C.L. ``BUTCH'' OTTER, Idaho            (Ex Officio)
W.J. ``BILLY'' TAUZIN, Louisiana
  (Ex Officio)

                                  (ii)


                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Galbraith, Edward, Tanks Section Chief, Missouri Department 
      of Natural Resources, Land and Air Division................    20
    Rothenstein, Clifford, Director, Office of Underground 
      Storage Tanks, U.S. Environmental Protection Agency........     7
    Stephenson, John B., Director, Natural Resources and 
      Environment, U.S. General Accounting Office................    12

                                 (iii)

  

 
 THE EFFECTIVENESS OF LEAKING UNDERGROUND STORAGE TANK CLEANUP PROGRAMS

                              ----------                              


                        WEDNESDAY, MARCH 5, 2003

              House of Representatives,    
              Committee on Energy and Commerce,    
                        Subcommittee on Environment and    
                                       Hazardous Materials,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 3 p.m., in 
room 2322, Rayburn House Office Building, Hon. Paul E. Gillmor 
(chairman) presiding.
    Members present: Representatives Gillmor, Shimkus, Buyer, 
Bass, Issa, Otter, Solis, Schakowsky, Wynn, and Dingell (ex 
officio).
    Staff present: Jerry Couri, policy coordinator; Jim 
Barnett, general counsel; Hollyn Kidd, legislative clerk; and 
Dick Frandsen, minority counsel.
    Mr. Gillmor. The committee will come to order and I'd like 
to welcome everyone to our subcommittee's first hearing of the 
108th Congress, as well as thank members who are here for their 
attendance. I want to express my appreciation to the witnesses 
on our Panel today. I know they've made sacrifices to be here 
and participate and I want to acknowledge those efforts.
    Today's oversight hearing provides a look into the issue of 
leaking underground storage tanks. While the program's acronym, 
LUST, is bound to get a few snickers, the problem of 
groundwater contamination from leaking tanks is a deadly, 
serious matter. Probably half of the U.S. population draws its 
drinking water from groundwater and chemicals now leaching out 
of tanks or their underground distribution systems pose a 
direct threat to drinking water source integrity, related soil 
contamination and public health.
    A push to make any changes to LUST should equally be about 
protection as well as about cleanup.
    Now as part of our oversight efforts, our committee must 
carefully review Federal and State tank programs to ensure that 
the status quo is not just acceptable, but that it leads to 
something beneficial. While 1.5 million out of 2.2 million 
regulated tanks have been cleaned up under the Federal and 
State LUST programs, new leaks at upgraded tank sites and the 
remaining universe of 700,000 operational tanks demand greater 
attention. Fortunately, the trust fund Congress established in 
1986, with the blessing of tank owners and operators, is flush 
with cash, one of the few areas in the Federal Government, 
supporting a balance of $1.88 billion and it could be tapped to 
handle many of UST's concerns.
    But a major hurdle now exists since Congress has 
consistently appropriated a minuscule sum compared to the trust 
fund's annual receipts, making it inadequate to help fund the 
tasks it must accomplish and we must change that situation.
    It's important that we move expeditiously on this issue and 
while my preference might be to proceed under regular order, 
what our subcommittee does may be combined as part of the 
Energy Bill and all indicates that the Energy Bill may be 
moving in the near future.
    I have been working on a discussion draft. There's nothing 
in that draft that is set in concrete. It's just intended to be 
tangible proof that we want to get the process moving and both 
the majority and minority staff are now working together on 
that draft and hopefully we'll be able to have an agreement on 
a draft that we can both support in the near future.
    There are two things in particular that I should point out 
about the draft that I've been working on. First, it 
incorporates most of the recommendations of the May 2001 GAO 
Report on leaking underground tanks; and second, it provides a 
very major increase in authorized spending to clean up leaking 
tanks. So to be clear, our committee must get to work on a 
legislative process. We have to make the necessary changes to 
the Federal LUST program to increase funding to States, drive 
more cleanups, strengthen tank inspection requirements, provide 
better enforcement tools to regulators and educate and train 
tank owners and operators in a way to prevent future leaks.
    Whether you are worrying about ground water contamination 
from gasoline additives like MTBE, want to eliminate unfunded 
mandates, seek stronger enforcement and compliance for 
underground tanks, whether you want to see the States have 
greater flexibility with their programs, or like myself, feel 
strongly that dedicated Trust Funds need to be used for their 
stated purpose, I believe that all of us have a reason to care 
about this issue and to work to see that a good product moves 
forward.
    I want to commend my ranking member, Congresswoman Solis 
and our committee's ranking member, Mr. Dingell, for the help 
that they and their staffs have provided so far and I look 
forward to them working together.
    And with that, I yield the 31 seconds I have remaining and 
I yield to the gentlewoman from California, Congresswoman Solis 
for the purpose of delivering an opening statement.
    Ms. Solis. Thank you, Mr. Chairman. I'm delighted to be 
here at my first meeting as ranking member. It's a very 
important subcommittee and I do look forward to working with 
you on these issues that affect this subcommittee's 
jurisdiction, but more importantly, to help provide assurances 
to the American public that we are doing their job and that is 
protecting the safety of their drinking water.
    I also want to commend your staff and our staff for working 
together. I know we have still a ways to go. We are still going 
to continue our discussions and hopefully we'll be able to come 
to some agreements there.
    This particular issue regarding the LUST program and I also 
have a problem with that acronym. I understand it very well 
because I think most of the Districts throughout the country 
are affected by this particular issue. And it is a shame that 
we're not able to utilize the Trust Fund money appropriately to 
help mitigate these problems that do exist. I'm glad to see 
that our witnesses are here. I was very intrigued by the GAO 
report that was issued and I have had a chance to review that, 
so I do have questions for you. And I want to conclude with 
that at this time and look forward to asking my questions of 
the witnesses here.
    I yield back the balance of my time, Mr. Chairman.
    [The prepared statement of Hon. Hilda L. Solis follows:]

Prepared Statement of Hon. Hilda L. Solis, a Representative in Congress 
                      from the State of California

    Thank you, Chairman Gillmor. Before I start my opening statement, 
let me say that I look forward to working with you this Congress and I 
am hopeful that we can work cooperatively on issues the American public 
cares about. There are many communities throughout the nation who are 
depending on this subcommittee to protect them against hazardous and 
toxic contamination.
    This is especially true when it comes to leaking underground 
storage tanks (LUST). There are underground storage tanks in every 
Congressional District in the country. Many of these tanks are slowly 
leaking into our groundwater table and impacting the health and 
physical well-being of many families.
    In May 2001, the General Accounting Office (GAO) released a report 
on the LUST program and clearly stated that the program is in need of 
improvements, like more training, better enforcement and regular 
inspections.
    In the GAO report released in 2001 more than 200,000 regulated 
tanks were not being operated or maintained properly. This is a 
frightening statistic, but perhaps it shouldn't be a surprise since 
most states don't require operator training. 47 States out of 50 report 
that they don't even have proper training for their inspectors. This is 
alarming and is putting the health of our constituents in danger.
    Only about \1/4\th of states are starting to recognize this as a 
problem. My home state of California now requires training courses for 
all tank owners, operators, installers, and inspectors. I am hopeful 
that others will soon follow suit.
    I am also concerned that most states do not have regular 
inspections of tanks. The GAO report revealed that not only are we not 
training people appropriately, 63% of states do not inspect tanks at 
least once every three years. Only 12% of States inspect tanks 
annually, as recommended by GAO. As a result, tanks are falling out of 
compliance and leaks are being missed. We need to make sure that 
regular inspections are taking place so that the government can enforce 
laws and protect our drinking water.
    As we consider this program, we also need to have a serious 
discussion about funding. The LUST trust fund will be over $2 billion 
this year. And yet, the President is only asking for $72 million of 
that fund to be spent.
    Mr. Chairman, I think that it is necessary to fund serious cleanup. 
Nationwide there are an estimated 143,000 leaks with more confirmed 
each year. In FY 2001, the EPA failed to meet its goal of 21,000 LUST 
cleanups nationwide, falling short by 1,924 cleanups. In FY 2002, the 
goal was 21,500 cleanups but only 15,728 were completed. We are 
throwing the equivalent of small change at a huge, expensive problem. 
It is time that we use the money that we already have to make 
communities safer.
    I look forward to hearing from our witnesses today. I am especially 
interested in hearing about some of the programs that EPA has 
instituted since the GAO report was published and hope our witnesses 
will address this some.
    There are many steps that need to be taken to protect families and 
communities from leaking underground storage tanks and I am hopeful 
that today's testimony will help point this subcommittee in the right 
direction so that we can take those steps.

    Mr. Gillmor. Thank you. The gentleman from California.
    Mr. Issa. Well,thank you, Mr. Chairman, and I probably have 
less problem with LUST. It seems to have a name that's 
memorable and thus will benefit us all, but I'll waive my time 
pursuant to the committee rules.
    Mr. Gillmor. Very good, and the member will have additional 
time in his questions.
    The gentlelady from Illinois?
    Ms. Schakowsky. Thank you, Mr. Chairman, and I congratulate 
you and our new subcommittee chair, Congresswoman Solis for 
convening this hearing.
    I'd like to thank our witnesses for coming forward today to 
testify before us regarding this important issue. I look 
forward to working with all of you on this subcommittee.
    Ground water is a fundamental resource for human life and 
economic vitality in our Nation. Leaking underground storage 
tanks present significant risk to ground water quality and 
therefore to human health, environmental quality and economic 
growth. The main contaminant from leaking tanks is gasoline 
which contains many carcinogens and developmental toxicants. To 
address the risks posed by leaking underground storage tanks, 
Congress amended the Resources Conservation and Recovery Act in 
1984, RCRA, to create a program that would clean up 
contamination related to leaking underground storage tanks and 
prevent future contamination.
    Despite Congress' creation of the LUST program, these 
storage tanks continue to present serious threats to public 
health and the environment.
    I dealt with this issue when I was in the State legislature 
for 8 years in Springfield, and I know that in the city of 
Chicago there are thousands of underground storage tanks. Many 
of these tanks are operational, but hundreds are no longer in 
use and have been abandoned by their owners. While the city 
receives funding from the State of Illinois to administer its 
program, State funding levels have remained constant for many 
years, despite increases in the number of underground storage 
tanks and a corresponding need to devote more city staff and 
resources to tank inspections and enforcement.
    Due to many States' experiencing budget shortfalls, LUST 
funds have been tapped for uses other than LUST-related 
projects. The State of Illinois and the city of Chicago are 
experiencing the same fate as many other States and cities 
across the Nation. The bottom line is that there's not enough 
Federal dollars being channeled into States to allow them to 
properly maintain and enforce the LUST cleanup programs.
    At the end of fiscal year 2003, there will be a total of 
$1.9 billion in the LUST Trust Fund which is expected to reach 
$2.16 billion by the end of 2004. Despite this vast amount of 
available funding, the President has only requested roughly $72 
million from the LUST Trust Fund for LUST cleanup programs for 
fiscal year 2004 and only a little over 80 percent of that 
money is allocated to the States. With an estimated 143,000 
unaddressed releases reported across the Nation and the States 
desperate for more funding, the Administration is falling way 
short on improving the LUST cleanup programs across the Nation.
    Leaking underground storage tanks are a serious threat to 
public health and environmental quality and we need to provide 
the funding that will allow the EPA and the States to increase 
and not weaken protections. However, we also need to demand 
strong leadership from the EPA when it comes to enforcing the 
standards that were created to protect public health and the 
environment. We expect to take up LUST reauthorization in this 
Congress and in doing so we have an opportunity to clean up the 
mess created by these tanks by enhancing preventative measures 
and enforcement tools so that the leaks don't occur in the 
future.
    We owe it not only to our environment, but also to future 
generations to finish what we set out to do so many years ago 
and clean up the hazardous waste created by these tanks so that 
they don't continue to contaminate our drinking water.
    I look forward to hearing from the witnesses and I look 
forward to working toward a solution that will protect public 
health and the environment.
    Thank you, Mr. Chairman.
    Mr. Gillmor. Thank you. Is the ranking member here? Okay. 
We'll have an opening statement from Mr. Dingell, ranking 
member of the full committee.
    The Chair is pleased to recognize the ranking member of the 
full committee, Mr. Dingell, for an opening statement.
    Mr. Dingell. Mr. Chairman, I thank you for your courtesy 
and I commend you for holding this hearing on the leaking 
underground storage tank program.
    Mr. Chairman, this subcommittee held a hearing last May to 
examine the scope and the effect MTBE has had on ground water 
throughout this country. During the past 10 years, MTBE, along 
with other additives such as ethanol, has successfully helped 
combat air pollution in many areas of the country. One 
unintended consequence of the use of MTBE as a fuel additive, 
however, has been ground water contamination from leaking 
underground storage tanks and other sources.
    I look forward today to hearing from our witnesses on how 
we can strengthen the enforcement of existing tank regulations, 
as well as finding ways to prevent future leaks from 
underground storage tanks.
    Prevention in the first instance, rather than the costly 
remediation after a release should be our goal. Unfortunately, 
releases from underground petroleum storage tanks have already 
resulted in serious contamination and costly cleanup. In 
Michigan, the Department of Environmental Quality estimates 
there are approximately 4200 underground storage tank sites 
that will require public funding for cleanup with costs ranging 
as high as $1.7 billion.
    EPA has informed us that one of the biggest challenges we 
face nationally is the number of cleanups dropped 28 percent in 
fiscal year 2002. This leaves us with a national backup of 
143,000 releases waiting to be cleaned up. Not surprisingly, 
the budget this year falls short in addressing this issue. The 
leaking underground storage tank or LUST Trust Fund was created 
by Congress in 1986. It is financed by a tenth of a cent gallon 
tax on motor fuels. The LUST Trust Fund was specifically 
created to address contamination from leaking underground 
storage tanks at gas stations and other facilities which are 
also often the source of the MTBE and other petroleum 
contamination in ground water.
    There is currently a surplus of $1.9 billion in the Trust 
Fund. It is estimated to grow under the President's budget to 
$2.1 billion by the end of fiscal year 2004. However, the 
President's budget request is only for $72 million. This 
request is only 40 percent of the $180 million collected 
annually from the gasoline tax. Without using the money 
available in the Trust Fund, and the annual tax receipts, many 
abandoned gas stations contaminated with petroleum and MTBE 
releases across the country will not be cleaned up.
    Mr. Chairman, I am pleased that our staffs have been 
working together in a bipartisan manner to address the funding, 
enforcement and prevention issues. I note that the Senate 
Environment and Public Works Committee has already ordered 
similar legislation reported. That's S. 195. In order to move 
this legislation expeditiously, we should complete our 
negotiations, follow regular order and conference a bill with 
the Senate version.
    Again, Mr. Chairman, I commend you and I thank you for your 
recognition.
    Mr. Gillmor. Thank you, Mr. Dingell, and we'll recognize 
the gentleman from Indiana for an opening statement, but before 
that, I'll ask unanimous consent that all members may be 
permitted to enter opening statements. Is there an objection? 
Chair hearing none, so ordered.
    The gentleman from Indiana.
    Mr. Buyer. I waive and reserve.
    [Additional statemments submitted for the record follow:]

 Prepared Statement of Hon. W.J. ``Billy'' Tauzin, Chairman, Committee 
                         on Energy and Commerce

    Thank you, Chairman Gillmor.
    For quite a few Congresses now this Committee has been attempting 
to make improvements in the Federal leaking underground storage tank 
program, and this hearing will begin this process once again. Our 
counterpart Senate committee acted on a bill just last week, so I hope 
that this is the year when we can finally get something done.
    There are two critical goals I have for improving the LUST program. 
First, we need to ensure that Federal appropriations for the program 
continue to go where those dollars can do the most good: that's to the 
States. The large majority of States have EPA-approved LUST programs 
and virtually all States have sophisticated laws, rules, and 
regulations governing storage tank maintenance and remediation. 
Literally tens of thousands of tanks are still awaiting cleanup, and 
getting money to the States is the best way to address them.
    Once we get money to the States, we need to be sure that they can 
use that funding in ways that they think will best prevent and, if 
necessary, remediate leaking tanks. Unfortunately, current law is 
ambiguous on this point, and I will be curious to learn from the 
witnesses what kinds of flexibility Congress should afford to the 
States in allocating their money.
    The second thing I'll be looking for in legislation is what, if 
any, increased regulation of tanks and tank operators is necessary. 
It's been nearly twenty years since Congress enacted the storage tank 
program. We need to take a look at whether there are any sensible new 
requirements that we should be imposing on the regulated community.
                                 ______
                                 
  Prepared Statement of Hon. Frank Pallone, Jr., a Representative in 
                 Congress from the State of New Jersey

    Thank you Mr. Chairman for holding this hearing today. This 
Subcommittee has had hearings on Leaking Underground Storage tanks in 
the past but today I'm interested in hearing from our witnesses to 
learn what has changed since the last time we visited this issue.
    But, I'm concerned that we'll hear that this program continues to 
be riddled with problems. From testimony submitted to the Subcommittee, 
I understand that there continues to be a need for additional resources 
for states to carry out a thorough and effective LUST program. Both the 
GAO testimony and Mr. Galbraith's testimony identify numerous areas 
where the needs in this program far outweigh the funding resources that 
have been made available to the states. I am very concerned about 
references in the testimony to poorly trained staff, lack of clean up 
money and shortages in enforcement capabilities--all which has lead to 
poor maintenance track records and potential drinking water 
contamination--which continues to be a problem in my state of New 
Jersey.
    I also am concerned that some of these LUST program problems arise 
from the lack of stringent requirements--including operator training, 
timely inspections and secondary containment requirements for all 
current and new underground storage tanks. We need to create 
requirements that address these shortcomings but at the same time we 
need to be sure to provide the necessary resources for states to meet 
these requirements. Anything less allows for a continuation of the 
current problems--leaking tanks and failures in compliance.
    Today, I am also interested in hearing from EPA on how they plan to 
address the more than 200,000 tanks that are not being operated and 
maintained properly today. Additionally, I would also like to learn how 
EPA plans to address the more than 140,000 reported releases that have 
not had cleanup completed and the hundreds of thousands of unused 
underground storage tanks that either leak or pose a threat to leaks 
because they are not being inspected.
    Finally, I would like to note that I am at a loss to understand why 
the Administration has continued to under fund this program. With 
nearly $2 billion in the trust fund to clean up LUST sites across the 
country and hundreds of thousands of sources of contamination 
identified, the President's budget request for FY 2004 has dedicated 
only $72 million to LUST. I am interested in hearing from Mr. 
Galbraith, if he believes his state can operate a thorough LUST program 
with funding maintained at the same level as last year. We need to 
address this issue in order to ensure that clean up throughout the 
county happens now. The resources are available.
    Mr. Chairman, this subcommittee needs to work together to address 
the LUST program. I am discouraged to learn that this Subcommittee may 
relinquish its control of this program by allowing LUST to be included 
in the fuels provision of the energy bill. This Subcommittee should 
continue to work on resolving many of the issues I've raised in order 
to improve and enhance this important program. Thank you and I hope we 
can accomplish that goal.

    Mr. Gillmor. The gentleman waives and reserves. Our first 
witness is Mr. Clifford Rothenstein, the Director of the Office 
of Underground Storage Tanks for U.S. EPA.

     STATEMENTS OF CLIFF ROTHENSTEIN, DIRECTOR, OFFICE OF 
   UNDERGROUND STORAGE TANKS, U.S. ENVIRONMENTAL PROTECTION 
  AGENCY; JOHN B. STEPHENSON, DIRECTOR, NATURAL RESOURCES AND 
    ENVIRONMENT, U.S. GENERAL ACCOUNTING OFFICE; AND EDWARD 
GALBRAITH, TANKS SECTION CHIEF, MISSOURI DEPARTMENT OF NATURAL 
                RESOURCES, LAND AND AIR DIVISION

    Mr. Rothenstein. Thank you. Good afternoon, Mr. Chairman, 
members of the subcommittee. I am Cliff Rothenstein, the 
Director of EPA's Office of Underground Storage Tanks. I'm 
pleased to be here today. We've made a lot of progress in our 
program and I'd like to highlight some of our accomplishments, 
identify some of our newest challenges, and briefly describe 
what we're doing to address some of these challenges.
    Nineteen years ago, Congress responded to the growing 
problem of leaking underground petroleum tanks by enacted 
Subtitle I of the Resource Conservation and Recovery Act. 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'd like to highlight some of our most noteworthy 
accomplishments. 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 closed 1.5 million 
of these substandard tanks. By doing so, these tanks can no 
longer contaminate our drinking water, ground water or soil. 
Together, we've cleaned up almost 285,000 leaking tanks or 
about two thirds of all leaks. Together, we've gotten most tank 
owners to upgrade their tanks and install leak detection 
equipment and because of this effort, the number of new leaks 
has sharply declined from about 30,000 in 1998 to about 8500 
last year, a 70 percent drop.
    Through these statistics, it's easy to see just how much 
progress we have made, but our work is not finished. One of the 
toughest challenges and many of you have raised this, is MTBE, 
both preventing new releases and cleaning up existing MTBE 
contamination. This is a significant undertaking in many, many 
communities, especially communities who have lost some or all 
of their drinking water due to MTBE. We're working very closely 
with many communities to answer their technical questions about 
MTBE and in some cases provide financial support.
    MTBE though isn't our only challenge. Although we've made 
great strides cleaning up leaking underground tanks, we still 
have almost 143,000 releases that still need to be cleaned up. 
We and the States are committed to clean up these releases more 
quickly. Together, we're working on an initiative to accelerate 
the pace of clean ups by promoting performance-based clean up 
contracting which can save both time and money. Risk-based 
corrective action, which is setting clean up levels appropriate 
for the type of land use and multi-site clean up agreements, so 
we can bundle several sites together into one package so we can 
use our resources more efficiently.
    We're also looking at our clean up challenge with an eye 
toward making contaminated land available for reuse. One of our 
greatest opportunities for reuse are old, abandoned gas 
stations. That is why we created UST fields, another great 
acronym, sorry, with 50 pilots underway in 30 States and 3 
tribes. 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. By providing some seed money to States, 
cities, tribes, we're helping them assess, clean up and reuse 
abandoned properties.
    In addition to these efforts, we must also prevent future 
leaks through greater compliance. Although we've made 
considerable progress by getting most tank owners to install 
better equipment, we must now make sure that the equipment is 
being operated properly. We're working closely with States on 
several creative ways to improve compliance through the use of 
third party inspectors, multi-site compliance agreements, more 
intensive training for State and EPA inspectors and better 
guidance to gas station owners and operators so they know how 
to maintain their equipment and what to do when a problem 
occurs.
    Finally, over the past couple of years, we've learned that 
despite our best efforts, some leaks are coming from new and 
upgraded tanks. To get a better handle on the source and causes 
of these leaks, we've been working closely with States, 
universities and industry and some trends are emerging.
    On the positive side, today's underground tanks are much 
better than the older tanks. Unfortunately, a number of 
problems remain. Many are caused by human error, such as owners 
or operators failing to operate their leak detection equipment 
correctly or failing to prevent spills and overfills during 
deliveries. But leaks from pipes, dispensers and some tanks 
themselves are also a problem. We're currently summarizing what 
we know and look forward to working with States, industries and 
others to identify appropriate remedies.
    In summary, Mr. Chairman, and members of the subcommittee, 
we're very pleased with the significant progress we've made in 
closing substandard tanks, improving compliance and cleaning up 
releases. Nevertheless, we still have a lot of work ahead. I 
commend the subcommittee for focusing on the challenges that we 
are facing and I look forward to working with you and other 
members to address the work before us.
    This concludes my testimony. I ask that my full statement 
be included in the record and would be happy to answer any 
questions.
    [The prepared statement of Cliff Rothenstein follows:]

     Prepared Statement of Cliff Rothenstein, Director, Office of 
    Underground Storage Tanks, U.S. Environmental Protection Agency

    Good afternoon Mr. Chairman and Members of the Subcommittee. I am 
Cliff Rothenstein, EPA's Director of the Office of Underground Storage 
Tanks. I am pleased to appear today to discuss some of the challenges 
facing the Underground Storage Tank program and describe the work EPA 
has undertaken to address those challenges.

                               BACKGROUND

    In 1984, Congress responded to the increasing threat to groundwater 
posed by leaking underground storage tanks (USTs) by adding a new 
subtitle to the Resource Conservation and Recovery Act (RCRA). Subtitle 
I 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 either upgrade or close them. The regulations addressed a 
variety of other requirements including those related to leak detection 
and the cleanup of tank releases.
    In 1986, Congress created the Leaking Underground Storage Tank 
(LUST) Trust Fund to provide a funding source for the UST cleanup 
program. The LUST Trust Fund provides funding for EPA to help 
administer the nationwide LUST program and implement the program in 
Indian Country. In 1998, Congress also created explicit authority for 
EPA to provide LUST funding for Federally recognized Indian Tribes. The 
majority of LUST Trust Fund monies are provided to states by EPA to 
oversee cleanups, take enforcement actions at leaking tank sites, and 
undertake state-lead cleanups when a party responsible for the leaks 
cannot be found or is unwilling or unable to clean up the site. EPA 
provides approximately 81 percent of the annual LUST Trust Fund 
congressional appropriation to states.
    Since its inception in the mid-1980's, the EPA UST program has 
developed an effective partnership with states to implement the 
program. From the outset, the program was designed to be implemented 
primarily by the states. In general, all states implement an 
underground storage tank program using grants and cooperative 
agreements from EPA. Thirty two states, the District of Columbia, and 
Puerto Rico, have been formally approved by EPA to operate their own 
UST programs in lieu of the Federal UST program. EPA retains the 
authority to implement and enforce a state's UST program in authorized 
states and to implement and enforce the Federal program in unauthorized 
states. EPA continues to work with unapproved states to help them 
improve their programs so that they are eligible for EPA approval.

                            PROGRAM PROGRESS

    At the inception of the UST program, there were more than 2 million 
regulated tanks. Many of them were old steel tanks suffering from 
corrosion. To date, more than 1.5 million substandard tanks have been 
closed. Currently, there are approximately 698,000 active USTs, nearly 
all of which now have required leak detection and prevention equipment. 
Further, states report that approximately 70 percent of these USTs are 
being operated and maintained correctly.
    EPA and the States have made substantial progress in cleaning up 
releases from leaking USTs. Since the inception of the program, 
approximately 427,000 petroleum releases have been reported from USTs. 
Of these, 384,000 have had cleanup started and cleanup has been 
completed for 285,000 of these releases. In other words, cleanup has 
been started at 90 percent of release sites and completed at 67 
percent. Considerable progress has also been made in reducing the 
number of new releases. Since 1990, reported releases averaged 
approximately 30,000 per year. By fiscal year 2002, the number of 
reported UST releases had dropped to 8,400.

                           PROGRAM CHALLENGES

    Although the UST program has made substantial progress, there are 
additional challenges that need to be addressed. There are still 
approximately 140,000 reported releases that have not had cleanup 
completed and there are hundreds of thousands of abandoned USTs that 
need to be addressed. Further, roughly 30 percent of active USTs do not 
comply with leak prevention and prevention requirements. Finally, 
releases are being reported from new and upgraded systems.
    The vast majority of regulated USTs contain petroleum products that 
include toxic substances such as benzene, toluene, and naphthalene. UST 
releases therefore can pose a threat to human health and the 
environment. Further complicating the cleanup of UST releases is the 
presence of methyl tertiary-butyl ether (MTBE). Communities across the 
country are finding MTBE contamination in their groundwater. For 
example, the city of Santa Monica, California has lost a significant 
portion of its drinking water supply due to MTBE contamination caused 
by leaking USTs and in Long Island, New York, MTBE contamination has 
affected more than 160 private and public wells and threatens Long 
Island's sole source aquifer.
    More than 140,000 confirmed releases must still be cleaned up, and 
more releases are reported every year. In addition to addressing these 
known and future releases there are abandoned USTs that must be found, 
removed and cleaned up. The General Accounting Office (GAO) has 
estimated that there is petroleum contamination at approximately 
200,000 brownfield sites. The UST program not only needs to clean up 
releases, but must also focus on prevention. EPA believes that 
preventing releases before they occur will help provide efficient and 
effective protection of human health and the environment.
    GAO has also reported that approximately 29 percent of USTs were 
not operated or maintained properly, finding particular problems with 
leak detection systems and anti-corrosion equipment. While most USTs 
have equipment that complies with program requirements, proper 
operation and maintenance remains a problem. Owners and operators of 
USTs often have many responsibilities in their place of business that 
compete with the time needed to properly operate and maintain UST 
systems. Additional compliance assistance, operation and maintenance 
training, system inspections, and enforcement are needed to improve the 
operation and maintenance of UST systems.
    Finally, new and upgraded UST systems are being found to leak. 
State data indicates that approximately 2 percent of facilities have 
leaks in new or upgraded tanks. The challenge to the UST program is to 
determine the cause of current problems, identify which problems 
warrant further action, and develop appropriate measures to address 
them.

                          PROGRAM INITIATIVES

    EPA has undertaken four initiatives to address the challenges 
facing the UST program: (1) faster cleanups, (2) USTfields for 
abandoned tanks, (3) improving compliance, and (4) evaluating UST 
system performance.
    Working with EPA regions and states, the UST program has developed 
cleanup goals to promote faster cleanups. EPA has also created a web-
based tool box for promoting pay-for-performance contracting methods, 
which in many cases has shortened cleanup times and reduced cleanup 
costs by 30 to 50 percent. In addition, EPA is encouraging the 
development of voluntary multi-site cleanup agreements between state or 
Regional EPA programs and private, Federal, or Tribal owners of multi-
site leaking USTs. Developing multi-site agreements should produce 
program economies of scale that will allow faster cleanups. Finally, 
EPA is partnering with the State of New York on a project to optimize 
the performance of remedial systems at LUST sites.
    EPA's USTfields initiative targets funding for properties 
contaminated with petroleum products from abandoned USTs that had not 
been eligible for funding through the Agency's Brownfields program. In 
November 2000, EPA announced its first ten USTfields pilot grants, and 
its next 40 in August 2001. The report Recycling America's Gas 
Stations, released last year, describes the progress of the first 10 
pilots. In January 2002, President Bush signed the Small Business 
Liability Relief and Brownfields Revitalization Act into law. The Act 
authorizes significant new funding for the cleanup of petroleum 
contaminated properties. The USTfields pilots will provide valuable 
lessons learned as we continue to address abandoned petroleum 
contaminated properties. EPA received over 1200 applications for this 
year's competition and will award the first grants under the new law 
this summer.
    EPA is committed to improving compliance with UST program 
requirements. Working with State and Tribal partners, EPA is focusing 
on the need for improved operation and maintenance and improving the 
quality of compliance data. Improved compliance data will reveal the 
percentage of facilities properly monitoring their systems, rather than 
simply having the proper equipment in place. EPA is also looking at a 
number of new approaches to improve compliance including third-party 
inspections and the use of environmental results programs such as the 
one used by the State of Massachusetts for several commercial sectors. 
These alternative approaches to inspections require UST owners and 
operators to confirm and certify that their leak prevention and 
detection equipment is being operated and maintained properly. Finally, 
the training of both state inspectors and owners and operators is a 
continued need. EPA is working with its state partners to identify the 
best approaches to increase training opportunities, including greater 
use of universities and internet-based interactive training.
    EPA is also focusing on the evaluation of UST system performance to 
help determine the sources and causes of releases, as well as the 
reasons for leak detection failures. The Agency is working with various 
states to evaluate the performance of UST systems, including partnering 
with 24 states to perform leak analysis at new release sites to 
determine the source and cause of the release. In addition, EPA 
gathered and analyzed more than 50 reports or studies generated by 
states and the private sector and met with numerous state program and 
industry experts to identify the strengths and weaknesses of current 
UST systems.
    The evaluation of UST system performance has found that there 
continue to be faults in UST systems including the design, 
installation, operation, and maintenance of various components. Many of 
the problems appear to be caused by human error or lack of oversight, 
such as failure to test and maintain corrosion protection and leak 
detection systems. UST system piping has been identified as a major 
concern, as have spills and overflows during product delivery and 
releases from dispensers. Release detection is not always reliable and 
is reactive by design, not registering the leak until it has entered 
the environment, unless there is a secondary containment system with 
interstitial monitoring, which 21 states now require. Finally, there is 
emerging evidence that vapors are escaping from new and upgraded UST 
systems, which can contaminate groundwater.
    In addition, EPA has undertaken several efforts to assist states in 
addressing MTBE contamination. EPA has provided funding and technical 
support to several communities, including Santa Monica, California; 
South Lake Tahoe, California; Long Island, New York; Pascoag, Rhode 
Island; and Hopkins, South Carolina. Further, EPA now maintains a 
website that documents MTBE cleanup case studies to provide states a 
nationwide cleanup resource. Finally, EPA is conducting a demonstration 
of cleanup technologies for MTBE contaminated soils, groundwater, and 
drinking water at Port Hueneme, California and in Pascoag, Rhode 
Island.

                               CONCLUSION

    Significant progress has been made on a number of UST program 
challenges including the closure of substandard tanks, upgrading 
equipment, improving compliance, and cleaning up releases. However, a 
great deal of work remains to complete UST cleanups and reduce future 
releases through improved UST system operation, maintenance and 
training. We look forward to working with Congress to address these 
remaining challenges.

    Mr. Gillmor. Thank you, Mr. Rothenstein. Your full 
statement will be included in the record.
    Mr. John Stephenson, who is Director of Natural Resources 
and Environment for the U.S. General Accounting Office.

                 STATEMENT OF JOHN B. STEPHENSON

    Mr. Stephenson. Thank you, Mr. Chairman, Ms. Solis and 
members of the subcommittee, I'm here to discuss our work on 
the nationwide problem of leaking underground storage tanks and 
the recommendations we made in our May 2001 report to address 
the problem.
    As you know, studies continue to show that tanks leaking 
petroleum products and other hazardous substances contaminate 
the soil, our water supplies and can pose health risks as well 
as a costly clean up burden. Since our original study, we've 
examined and updated program data and responses to our 
recommendations, as well as other current information. This 
examination shows that while the EPA, as you've heard, has 
taken a number of corrective actions, the problems we 
identified in our report persist and have not been 
comprehensively resolved.
    As you know, Congress established the tank program in 1984 
to protect the public from potential leaks from the then more 
than 2 million tanks, mostly gas stations across the country. 
Under the program, tank owners were required to install new 
leak detection equipment by the end of 1993, and leak 
prevention equipment by the end of 1998. If these conditions 
were not met, owners had to close or remove their tanks. EPA 
has authorized 32 States to implement the program with agency 
oversight and monitoring while 16 other States operate their 
own programs under their own laws with limited EPA oversight.
    Congress also created the Trust Fund in 1986 to help cover 
clean up costs for owners or operators that could not pay. The 
Trust Fund is replenished through a tenth of a cent per gallon 
gasoline tax and at the end of this last fiscal year there was 
$1.9 billion, as you've heard in the Trust Fund. Congress 
annually appropriates about $70 million from that fund.
    Because the States are primarily implementing the tank 
program, the information in our report was based on a survey we 
conducted of all 50 States and the District of Columbia.
    Now here's what we found. As you've already heard, about 
1.5 million tanks have been permanently closed since the 
program began, leaving roughly 700,000 active tanks. About 89 
percent of these tanks were in compliance with the equipment 
requirements, however, we found that almost 30 percent, more 
than 200,000 tanks were not being operated and maintained 
properly, thus increasing the chance for leaks. Indeed, 15 
States reported in our survey that leak detection equipment was 
frequently turned off or improperly maintained.
    For these and other reasons, States estimated that even 
tanks in compliance with the required equipment may continue to 
leak.
    In fact, 34 States reported the potential for such leaks. 
However, neither EPA nor the States can accurately estimate the 
full extent of the problem because many of them do not inspect 
tanks often enough to know. In fact, we found that about 60 
percent of the States do not meet the minimum inspection 
requirement recommended by EPA of at least once every 3 years.
    We also found that most States can levy citations or fines, 
but that only about half have the authority to prohibit fuel 
deliveries which we view as one of the most effective tools for 
ensuring compliance with the program requirements.
    In general, States said that they did not have the funding, 
trained staff or authority to conduct more inspections or to 
more strongly enforce compliance. States still face a 
considerable workload in ensuring that contamination from 
leaking tanks is prevented where possible and cleared up if 
not. This includes both the potentially large, but unknown 
workload of abandoned tanks, not yet identified, as well as the 
inactive tanks that have been identified, but not yet removed.
    To address these problems, we recommended improving 
training, better inspections and enforcement and special 
attention to tanks not yet upgraded, closed or removed. We also 
suggested that Congress consider: (1) expanding use of the 
Trust Fund to include inspection and enforcement activities; 
(2) authorizing EPA to require inspections at least once every 
3 years--I think we said periodically, but we were adhering to 
the EPA minimum (3) authorizing EPA to prohibit fuel deliveries 
to noncompliant tanks; and (4) requiring States to adopt this 
enforcement authority.
    We hope that any underground storage tank legislation 
would, as a minimum, consider these recommendations.
    Mr. Chairman, that concludes my statement. I'll be happy to 
answer any questions.
    [The prepared statement of John B. Stephenson follows:]

Prepared Statement of John Stephenson, Director, Natural Resources and 
          Environment, United States General Accounting Office

    Mr. Chairman and Members of the Subcommittee: I am here today to 
discuss our work on the nationwide problem of leaking underground 
storage tanks (UST) and the recommendations that we made to address 
this problem in our May 2001 report on the Environmental Protection 
Agency's (EPA) tank program.1 As you know, studies show that 
tanks leaking petroleum products and other hazardous substances 
contaminate the soil or water supplies and can pose health risks, such 
as nausea and kidney damage, as well as a costly cleanup burden. Since 
our original report, we have continued to examine and update EPA 
program data and responses to our recommendations, along with other 
information. This examination shows that while the agency has taken a 
number of corrective actions, the problems that we identified in May 
2001 persist and have yet to be comprehensively resolved.
---------------------------------------------------------------------------
    \1\ U.S. General Accounting Office, Environmental Protection: 
Improved Inspections and Enforcement Would Better Ensure the Safety of 
Underground Storage Tanks, (Washington, D.C.: May 4, 2001).
---------------------------------------------------------------------------
    In 1984, the Congress created the UST program to protect the public 
from potential leaks from the more than 2 million operating 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.
    EPA has authorized 32 states to implement the program with agency 
oversight and monitoring, while 16 states operate their own program 
under their own laws with limited EPA oversight. To help states 
implement their programs, EPA provides all states funding (about 
$187,000 per state). In addition, EPA retains direct authority over a 
small number of tanks primarily located on Indian tribal lands. In 
1986, Congress created a trust fund 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 2002, the 
fund had a balance of about $1.9 billion.
    Because the states are primarily implementing the provisions of the 
program, we conducted a survey of all 50 states and the District of 
Columbia in the fall of 2000 to determine the extent to which tanks 
comply with program requirements, how EPA and the states inspect tanks 
and enforce requirements, and whether upgraded tanks still leak. We 
based the findings of our report, which we are discussing today, 
primarily on the survey and our visits to three EPA regions with the 
largest number of tanks to monitor. In addition, since the release of 
our report, we have updated our findings and reviewed states' progress 
in cleaning up tank releases. In summary, we found that:
     About 89 percent of tanks that states monitor had the 
required leak prevention and detection equipment installed, according 
to our estimates at the time of our 2002 survey. EPA data at the time 
indicated that about 70 percent of the tanks its regions managed on 
tribal lands had the required equipment, although not all regions could 
even attest to the location of all tanks on these lands to ensure they 
had been updated. Furthermore, we estimated that almost 30 percent of 
the tanks--more than 200,000--were not being operated and maintained 
properly, thus increasing the chance of leaks and posing health risks. 
For example, 15 states reported that leak detection equipment was 
frequently turned off or improperly maintained. For these and other 
reasons, states reported that leaks persisted even in the tanks with 
the required equipment installed. In December 2002, EPA reported that 
19 to 26 percent of the nation's underground storage tanks still have 
operational problems, although agency program managers think these 
numbers are understated because of inconsistent reporting from the 
states. EPA is working with the states to develop an accurate baseline 
of all tanks that are not in compliance. Both EPA and the states 
attribute operational and maintenance problems primarily to poorly 
trained staff. We recommended that EPA regions work with each of the 
states in their jurisdiction to determine specific training needs and 
ways to meet them. In response, EPA has been working with states and 
contractors to develop less costly training opportunities, such as 
Internet-based training. We also suggested that the Congress consider 
increasing the amount of funds it appropriates for states from the 
trust fund and allow them to spend a limited portion on training.
     While EPA and the states have evidence that tanks continue 
to leak, they cannot determine the full extent of the problem because 
some of them do not physically inspect all tanks. In fact, at the time 
of our survey, over half of the states were not inspecting all of their 
tanks frequently enough to meet the minimum rate recommended by EPA--at 
least once every 3 years, and only one of the three regions that we 
visited met this rate. In addition, 27 states lacked the authority to 
prohibit fuel deliveries to stations with problem tanks--one of the 
most effective tools for ensuring compliance with program 
requirements--and relied instead on issuing citations and fines to 
violators. States said they did not have the available funding, staff, 
or authority to conduct more inspections or more strongly enforce tank 
compliance. We recommended that EPA negotiate inspection goals with 
each state. While EPA has not yet set such inspection goals, it has 
been working with states to use third-party inspectors and other 
options to increase their inspection coverage. We also suggested that 
the Congress may want to (1) consider increasing the amount of funds it 
appropriates from the trust fund and allow states to spend a limited 
portion on inspections and enforcement, (2) authorize EPA to require 
physical inspections of all tanks on a periodic basis, (3) authorize 
EPA to prohibit fuel deliveries to non-compliant tanks, and (4) require 
states to adopt this enforcement authority.
     States still face a considerable workload in ensuring that 
contamination from leaking tanks, including those that leak MTBE, is 
cleaned up, and that funding is available to address these cleanups. As 
of September 30, 2002, states and EPA regions had to ensure the 
completion of ongoing cleanups for about 99,427 leaks and initiation of 
cleanups for another 43,278. States also face a potentially large, but 
unknown, future workload in addressing releases from both abandoned 
tanks that have not been identified and inactive tanks that have been 
identified but not removed. In addition, in a June 2002 Vermont 
Department of Environmental Conservation survey of state funding 
programs,2 nine states reported that they did not have 
adequate funding to cover their current cleanup program costs. 
Therefore, in the future, some states may need to seek additional 
federal support when they turn their attention to addressing the many 
unidentified abandoned tanks nationwide that have no financially viable 
owners or operators to pay for cleanup, as well as increasing and 
costly cleanup of methyl tertiary butyl ether (MTBE).
---------------------------------------------------------------------------
    \2\  Vermont Department of Environmental Conservation, A Summary of 
State Fund Survey Results (June 2002). The Department conducts this 
survey annually.
---------------------------------------------------------------------------

 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 states manage, had been upgraded with the federally required 
equipment by the end of fiscal year 2000. In comparison, EPA data at 
that time showed that about 70 percent of the total number of tanks its 
regions regulate on tribal lands had been upgraded, but the accuracy of 
this data varied among the regions. For example, one region reported 
that it had no information on the actual location of some of the 300 
tanks it was supposed to regulate and therefore could not verify 
whether these tanks had been upgraded.
    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. EPA's most current program data from the end of fiscal year 2002 
show that these conditions have not changed significantly; tank 
compliance rates range from an estimated 19 to 26 percent. However, 
program managers estimate these rates are too high because some states 
have not inspected all tanks or reported their data in a consistent 
manner. The extent of operational and maintenance problems we 
identified at the time of our survey varied across the states, as 
figure 1 illustrates.
    Some upgraded tanks also continue to leak, in part because of 
operational and maintenance problems. For example, in fiscal year 2000, 
EPA and the states confirmed a total of more than 14,500 leaks or 
releases from regulated tanks, with some portion coming from upgraded 
tanks. EPA's most recent data show that the agency and states have been 
able to reduce the rate of new leaks by more than 50 percent over the 
past 3 years.
    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.
    EPA has provided states with a number of training sessions and 
helpful tools, such as operation and maintenance checklists and 
guidelines. According to program managers, the agency recognizes that 
many states, because of their tight budgets, are looking for cost-
effective ways of providing training, such as Internet-based training. 
To expand on these efforts, we recommended that EPA regions work with 
their states to identify training gaps and develop strategies to fill 
these gaps. In addition, we suggested that the Congress consider 
increasing the amount of funds it provides from the trust fund and 
authorizing states to spend a limited portion on training.
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, at the time of our survey, only 19 
states physically inspected all of their tanks at least once every 3 
years--the minimum that EPA considers necessary for effective tank 
monitoring. Another 10 states inspected all tanks, but less frequently. 
The remaining 22 states did not inspect all tanks, but instead 
generally targeted inspections to potentially problematic tanks, such 
as those close to drinking water sources. In addition, one of the three 
EPA regions that we visited did not inspect tanks located on tribal 
land at this rate. According to EPA program managers, limited resources 
have prevented states from increasing their inspection activities. 
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 
legislatures. Figure 2 illustrates the inspection practices states 
reported to us in our survey.
    While EPA has not established any required rate of inspections, it 
has been encouraging states to consider other ways to increase their 
rate of inspections, for example by using third-party inspectors, and a 
few have been able to do so. However, to obtain more consistent 
coverage nationwide, we suggested that the Congress establish a federal 
requirement for the physical inspections of all tanks on a periodic 
basis, and provide states authority to spend trust fund appropriations 
on inspection activities as a means to help states address any staff or 
resource limitations.
    In addition to more frequent inspections, a number of states said 
that they needed additional enforcement tools to correct problem tanks. 
As figure 3 illustrates, at the time of our survey, 27 states reported 
that they did not have the authority to prohibit suppliers from 
delivering fuel to stations with problem tanks, one of the most 
effective tools to ensure compliance. According to EPA program 
managers, this number has not changed.
    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. As a result, we suggested that the 
Congress consider (1) authorizing EPA to prohibit delivery of fuel to 
tanks that do not comply with federal requirements, (2) establishing a 
federal requirement that states have similar authority, and (3) 
authorizing states to spend limited portions of their trust fund 
appropriations on enforcement activities.

    STATES HAVE MADE PROGRESS IN CLEANING UP LEAKS BUT STILL FACE A 
POTENTIALLY LARGE WORKLOAD; SOME MAY NEED FEDERAL FUNDS TO HELP ADDRESS 
                                   IT

    At the end of fiscal year 2002, EPA and states had completed 
cleanups of about 67 percent (284,602) of the 427,307 known releases at 
tank sites. Because states typically set priorities for their cleanups 
by first addressing those releases that pose the most risks, states may 
have already begun to clean up some of the worst releases to date. 
However, states still have to ensure that ongoing cleanups are 
completed for another 23 percent (99,427) and that cleanups are 
initiated at a backlog of 43,278 sites. EPA has also established a 
national goal of completing 18,000 to 23,000 cleanups each year through 
2007. However, in addition to their known workload, states may likely 
face a potentially large but unknown future cleanup workload for 
several reasons: (1) as many as 200,000 tanks may be unregistered or 
abandoned and not assessed for leaks, according to an EPA 
estimate;3 (2) tens of thousands of empty and inactive tanks 
have not been permanently closed or had leaks identified; and (3) some 
states are reopening completed cleanups in locations where MTBE was 
subsequently detected.
---------------------------------------------------------------------------
    \3\ Report to Congress on Compliance Plan for the Underground 
Storage Tank Program, U.S. Environmental Protection Agency (EPA 510-R-
00-001, June 2000).
---------------------------------------------------------------------------
    This increasing workload poses financial challenges for some 
states. In the June 2002 Vermont survey of state funding programs, nine 
states said they did not have adequate funding to cover their current 
program costs, let alone unanticipated future costs. For example, while 
tank owners and operators have the financial responsibility for 
cleaning up contamination from their tanks, there are no financially 
viable parties responsible for the abandoned tanks that states have not 
yet addressed. In addition, MTBE is being detected nationwide and its 
cleanup is costly. States reported that it could cost more to test for 
MTBE because additional steps are needed to ensure the contamination is 
not migrating farther than other contaminants, and MTBE can cause 
longer plumes of contamination, adding time and costs to cleanups. If 
there are no financially viable parties responsible for these cleanups, 
states may have to assume more of these costs.
    In closing, the states and EPA are taking steps to address the tank 
problems that we have identified, but they still 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 do not inspect all of their tanks 
to make sure that they do not leak, nor can they prohibit fuel from 
being delivered to problem tanks. Finally, a number of states do not 
have adequate funds for their programs now, and more of them may face 
financial challenges in the future as they address leaks from abandoned 
tanks and leaks that contain MTBE. We have suggested a number of ways 
that both EPA and the Congress could help correct these problems and 
better ensure the safety of public health.
    Mr. Chairman, this concludes my statement. I would be pleased to 
respond to any question you or Members of the Subcommittee may have.

[GRAPHIC] [TIFF OMITTED] T6051.001

[GRAPHIC] [TIFF OMITTED] T6051.002

[GRAPHIC] [TIFF OMITTED] T6051.003

    Mr. Gillmor. Thank you, Mr. Stephenson.
    And Mr. Edward Galbraith who is the Tanks Section Chief of 
the Missouri Department of Natural Resources.

                 STATEMENT OF EDWARD GALBRAITH

    Mr. Galbraith. Thank you. Good afternoon, Mr. Chairman and 
members of the subcommittee. I'd Ed Galbraith. I'm Chief of the 
Tanks Section for the Missouri Department of Natural Resources.
    I am happy to be here today to provide you with a State 
perspective on implementation of the Federal UST program on 
lessons learned and ideas for improvement. Missouri, like many 
other States, is highly dependent upon ground water for its 
drinking water sources. The toxicity and mobility of gas and 
diesel fuel in ground water make this a vitally important 
environmental issue for our State.
    As you know, the Federal tank program is divided into a 
preventative and a clean up portion and I want to say three 
quick things about the preventative side. The implementation of 
the preventative program, I think, has been excellent and I 
think the petroleum community, the petroleum industry and 
marketers have done an excellent job in acquiring the equipment 
required for leak detection and upgrade requirements as 
required by the Federal and State regulation. In Missouri, we 
implement the Federal program almost identically to the State 
program.
    Although this initial implementation has been good, and I 
would say very good, the results are unknown. We don't know if 
we have success yet, because not enough time, not enough data 
has been accumulated to know if the system is working. However, 
there are things we can be doing today to ensure that the 
program will succeed and those things are better outreach and 
education for tank owners, increased inspections and more 
resources for enforcement.
    Missouri does not believe that a regulatory overhaul is 
necessary at this time. However, there are practical steps that 
we can take today that would improve success dramatically. It 
is incumbent that we, as regulators, partner with tank owners 
to ensure that they are getting the most effective use of their 
investments in pollution prevention technology. They've bought 
the equipment. They've paid for it. Is it working? Are they 
getting what they paid for? That's our first duty as 
regulators.
    Part of achieving that is increased inspections. The 
current regulatory program is theoretically sufficient, yet it 
is highly susceptible to human error. When human error is a 
major factor, adequate oversight is of great importance. I 
agree with many of the statements, opening statements that were 
made and I agree with the gentleman here at this panel that 
increased inspections are needed, but I would encourage the 
subcommittee to consider that any mandate on States to 
periodically inspect tanks every 2 years or every 3 years might 
cause States to sacrifice quality for quantity unless there are 
more resources that go with that mandate.
    In addition, there are specific tools that have been 
mentioned that I think could be effective ways to ensure the 
success of the regulatory program: operator certification 
programs; licensing requirements for people who install and 
repair tanks; tag out programs certainly are, bar none, the 
most effective enforcement tool that would be available to 
States. Many States have that provision. Missouri does not.
    Again, I would say, I would emphasize that as Congress 
considers changes to the regulatory program, Missouri would 
remind them that States are struggling to handle an increasing 
number of priorities with decreasing resources. With some of 
the priorities are State driven and some are coming from EPA, 
we are struggling to meet our commitments today and I would 
encourage Congress not to impose more mandates without 
considering the resource issues that go with that.
    I want to touch briefly on remediation. The Federal Trust 
Fund, I'll just call it the Trust Fund because we all know what 
we're talking about here, has been very successful for States 
in giving us the resources we need to oversight clean ups, do 
emergency response, and to actually go in and perform clean ups 
where an owner is the calcitrant or does not exist in cases 
where there are high priority releases.
    However, the issue of old, abandoned tank sites remains. 
Most States have established remedial funds to take care of 
these paths, if you wish to call them that. However, Missouri 
and many States do not have enough in those funds to handle all 
of the old abandoned tank sites that are out there. In 
Missouri, there are thousands of known abandoned tank sites and 
certainly many hundreds, if not thousands more that we don't 
even know about yet. Abandoned tank sites pose environmental 
and health risks: contamination of ground water, leaching 
offsite into neighboring buildings, soil ingestion for 
occupants of--future occupants of those sites if they're not 
cleaned up. They also have social and economic costs. An 
abandoned tank site is sometimes the first foothold into a 
blight condition in a neighborhood, especially in our urban 
areas.
    As Cliff mentioned, EPA is currently funding 50 UST field 
pilot projects nationwide using Trust Fund dollars and Missouri 
is the recipient of two of those pilots. We commend EPA very 
highly for this ground breaking effort and I would encourage 
this committee to tap into the energy and knowledge and the 
lessons learned from that effort in crafting and addressing 
this problem of abandoned tanks.
    The last issue I want to touch on briefly is above ground 
storage tanks. I know that the U in LUST means underground, but 
if we're talking about problems and ways to fix them, 
legislatively, I would feel irresponsible if I didn't bring 
this up. If I go out to a site today and gasoline from an 
underground storage tank has contaminated some family's well, I 
can use Trust Fund dollars, Federal Trust Fund dollars to 
replace that drinking water source. If that well is 
contaminated by gasoline or diesel from an above ground storage 
tank, I cannot use that money. Above ground storage tanks store 
the same hazardous material. The gasoline is subject to the 
same tax. I feel like I'm not able to do my job in 
circumstances simply because of the circumstance of the locatio 
of the tank and I think that is a problem that many States are 
facing.
    One of the opening statements talked about getting this job 
done and not leaving problems for the future. Above ground 
storage tanks have no requirement for financial responsibility 
as do underground storage tanks, so they don't always have the 
financial resources they need. We cannot spend Federal LUST 
Trust Fund dollars to address these sites. We are creating a 
whole new category of problem sites for the future. I only want 
to bring this to the subcommittee's attention because it is a 
problem that may not have been considered before.
    In closing, Missouri appreciates the subcommittee's efforts 
to consider all these issues and for inviting a State to share 
its perspective and we encourage you to continue to listen to 
State voices as you deliberate on proposed solutions.
    Thank you very much and I'd be happy to take any questions.
    [The prepared statement of Edward Galbraith follows:]

 Prepared Statement of Edward Galbraith, Chief, Petroleum Storage Tank 
           Section, Missouri Department of Natural Resources

    Good morning, I am Ed Galbraith. As Chief of the Tanks Section for 
the Missouri Department of Natural Resources, I am responsible for 
insuring that Missouri has adequate resources and authority to regulate 
the operation and closure of underground storage tanks (USTs) and the 
remediation of petroleum contamination from USTs and aboveground 
storage tanks (ASTs) in Missouri. Our state does not have ``State 
Program Approval'' from EPA at this time, however we have a draft 
application under review with EPA and I do not foresee any roadblocks 
to eventual approval.
    I am happy to be here today to provide you with a state perspective 
on implementation of the federal UST program, on lessons learned and 
ideas for improvements.

                MISSOURI GROUNDWATER IS A VITAL RESOURCE

    Missouri is highly dependent upon groundwater for its drinking 
water. About one-half of our citizens receive their drinking water from 
public and private groundwater sources. The toxicity and mobility of 
gas and diesel fuel in groundwater make this a vitally important 
environmental issue for Missouri. To date, have been about fifty 
impacted drinking water sources, six of them public drinking water 
systems.

                   COMPLIANCE: AN OUNCE OF PREVENTION

    The first goal of the program is to eliminate releases from USTs. 
The deadline for federal upgrade standards was December 28, 1998. Since 
no system is foolproof, the program's second goal is early detection of 
releases before they become threats to human health and the 
environment. During the 1990's there was a staged implementation of 
performance standards for leak detection.
    Many states, including Missouri report that compliance with the new 
leak prevention and detection standards has been very good. The 
percentage of properly upgraded tanks is 98% in Missouri. But while 
initial implementation has been very successful, many states including 
Missouri remain concerned about the ongoing effectiveness of these 
systems. Are they being operated and maintained in a manner that 
insures that they will prevent and detect releases? Most states 
acknowledge that there is a significant gap between ``equipped to 
comply'' and true ``operational compliance'' in the field. A few 
examples of to illustrate this point:

 Many cathodic protection systems, i.e., the electrical fields 
        that are induced to prevent corrosion of steel, are ineffective 
        because of faulty design, installation or operation. We suspect 
        that some tanks are continuing to corrode despite the owners' 
        investment in corrosion protection equipment.
 At many facilities, the overfill prevention devices are 
        circumvented or rendered inoperable, or store personnel are not 
        aware of the procedures for responding to overfill alarms. Some 
        of the more dramatic emergencies and disasters in Missouri and 
        nationwide have been caused by faulty overfill prevention 
        systems.
 Some of the leak detection methods are highly dependent upon 
        the observations and recordings of untrained or unmotivated 
        store personnel and as such the results are unreliable.
 Unscrupulous operators can circumvent some types of leak 
        detection methods.
 Vapor monitoring and groundwater monitoring as means of 
        release detection are highly subjective and unreliable for a 
        number of reasons. They are often ineffective because of poor 
        installation and they do not detect releases in a manner that 
        could be considered ``early.'' Once the contaminant has reached 
        the shallow groundwater and is detected, the release is often 
        very extensive.
    Does this mean that upgraded tank systems are continuing to leak? 
The answer is that we are not certain. It is true that there have been 
relatively few reported incidents of releases from upgraded UST systems 
to date. This may be a sign that the federal program is working. 
However, we have not yet had a chance to gather significant data. Very 
few upgraded tanks have been closed in the four years since the 1998 
upgrade deadline. There could be many leaking tanks out there that we 
simply don't know about and may not until they are closed and the site 
is assessed.

         REVOLUTIONARY OVERHAUL--NO; PRACTICAL PREVENTION--YES

    What should be done; do we need a massive overhaul of the program? 
Missouri does not believe an overhaul is necessary at this time, 
however there are practical steps that we can take today that would 
improve success dramatically.

 Emphasize educational outreach to tank owners and operators. 
        It is the tank owners who have paid for upgrades and they have 
        a stake in reducing their liability associated with releases. 
        Operational noncompliance means that they are not getting what 
        they paid for. It means that they have bought certain equipment 
        but are not deriving its full benefit. It is incumbent upon us 
        as regulators to partner with tank owners and operators to 
        insure that they are getting the most effective use of their 
        investments in pollution prevention technology.
 Increase inspections. The current regulatory program is 
        theoretically sufficient, yet it is highly susceptible to human 
        error and in some cases deliberate interference from dishonest 
        operators. Where human error is a major factor, adequate 
        oversight is of greater importance. If the current regulatory 
        system is to be successful, we must increase inspections. Tank 
        systems are complex, yet the turnover interval for convenience 
        store employees and managers averages six weeks to six months. 
        Under these conditions, an inspection every three or four years 
        is not adequate to insure that facilities are operating 
        properly.
 Some states have implemented operator certification programs 
        that utilize efficient online training and testing services 
        that are effective yet do not place undue burdens on tank 
        owners and operators.
 Negligent tank contractors are sometimes responsible for the 
        operational compliance problems we observe. Because contractors 
        are not currently regulated in many states, the tank owner is 
        often in an awkward position, facing compliance pressures from 
        state regulators because of poor contractor work. The federal 
        program could address this by certification or licensing 
        requirements for tank contractors that install, inspect, repair 
        and remove USTs.
 Phase out certain currently-acceptable leak detection methods 
        or require routine tightness testing to accompany certain 
        methods.
 Enact criminal provisions for deliberately circumventing 
        overfill prevention devices.
 Increase resources for criminal investigators to pursue 
        evidence of falsification of leak detection or other records.
    As Congress considers changes to the regulatory program, we would 
remind the subcommittee that states are struggling to handle an 
increasing number of priorities with decreasing resources. Some of 
these new priorities come from EPA, others are driven by state issues. 
We are struggling to meet our commitments today and we would encourage 
Congress not to appropriate more dollars to the state only to append 
more requirements and mandates.

        USE OF LUST TRUST FUND FOR LEAK PREVENTION AND DETECTION

    The federal grant program does not currently provide significant 
funding for prevention to states. The vast majority of federal dollars 
for state tank efforts goes to cleanup activities and states must rely 
primarily on state funds for implementing the pollution prevention 
program. Given what we know about the vast sums of money spent on 
releases, not to mention the potential for harm to human health and the 
environment, we believe that it simply makes sense to allow use of LTF 
resources for prevention.

           REMEDIATION OF RELEASES AND LONG-TERM STEWARDSHIP

Releases from Operating USTs
    One of the key components of the regulatory program is insuring 
that active, operating tank sites demonstrate financial responsibility 
for addressing releases discovered before or during closure activities. 
Tank owners can select from a variety of tools such as state insurance 
funds, private insurance, financial self-test, etc. In general, the 
regulatory framework for these mechanisms is adequate.
    Currently, the federal LUST trust fund cannot be used to address 
contamination where there is an identified owner or operator except 
under limited conditions and only under the provision that the state 
will seek recovery of costs. The state feels that this is appropriate 
and the LTF should not be used to subsidize cleanups for current 
releases from in-use tank operations.

Abandoned Tank Sites
    However the issue of old, abandoned tank sites remains. Most states 
have established remedial funds to attempt to deal with the problem of 
``past sins.'' However in Missouri as in many states these funds will 
not be able to address all old abandoned tank sites, either because of 
eligibility limitations or because of lack of funds. The problem of 
abandoned tank sites is so large that many states lack the most basic 
information about numbers and types of sites. In Missouri, there are 
thousands of known abandoned tank sites where our only information is a 
name and an address. In addition to these, we continue to discover 
previously unknown sites, often as a result of private property 
transactions.
    Abandoned tank sites pose environmental and health risks such as 
contamination of groundwater and risks via ingestion, inhalation and 
dermal contact by occupants of properties who may be unaware that they 
are living or working on a site that has petroleum contamination. 
Abandoned sites also present economic and other social costs to 
communities. Properties with abandoned tanks remain undeveloped, 
stigmatized by the perception of contamination. Old tank sites often 
provide a foothold for blight where redevelopment might otherwise 
occur. In many cases, we have observed whole blocks of vacant 
properties that go undeveloped because of the presence of an old gas 
station on the corner lot.
    EPA is currently funding fifty ``USTfield'' pilot projects 
nationwide using LTF dollars. Missouri is the recipient of two of these 
and we commend EPA for initiating this groundbreaking effort. I would 
encourage this committee to tap into the lessons learned from this 
effort to find out how the LTF can be used more effectively to address 
the problems of the nation's abandoned tanks sites. One of the lessons 
we have learned in Missouri is that the cost recovery provisions of the 
LTF can be an unnecessary roadblock to cleanup of abandoned sites where 
there original owner and operator are long gone, yet the current 
property owner meets the statutory definition of owner.

           ABOVE GROUND STORAGE TANKS ARE NOT COVERED BY LTF

    The LTF, by definition does not address aboveground petroleum 
storage tanks. This is a problem for states confronted with emergency 
situations and drinking water impacts involving contamination from 
aboveground tanks. One example of this is a family with two small 
children who live in the town of Cadet Missouri, about sixty miles 
southwest of St. Louis. About two years ago, their private well became 
contaminated with petroleum. At the time, we were only aware of an 
aboveground tank site. As a result, while we could do some 
investigation under the LTF, no money could be spent to provide a new 
well for the Warden's and their family. As a result, for over a year, 
the Wardens had to cook and drink with bottled water and could not 
shower or bathe at home. Every night or two they would have to take 
their two children to a neighbor's to bathe. The fire department 
regularly delivered water for animals and livestock. It was only after 
a year of investigation and interviews that we discovered another tank 
site, a UST site in the vicinity that was also a contributor to 
contamination. At that point we were able to spend LTF dollars to 
provide a new well in a deeper aquifer for the family.
    Why did this need to happen? Aboveground tanks store the same 
hazardous substances as USTs. The fuel in them is subject to the same 
taxes. Yet they are not eligible for expenditures under the LTF.
    Furthermore, aboveground tanks are held to a lesser compliance 
standard than USTs and frankly cause more problems than do operating 
UST systems. The corrosion prevention standards for underground piping 
are much less rigorous for aboveground tanks even though it's the same 
type of pipe going under the same ground. There is no suitability 
requirement or periodic inspection for aboveground tank bottoms as 
there is for the UST shell. Leak detection requirements for aboveground 
tanks are not adequate It should come as no surprise that of releases 
from active tanks systems in Missouri in the past two years, the 
majority are from above ground tanks. Furthermore there is no federal 
requirement for financial assurance or for environmental assessment at 
closure.
    We would ask that the subcommittee consider whether it is time to 
bring regulatory standards for ASTs up to par with USTs and suggest 
that the LUST Trust Fund be made available for use at AST sites.
    I want to thank the subcommittee for considering these issues and 
for inviting a state to share its perspective. We encourage you to 
continue listening to state voices as you deliberate and propose 
solutions to these issues. Missouri is prepared to partner with 
Congress and EPA in moving the tank program forward, cognizant of the 
resource limitations which are so critical at this time.
    If you have any questions, I would be happy to try to address them 
at this time.

    Mr. Gillmor. Thank you, Mr. Galbraith. The bells indicate 
that we have 15 minutes to vote, so soon we'll take a break, 
but let me try to get through some questions before we do that.
    First of all, Mr. Galbraith, you mentioned we ought to 
expand this program to above ground tanks. I'd like to ask the 
other two gentleman your views on that.
    Mr. Stephenson. I would yield to the gentleman from the 
state. We don't have any statistics on what percentage of the 
tanks are above ground, but when you're considering MTBE 
contamination I would suggest that it's also a problem from 
above ground storage tanks, marine tanks, for example, so I'm 
not sure what the magic is in being underground versus over top 
of the ground.
    Mr. Gillmor. Would you agree with that, Mr. Rothenstein?
    Mr. Rothenstein. We will look at the issue. We don't have a 
position on this, but I actually, it is an important issue. I 
know the public really doesn't care where the release came 
from, but I'd ask you to consider a couple of things. First, it 
would greatly expand the scope of the program. Right now it is 
limited to leaking underground tanks. There are 700,000 of 
those active tanks there of which a number of them are leaking.
    Second, I think it could stress the ability of our program 
and other State programs to address leaking underground tanks. 
That in some ways has been borne out in some States where they 
have their own State funds to address tank problems and in some 
cases their fund is eligible for more than underground tanks 
but available for above ground tanks, heating oil tanks. And in 
those cases, some States have had difficulty meeting the 
obligations under the--for the leaking underground tank fund.
    And then the final thing just to keep in mind is the tax on 
petroleum at the refinery or the time it comes into the 
country, that tax, the tenth of a cent per gallon can be 
refunded if the petroleum is ultimately just from nonregulated 
underground tanks. So right now the money that we get is for 
petroleum that's going to underground tanks. So there's some 
factors that I think need to be considered.
    Mr. Gillmor. Some of that money, in fact, is refunded?
    Mr. Rothenstein. Some of that I guess is----
    Mr. Gillmor. Is there a claim against----
    Mr. Rothenstein. There is. If indeed, there's a request for 
that and it's money that goes into an above ground tank and 
it's ultimately dispensed from that above ground tank, they're 
not obligated to pay the tax.
    Mr. Gillmor. But my question is is there money in the fund 
now that could be subject to be taken out? Is there refund 
claim or are we satisfied that the money that's in there we 
have?
    Mr. Rothenstein. I would have to get back to you on that.
    Mr. Gillmor. I appreciate that.
    Mr. Rothenstein. I don't know.
    Mr. Gillmor. One quick question here. I'm trying to get a 
handle on the need in terms of our authorized expenditures. And 
the gentleman from Missouri has indicated the money you're 
getting is adequate to do the program with one exception and 
that's cleaning up the remedial tanks which would be a pretty 
big number. Can you, do you have enough information to give me 
kind of a guesstimate, if we were going to have a program that 
did everything that in theory the bill's original law set out 
to do as to how much money we're talking about?
    Mr. Galbraith. We have not made that calculation. We 
certainly, as you develop legislation, we'd be happy to take a 
look at that and provide some estimates. But we haven't done 
that at this point.
    Mr. Stephenson. The only thing we've heard is that it's 
about $88,000 per site on average and a typical site would have 
three to four tanks. So I can't do the math in my head, but 
you're talking about hundreds of millions of dollars.
    Mr. Gillmor. You know, I would appreciate it if you could 
get back to us as soon as you can because if things go right 
here, we're hoping that we're going to have a bill that's not 
going to be gathering dust here and maybe moving. So as soon as 
you can get back, it would be good.
    Let me ask one more question and we'll take a break.
    Mr. Stephenson, since you did your report in 2001, have 
there been any other significant findings that GAO has made 
that would be relevant to the program?
    Mr. Stephenson. No, we updated our information a little bit 
from last year's MTBE hearing before this subcommittee and then 
again in preparation for this committee hearing, but we haven't 
done a wholesale look, a comprehensive look at the program 
since then, enough to verify that the percentages are roughly 
the same as they were 2 years ago. We would need to redo our 
survey.
    Mr. Gillmor. I'm advised that there are three votes. Three 
votes means we're probably going to be back here in about 30 
minutes. We'll be finishing a 15-minute vote and doing two 5-
minute votes. So at this point we will recess.
    [Brief recess.]
    Mr. Gillmor. We'll go to Mr. Wynn for questions, if you 
have some.
    Mr. Wynn. Not at this time, Mr. Chairman. I would like to 
submit my written statement.
    Mr. Gillmor. Very good. Without objection, so ordered.
    We will now turn for questions to the ranking member of the 
subcommittee, Congresswoman Solis.
    Ms. Solis. Thank you. My first question I'd like to direct 
to Mr. Rothenstein and I appreciate your comments and equally 
all the other witnesses here, but I did want to ask, are you 
finding that there are still leaks coming from equipment that 
has been upgraded? And if you could give me an idea of what 
your opinion is on support of potential secondary containment 
for newly installed tanks.
    Mr. Rothenstein. Thank you. We have heard some of those 
issues as well that there are some leaks that are coming from 
newly upgraded, new and upgraded systems. We've got some major 
studies under way with States, industry to try to evaluate the 
source and causes of these releases.
    What we're finding that most tanks actually are much better 
than they have been in the past, but where the source and 
causes are generally due to two principal problems and I think 
both of them have been mentioned here already. One is human 
error. Operators or owners or poor installation problems, 
failing to maintain or operate the equipment properly. I think 
some folks have said that the leak detection alarms were hooked 
up improperly, hooked up to the light switch where, when you 
shut it off, sometimes at night you shut the light switch off 
and the alarm goes off.
    The second issue is related to, in some cases, the 
equipment itself and we're finding that there are leaks from 
some of the equipment, some of the piping, the tanks, the 
dispensers themselves where the gasoline pump where you go to 
pump gas in your car are leaks from that. So we're looking into 
the source and causes. We found some interesting trends and 
what we're hoping to do is work with the States and work with 
others to evaluate what should be done and what could be done.
    We're looking to see what some States have done, and in 
fact, they have a whole host of different things, including 
secondary containment.
    Ms. Solis. I have a chart that was given to me, shared with 
me, regarding Florida's plan. They've actually instituted this 
secondary containment program and have had some very good 
results in the chart here. It shows you where they first 
started and implementation has been a very strong, obviously 
enforcement and everything else that's working. Standards have 
helped to improve the containment there, so I would be 
interested in hearing from you in terms of the possibly working 
with us on language as a containment remedy, or another remedy 
here that we should be looking at more seriously.
    Mr. Rothenstein. We would certainly be wiling to work with 
you. We have looked at the Florida information. We know that 
there are, I think, about 21 States today that require 
secondary containment.
    Ms. Solis. Right.
    Mr. Rothenstein. In one form or another. Florida is one of 
them and some of the results that you have show some positive 
benefits.
    Ms. Solis. One of the other questions I had for Mr. 
Stephenson is with respect to the report. You kind of stated 
that perhaps there's a need to gather more information and that 
the report was done in 2001 and you said basically things may 
not have changed, but can you clarify that for me? Is there 
still a need to do more data collection?
    Mr. Stephenson. We didn't redo our survey of 50 States and 
the States are the ones with all the information on the status 
of clean ups and everything else. We did enough spot checking 
to assure ourselves that, in general, the percentages of 
compliance and so forth were reasonably--as we reported in our 
report--reasonably the same.
    Ms. Solis. There seems to be a consensus that we need 
stronger enforcement and more frequent inspections, if we're to 
prevent releases of contaminants. The Defense Department is 
challenging State authority to assess penalties for violation 
of the UST regulations and has also challenged EPA's authority 
to assess these penalties. Do you think the Federal facility 
should be subject to the same enforcement sanctions including 
penalties that apply to private industry, State and local 
governments that own or operate underground tanks? This is for 
Mr. Galbraith?
    Mr. Galbraith. I'm sorry?
    Ms. Solis. Anyone can answer, but I'm sure everyone is 
aware of this issue.
    Mr. Galbraith. Forgive me, I thought you were directing 
your question elsewhere and I was taking notes.
    Ms. Solis. I'd like EPA to respond.
    Mr. Rothenstein. I think that we haven't taken any specific 
position on any language that I know is in certain bills, but 
we do believe that Federal facilities are and should be subject 
to the same set of requirements as anybody else.
    Ms. Solis. Including penalties?
    Mr. Rothenstein. And we believe the same thing is true 
including penalties and I think we feel that that is the case.
    Mr. Galbraith. I agree that Federal facilities should be 
subject to exactly the same standards.
    Mr. Stephenson. I don't know what the national security 
implications would be. That's what they always cite when they 
want to be treated differently than a private facility, but a 
polluter is a polluter.
    Ms. Solis. If I might, I'd just like to ask one more 
question to Mr. Galbraith at this time and that was with 
respect to above ground storage tanks and you mentioned about 
the dilemma there. Can you touch on that a little more?
    Mr. Galbraith. There is regulation of above-ground storage 
tanks to the spill prevention and countermeasures law. It is 
designed to address terminals, okay, facilities, that have very 
large facilities. What I'm talking about are gas stations, 
retail gas stations. They're more common in rural States 
because safety issues preclude above ground storage tanks in 
urban areas for the most part.
    There is a regulatorily uneven playing field between gas 
station A with underground storage tanks and gas station B and 
I don't think the prevention measures for above ground storage 
tanks are equal to those for underground storage tanks.
    Ms. Solis. Do you think that's something that we should be 
looking at as we begin the process of looking at potential 
legislation and funding for that?
    Mr. Galbraith. I do because we're talking about tank issues 
and petroleum. This would seem to be the appropriate place to 
raise those issues and questions.
    Ms. Solis. And you also mentioned something about your plan 
that you use in Missouri, prevention, and you kind of 
underscored that you need more money to provide for clean up, 
but also to do more outreach and things. Is there a dollar 
amount that you can put to that?
    Mr. Galbraith. We currently get to our tank sites once 
about every 3\1/2\ years for inspection. I think once every 2 
years would probably be more adequate, so I'm talking about 
possibly doubling our resources for inspection. The State pays 
for inspection resources at this time. We spend about, in terms 
of personal service, we spend about $400,000 a year on 
inspections. So if you double that, I think would give us a 
more adequate level of inspection effort.
    Mr. Gillmor. The gentlelady's time has expired. The 
gentleman from Indiana who has 8 minutes.
    Mr. Buyer. Thank you. I'm relatively new to the issue. My 
immediate reaction which I'd like your comment, Mr. Stephenson, 
as I reviewed your report, when you say that 27 States lack 
authority to prohibit fuel deliveries to stations with problem 
tanks, and they're relying on issuing of citations and fines to 
violators rather than stopping the operations, are you saying 
that the issuing of citations and fines has not proven itself 
to be effective?
    Mr. Stephenson. Yes, we're suggesting that red tag 
authority or a prohibition of fuel deliveries is kind of the 
ultimate enforcement tool that we think States need in their 
arsenal for particularly bad performers year in and year out. 
The fines don't seem to have worked in some egregious cases.
    Mr. Buyer. Would you comment on my sense of having read 
your report that States perhaps don't view this issue with the 
same priority that perhaps Congress may be viewing the issue or 
the EPA.
    Mr. Stephenson. Well, the state--right now, the States run 
these programs, not the Federal Government for the most part 
and so you have to get a red tag authority through the State 
legislature.
    Mr. Buyer. I understand we can continue the oversight. I 
mean obviously these States, what we may think is a major 
priority or a big concern with regard to the country, the 
States must not be.
    Mr. Stephenson. Further in the report you'd see that based 
on our State survey, most of them want this red tag authority 
and would like it federally mandated.
    Mr. Buyer. If we pay for it, right? They want the money.
    Mr. Stephenson. They don't want unfunded mandates, that's 
true.
    Mr. Buyer. Absolutely right. This Congress has already 
voted and said we don't want to fund, we're not going to do 
unfunded Federal mandates.
    Mr. Stephenson. That's true. That's why we went further to 
suggest that the Trust Fund could be expanded beyond clean ups 
to include some of these inspections and enforcement tools.
    Mr. Buyer. I guess my reaction is gee, I can do more 
training and do more enforcement and do more inspections if you 
just give me the money. These are State legislatures, they're 
dealing with the same issues that we're dealing with. If a 
Governor out there felt and thought that it was a priority or 
that there was a concern in his particular State, I think he 
would care.
    Mr. Stephenson. I think this is a perfect question to ask 
our representative from the State here on what the situation is 
in Missouri.
    Mr. Buyer. Yes, but he didn't travel all the States. He 
didn't have a good overview and that's why I'm asking you. I'm 
taking from your report an opinion and you're saying the 
opinion you're deriving from this report I disagree with. 
That's what I'm asking you.
    Mr. Stephenson. But it's not a GAO opinion. It's an opinion 
based on a survey of all 50 States from people just like the 
gentleman sitting next to me in Missouri.
    Mr. Buyer. Let me ask Mr. Stephenson's opinion?
    Mr. Stephenson. I think, we think red tag authority is 
needed in some cases. That doesn't mean you have to exercise it 
all the time, but if you have an egregious performer, year in 
and year out, that seems to ignore fines, then it's a tool that 
we think should be in the enforcement arsenal that States have.
    Mr. Buyer. Well, Missouri, you're one State out there, what 
are your comments on my interpretation?
    Mr. Galbraith. Well, I think speaking for Missouri, we take 
this issue very seriously and I don't want to leave the 
impression that the States that don't have certain types of 
tools don't want them. There's reasons, maybe political reasons 
why, for example, Missouri does not have the authority to tag 
out a tank that's noncompliant.
    I think what we're talking about here, EPA or the Federal 
Government sets the base program. States are free to innovate 
and go beyond that, if they wish, and I think what we're 
talking about here today is should the Federal program, base 
program have a tool for tagging out tanks that are 
noncompliant.
    It's not a money issue. Okay? It's an enforcement tool 
issue which might actually get cost savings because instead of 
paying staff to do civil enforcement, you have a very immediate 
at the pump tool. So that's one way to think about it.
    Mr. Buyer. Let me ask this question, if anybody can answer. 
I'm going to show you how new I am to this issue. When I think 
about these new tanks that are put in the ground, I think that 
they are all double walled. Is that--am I completely off target 
here?
    Mr. Rothenstein. Not all of them are. There's no 
requirements for double walled tanks. In fact, to meet the 
requirements that we established, they have a whole host of 
choices. They could go back and reline some of the existing 
tanks. It's called carthotic protection. They could purchase a 
fiberglass tank. They could purchase a double walled tank.
    There's a lot of single wall tanks that are still in the 
ground today that meet the requirements----
    Mr. Buyer. Therein lies the problem? Meaning, yes, I've 
upgraded to a new tank, but we still have tanks, new tanks that 
are now also leaking.
    Mr. Rothenstein. That's what we're finding in some cases. 
Now, a lot of companies have decided that they're going to, 
because it's not all that much more expensive we've heard, 
they're putting in double walled systems when they're building 
a new facility. They're going ahead and making the expense to 
double wall their systems.
    The real purpose is with a double walled system what you 
get is you have--you can catch a leak before it actually gets 
into the environment.
    Mr. Buyer. I understand that. Mr. Stephenson, with regard 
to citations or fines that are out there, what are we talking 
about? What are the fines? What are the level of fines across 
the country for violations?
    Mr. Stephenson. It varies from State to State and I don't 
recall the exact numbers.
    Mr. Buyer. For a particular violation, you don't recall any 
of those?
    Mr. Stephenson. It ranges all over the place.
    Every State sets its own fine limits. I can probably get 
that for you.
    Mr. Buyer. I'm just curious as to--when you cite it and I'm 
just curious as to why citations or fines are not being an 
effective tool. My gosh, an executive branch government has 
tremendous power. I wouldn't like those things to continue to 
stack up I mean if I were an operator out there. Obviously, 
somebody is going to make a business judgment or decision. 
Repeated citations, repeated fines, you would think would be an 
effective tool. I don't like speeding tickets, right?
    Mr. Stephenson. Have you stopped speeding?
    Mr. Buyer. I refuse to answer that question on the grounds 
it may incriminate me.
    I yield back my time.
    Mr. Gillmor. The gentleman yields back. The gentleman from 
Maryland.
    Mr. Wynn. I thank the Chairman. I do have just one question 
I would like to ask and it's pretty localized so if you don't 
have the information, I certainly understand and hope that you 
would get it back to me.
    On December 11th, EPA issued an order to Chevron, 
Incorporated regarding the cross border dispute which arose 
from a facility in Maryland which for want of a better word, 
bled, being an underground storage tank, into the District of 
Columbia. Because of the nature of the dispute, EPA took 
jurisdiction and required a corrective measure study. And 
basically what I wanted to know was what's the study of that 
study, No. 1; and No. 2, EPA wished to meet with a community 
group of citizens, an executive committee in January and I 
wanted to know if EPA had actually done that?
    Mr. Rothenstein. I am familiar with this and we did, in 
fact, issue an order requiring that action be taken and I 
will--the enforcement and the activities are being handled out 
of our regional office in Region 3, so I will have to get back 
to you, if I could with a quick respond.
    Mr. Wynn. That would be fine. That's all I have.
    Mr. Gillmor. The gentleman from California.
    Mr. Issa. Thank you, Mr. Chairman. Mr. Rothenstein, the 
leakage program, if you will, sits with a Trust Fund 
approaching $2 billion. The budget calls for less money than 
will probably come in in new revenue this year to be spent. 
Tell me, if we doubled it, tripled it, quadrupled it, are there 
places to spend it that would be--that would make our water and 
our ground table cleaner?
    Mr. Rothenstein. Let me answer that in a couple different 
ways. First----
    Mr. Issa. Yes or no, is my preference.
    Mr. Rothenstein. I suspect there are ways that it could be 
spent. The money that we're getting today, we think we're 
spending it very, very efficiently in getting a good return on 
our investment already, No. 1, at the Federal level.
    The vast majority of the clean up costs though are paid for 
by the States. They have $1 billion per year that the States 
are devoting to cleaning up leaks from underground storage 
tanks. So it's our money plus their money that is being used to 
address that. And as a result of this money, we're able to 
clean up somewhere between 16,000 to 18,000 sites a year.
    Mr. Issa. And the second half of the question, second half 
of the answer is if you had more--understanding you being 
efficient, effective, frugal, prudent. If you had more money, 
are there sites that you'd be able to clean up sooner and make 
our water table cleaner sooner? Sorry to be the guy to have to 
ask you that question, but it's extremely important to this 
committee.
    Mr. Rothenstein. I think there's a lot of sites out there 
that where there's a lot of work that's currently underway and 
there are probably different types of options that could be 
used at any one of those. I'm not sure that it's necessarily a 
resource problem in terms of sites going uncleaned up at this 
point. They might choose different remedies, I'm not sure about 
that, but I think the way we're using it right now, we're 
trying to look for the most efficient approaches using the 
money and I think we're able to address a good number of sites 
with the money that we're getting.
    Mr. Issa. Thank you. Let me ask a follow up that is 
slightly different.
    Mr. Rothenstein. Sure.
    Mr. Issa. If we were able to give you a contingent account 
that would give you the ability to use additional funds should 
you find programs or opportunities beyond the ones you 
presently forecast, would that be a useful tool for you, not 
knowing what things are going to be like 7, 8, 9, 10 months 
from now?
    Mr. Rothenstein. Well, we today are having to address MTBEs 
as one of the examples and we're working with States----
    Mr. Issa. That's my next question.
    Mr. Rothenstein. Yes, we're working with States. I mean 
that's sort of the contingency. Those are emerging problems 
that we've had to deal with and what we've done within our 
current budget is establish a number of pilots to try to work 
with the States, develop new innovative technologies, work with 
our Office of Research and Development and provide technical 
assistance in reviewing a whole host of documents. So we're 
able to handle a lot of that today, I believe.
    Mr. Issa. What is more damaging to the environment, MTBE in 
the water or the difference in air quality if you 
hypothetically didn't put in oxygen into the fuel at all, worst 
case?
    Mr. Rothenstein. I'm not sure I can answer that comparison 
between the two. I can tell you that when MTBE gets into the 
ground water and it affects the drinking water, well, people 
don't drink it because of taste and odor thresholds and 
potential health effect problems. So there's some issues 
associated with that on the ground water side.
    Mr. Issa. In the last Congress, you might recall that I had 
a bill on the floor that died painfully, specifically to allow 
California to have an alternate mixture that would meet air 
quality standards, but without any oxygen in it, obviously 
trying to get around MTBE without mandating the only 
alternative, thus mandating a monopoly, if you will. We didn't 
get anywhere on that, but I would be interested to have an 
answer to the basic question if you can your team of scientists 
give us the, if you will, the tradeoff, the health hazards of 
MTBE versus worst case, if hypothetically we just stopped using 
MTBE and had the cleanest nonoxygenated formula, how much of an 
impact would it really be since this body, which I'm pleased to 
belong to, but was disappointed in their vote, wouldn't allow 
us to give them completely clean fuel or up to the Federal 
standard, up to the State standard which is greater than the 
Federal standard, unless we used specific oxygen in it which 
was both expensive and almost single source domestically.
    The next question I really--you know what? I think I'll 
forego any other questions at this time, Mr. Chairman, I yield 
back.
    Mr. Gillmor. The gentleman from California yields back. The 
gentleman from New Hampshire?
    Mr. Bass. Thank you very much, Mr. Chairman. As my friend 
from California no doubt knows, one of the reasons why MTBE 
continues to be part of the mixture for fuels in States such as 
mine and his is because there is not a majority of votes on 
this committee to change that policy and the EPA has to do what 
it has to do under the circumstances it finds itself in and I'd 
point out that in my State, over 15 percent of the public water 
supplies are contaminated now with MTBE; 27 percent of private 
wells are contaminated. In one town alone, 70 percent of the 
water supply is contaminated with MTBE and the State Department 
of Environmental Services is continuing to cope with this 
problem, which is growing exponentially even now. And even 
though New Hampshire was in the forefront in leaking 
underground storage tank replacement, the nature of the 
substance is so devastating to the immediate environment that 
the impact is almost incalculable.
    My only question to the representative from the EPA is is 
the current LUST program adequate to address these emerging 
problems with MTBE and are there any changes that need to be 
made in the law in order to make it work better with this 
particular problem?
    Mr. Rothenstein. In terms of the authority to address MTBE 
to clean it up, we do believe we have that authority. We are, 
in fact, spending money from the LUST Trust Fund to assist 
States in the clean up of MTBE.
    Some of the improvements that I talked about before that 
we're looking at to prevent leakage from underground tanks 
through better inspections, better operator training, looking 
at some of the equipment issues. We think some of the things we 
have underway could be very helpful in terms of preventing 
leaks from tanks which ultimately would address the problem. 
But there's two parts to this. One is cleaning up what's out 
there already and trying to prevent the problem from occurring 
and I think we feel that we are able to do much of that. Could 
we do a better job? Always.
    Mr. Bass. Although this may be a little outside of the 
realm of this hearing, because of its high solubility in water, 
MTBE is a threat not only from the leaking underground storage 
tank, but from any kind of a spill, at the gas pump or outside 
somebody's garage or anywhere else and it's virtually 
impossible to capture the way some of these other substances 
are. Do you agree with that?
    Mr. Rothenstein. I think we have heard that that MTBE is 
actually--the largest source of releases are from underground 
storage tanks, but you're correct it is coming from other 
sources.
    Mr. Bass. Thank you, Mr. Chairman.
    Mr. Gillmor. Thank you, Mr. Bass. The gentleman from Idaho.
    Mr. Otter. Well, thank you very much, Mr. Chairman. I just 
have one question and perhaps you can embellish this for me, 
Mr. Stephenson. Would you tell me why Idaho is the only State 
where the EPA has to enforce the tank inspection law?
    Mr. Stephenson. States apply to run the program or not. 
Apparently Idaho did not ask to run the program. Therefore, EPA 
runs the program for them.
    Mr. Otter. Do you know why?
    Mr. Stephenson. No, I don't.
    Mr. Rothenstein. I just checked with my staff expert. I 
think we're also in the process right now with working with the 
State to try to get program approval. We've got 32 States that 
are approved to run the program right now. It's really up to 
each State to decide whether they want the program or not and I 
think up until now it hasn't been in the case. Now our region 
is working with the State to work through the issues.
    Mr. Otter. Perhaps I should have started with a different 
question with both of you gentlemen. How long have you been 
with the Agency?
    Mr. Rothenstein. I've been with this program for 3 years.
    Mr. Otter. And you, sir?
    Mr. Stephenson. I've been with GAO for 30 years, but not 
involved in this program that long.
    Mr. Otter. I see. Would it be a surprise to you, one of 
you, if I suggested that one of the reasons the State of Idaho 
decided to let the Environmental Protection Agency enforce the 
tank law was because of the inconsistency of application of the 
rules and regulations?
    Mr. Rothenstein. We----
    Mr. Otter. Would that be a surprise to you? Have you ever 
found that in any other state?
    Mr. Rothenstein. I'm not sure--our rules provide, are 
basically run by the States and they provide a great deal of 
flexibility. I don't know if that means inconsistency or--I 
would characterize it as a program that provides flexibility to 
the States to implement it the way they try to see, best suits 
their needs. I'm not sure I would necessarily characterize it 
as inconsistent.
    Mr. Otter. Mr. Stephenson?
    Mr. Stephenson. That's an excellent answer. I mean most 
environmental programs are intended to give the States a lot of 
flexibility in how they implement the rules.
    Mr. Otter. I think it would be an excellent answer if it 
was the correct answer, but I was Lieutenant Governor of Idaho 
for 14 years and the biggest problem we had was agreeing to 
what the rules and the regulations were and the interpretation 
by the folks on the scene. And so when we found an 
interpretation on one side of the State, we're a mountainous 
region and a desert region or a forested region with high 
rainfalls, we couldn't come up with a set of rules that we 
could apply equally to the State under equal protection. So we 
just decided that if you guys know the rules, we'll let you run 
them.
    One other question, how much has the brownfields 
legislation that we passed last year under the President's 
initiative helped in the clean up?
    Mr. Rothenstein. Well, the brownfields first grants are not 
yet, have not yet been issued. This is the first year that 
we're beginning to implement those grants, but what I can say 
is the brownfields pilots that EPA had been implementing for 
several years and the UST fields pilots that we recently began 
to implement are making a difference. A lot of the communities 
are very excited about finding these abandoned gas stations, 
cleaning them up and returning them to productive uses. They're 
building new restaurants, cultural centers, parks and it really 
is helping to restore hope and health to the communities.
    Mr. Otter. I'm not sure we can stand any more golf courses.
    Mr. Rothenstein. Well, gas stations are kind of small for a 
golf course, but that's near and dear to my hear too.
    Mr. Otter. Thank you, Mr. Chairman.
    Mr. Gillmor. Thank you. We'll go to a second round of 
questions. I have a couple here on red tag. My understanding is 
any State could do a red tag law, it's just that a number of 
them haven't? Is that accurate?
    Mr. Rothenstein. Yes, I think it's up to the--states are 
subject to their own laws and regulations and they would have 
the authority. Twenty-three of them, I believe, do have some 
form of red tag authority.
    Mr. Gillmor. What you're picking up in your report was some 
of the State enforcement officers who don't have that authority 
are kind of asking Congress to force the States to do it, since 
they can't convince their own elected officials to do it. Is 
that an accurate statement?
    Mr. Stephenson. Yes, that was based on our survey results. 
That's pretty much what they said.
    Mr. Gillmor. You mentioned that in terms of funds from the 
Federal Government which mainly go for administration at the 
State level, but the States are themselves spending $1 billion 
on clean up. What's the source of those funds in those States?
    Mr. Rothenstein. It's a whole host of sources. Some cases, 
they're fees on gasoline. Some cases it may be from general 
revenue. Some cases it may be from permit fees that they have 
imposed on facilities in their States.
    Mr. Gillmor. Yes, because it strikes me that really what's 
happening is where the rubber meets the road which is bad 
analogy, but when you're moving dirt and naturally doing clean 
up, it's the States that are carrying the load here. It's not 
the Federal Government.
    Let me also ask in respect to double walled tanks because 
we're talking about encouraging, requiring, double walled 
tanks. A couple of questions, one, is a double walled tank 
inherently going to be safer or are there some types of single 
walled tanks that might be safer and more effective than some 
types of double walled tanks? Or is that not factual?
    Mr. Rothenstein. I think the principal benefit a double 
walled tank is that with a single wall system you detect a leak 
once it gets out. With a double walled system, there's the leak 
detection in between the two layers, so you'll be able to 
detect it before it gets into the environment.
    Depending on the integrity--so I think that's really the 
principal benefits. The materials could conceivably be the same 
for a single walled or a double walled.
    Mr. Gillmor. In terms of safety, which would, if you had to 
pick one or two, a very, very rigorous inspection or a double 
walled tank, which do you think would be more effective and 
what would be the relative cost of those two approaches?
    Mr. Rothenstein. We haven't actually costed either of 
those. What I can say is we found that from the problem we're 
finding it's problems in both circumstances. Human error 
problems where inspections and training would be very 
beneficial and in some cases just tank problems because the 
equipment is not installed properly or it's just not effective.
    I haven't actually done that comparison, Mr. Chairman, but 
I think we're finding in both cases there could be potential 
problems and benefits from improvements.
    Mr. Gillmor. Okay, let me go back to Mr. Galbraith.
    Mr. Galbraith. I think one of the things about, you could 
inspect, I think a double walled tank less frequently than a 
single wall steel tank and that might be an incentive to make 
some kind of requirement a little more palatable. That is 
certainly from an environmental point of view, I think it would 
be justified.
    Mr. Gillmor. Okay, let me go back to Mr. Rothenstein. The 
GAO's report in some respects was kind of tough on the Agency's 
program and they made four recommendations for administrative 
action. I guess are those four recommendations, have they all 
been implemented, or were there some that for some reason you 
felt it would be better not to implement it? And also, are 
there any other things that EPA has done which may have gone 
beyond the recommendations of GAO?
    Mr. Rothenstein. I think we are trying to implement GAO's 
recommendations. I think one of them was working with the 
States to make sure tanks are upgraded. We're working with 
States to do that to try to make sure all of the tanks have the 
proper equipment in place. We've actually gone beyond that and 
we're trying to make sure that they're not only, the equipment 
is in place, but they're operating them properly.
    I think we are. One of theirs was training needs and we're 
working aggressively to try to develop better training tools 
for inspectors and for owners and operators. Inspection 
frequency, we've been working with States to look for creative 
inspection programs. A number of States have implemented what 
they're calling a third party inspection where they contract 
out with an inspector and it has dramatically and in some cases 
shortened the time. Before the third party inspection it was 
once every 38 years and they've cut it down to once every 3 
years with this new approach.
    So we are, I believe, trying to implement, maybe not as 
successfully as GAO, I think, but we're trying to implement 
each of the recommendations.
    Mr. Gillmor. Thank you, my time has expired. The gentlelady 
from California.
    Ms. Solis. Thank you, yes. I'd like to go back to the issue 
of red tag authority for Cliff Rothenstein. If you could talk 
on your recent visit to Massachusetts and how that experience 
was and how that system is in place?
    Mr. Rothenstein. Massachusetts does have red tag authority 
and it was sort of interesting to see the way that's working. 
What it really is is after an inspection, you see if the tank 
is in compliance or not and what the State does is they work 
with the owner and operator, try to get it into compliance. If 
after some period of time they don't get it back into 
compliance what they do is they put what I guess is literally a 
red tag over the intake valve so fuel can't be delivered. And 
if that red tag is cut, there's penalties in the State. I think 
there was possibly jail time, in fact. What they told me is 
that, I asked them, I said how frequently--how quickly do they 
come back into compliance and they said it was remarkable that 
they were back in compliance within a day or two because it 
meant that they couldn't get fuel delivered and there aren't 
too many gas stations that are with a red tag at any particular 
time, I think, so it seems to be pretty effective in that 
State.
    Ms. Solis. One of the questions that keeps coming up is 
that you weren't able to meet your stated goals for the 
previous year and I'm not very clear on why it is we're not 
meeting those goals. Could you please clarify why there is such 
a lag there? Is there a need for more funding or what's taking 
up the----
    Mr. Rothenstein. I think there seems to be and we're still 
working with the States and we're actively working with them on 
trying to accelerate clean ups, but it seems to be three 
principal issues. One is more MTBE seems to be discovered and 
when that occurs it does take, it's more complicated to clean 
up. It takes more time. It's more difficult to characterize the 
MTBE plume because it behaves differently in the environment 
than just a garden variety petroleum, so that's one issue.
    The other is some States have decided that rather than 
clean up as many unclean sites, they're going back to some of 
those that have been previously cleaned to test for MTBE.
    And then the third principal reason we believe is back 
around the time of 1998 when the deadline hit and all tanks had 
to be upgraded, a lot of owners and operators were removing 
their tanks and at the time of the removal they discovered some 
soil contamination which was relatively quick and easy to clean 
up, so they were able to get a lot more clean ups done more 
quickly. So those three principal reasons, I think are sort of 
explaining this trend.
    Ms. Solis. Well, you still didn't answer my question in 
terms of how do we get the job done? How do we meet the goals 
that you set in place as well?
    Mr. Rothenstein. We've actually got several different ideas 
under way. One is we're trying to change the contracting method 
with clean up contractors. We're going to a performance-based 
clean up contracting tool, rather than paying the contractor 
for their time and materials. And in some States we've learned 
that they're saving about half the cost in getting it done in 
half the time.
    When they're using ground water pump and treat technology, 
we're trying to figure out ways how to tweak the pumping 
technology so that it's more optimum and you can make more 
progress more quickly. We're trying to get companies to bundle 
sites where they have contamination so you can negotiate one 
clean up settlement for multiple sites. So there's a number of 
things that are underway that we're trying to improve the pace 
of clean up.
    Ms. Solis. Given what the witnesses have said earlier, Mr. 
Galbraith, I appreciate your being here and your candidness and 
also the GAO report. It seems to me that from the survey and 
from what is outlined that there is an outcry for more support, 
more Federal funding from the Trust Fund to help provide more 
mitigation. Would you agree with that statement?
    Mr. Stephenson. Well, I've certainly heard that from some 
folks that they think some additional funding would help.
    Ms. Solis. Would that be helpful for the Agency?
    Mr. Rothstein. Well, as I said in response to another 
question, we think that under the President's current budget, 
we are able to clean up sites and get a lot of work done and 
you know, as with anything, there's priorities that have to be 
made.
    Ms. Solis. Mr. Galbraith, what's your opinion on that?
    Mr. Galbraith. Well, it always has struck me as odd that we 
do not pay for prevention out of the Federal LUST Trust Fund 
and I think if we want to get the job done and make sure this 
program is successful, we need to change that and open up some 
of the dollars to the States.
    Ms. Solis. Just to go back to EPA, on the whole issue of 
the GAO report, outlining for more training and inspections, 
what have you done to help increase that?
    Mr. Rothenstein. Inspections?
    Ms. Solis. Well, training, actually, yes.
    Mr. Rothenstein. Training. There's actually a couple of 
things. We have an effort under way to try to--there's a lot of 
training modules that are already out there that inspectors 
have, and what we're trying to do is make it more readily 
accessible using the 21st century technology, the internet, so 
that there's a high turnover rate. That's one of the concerns 
and instead of having everybody convene in a central location, 
trying to use the internet type of technology where everybody 
is trained in a basic level of skill.
    Ms. Solis. But isn't that harder for small businesses that 
may not have the ability to pay for that?
    Mr. Rothenstein. Well, there's two things. One is that's 
for EPA and State inspectors. For owners and operators, what 
we've been working on is a pretty thorough checklist of what is 
required and that would be different in each state. They might 
have to modify some of that, but it's a pretty thorough check 
list of activities that owners and operators would have to 
require and we're working with a few States to try to test that 
with their owners and operators to get them to fill out this 
checklist once a year, go through, make sure they're aware and 
in compliance with the requirements.
    Ms. Solis. Thank you, Mr. Chairman.
    Mr. Gillmor. The gentleman from Idaho.
    Mr. Otter. No questions.
    Mr. Gillmor. We'll go to another round. Let me ask and I 
guess principally this would go to you, Mr. Galbraith, but not 
necessarily. How about some real world examples of unfunded 
mandates in the program from the Federal Government and to what 
degree those are a problem and in that respect, GAO has said 
they're requiring onsite tank inspections would be a good 
public policy decision. What would that do in terms of your 
program in terms of your cost? Would you able to do it? Would 
you have the money to do it? Same, I think, is true in the case 
of operator training. It's a mandate and do you have the money 
to do it and is that something that you should have a 
significant Federal increase?
    Mr. Galbraith. Well, as I mentioned before, the Federal 
LUST Trust Fund does not fund prevention activities and this is 
one of those an ounce of prevention things that really has 
always struck me as a little bit odd. To increase inspections 
to a mandate, I could inspect every station twice a year, if I 
wanted to, but it wouldn't be a very good inspection. So if we 
want to maintain the high quality of inspections and I think 
most States do a very good job, we've got to put more 
inspectors on the ground in order to get--because once you said 
inspector turnover is high. It's see store manager turnover 
that's high. The average lifetime of a see store manager is 6 
months. So if you're only getting out there once every 3 or 4 
years, you're not keeping them on the ball, so to speak.
    With respect to operator training, that is something that 
the State could not implement now with the State funds that are 
available to us. Of course, it would depend on how it was 
structured and to what extent marketers would pay for their own 
training and there are a number of tools out there. I think we 
could implement it in a way that is not burdensome to the tank 
community, but it is not a mandate that we could fund today.
    Mr. Gillmor. Let me ask you, Mr. Rothenstein, does EPA have 
a national data base of all tanks and what criteria do you use 
to evaluate the effectiveness of a particular state's program?
    Mr. Rothenstein. We get certain types of information each 
year reported from the States. The number of releases, the 
number of cleanups initiated, number of cleanups completed and 
number of percent of facilities in compliance with our leak 
detection requirements and our upgrade requirements. We do not, 
however, maintain a national data base of information on tanks. 
Those are maintained by the States, currently.
    Mr. Gillmor. Many tank owners and operators have paid into 
the Trust Fund. In fact, many argue that the money in the fund 
is theirs. What steps does EPA take to meet with tank owners 
and operators to assess their concerns about the current tank 
program or any future changes to be made to it?
    Mr. Rothenstein. A couple of things. First, I think the 
money, it goes into the Federal Trust Fund, so it's for 
implementing the program. It is financed from them. We 
regularly meet with owners and operators and their associations 
to discuss a whole host of issues on implementing the program 
and we take their suggestions. Many of our initiatives, I think 
that we've got in place reflect a lot of what they're trying to 
accomplish.
    Mr. Gillmor. And with respect to the Federal and State 
government owned and operated tanks, how have they fared in 
compliance with the 1998 deadline? And if they haven't fared 
well, what are the obstacles they claim that they have in 
upgrading and remediating?
    Mr. Rothenstein. I think when the 1998 deadline approached, 
we surveyed all the government and Federal facilities. We think 
that the vast majority of them, just like the vast majority of 
privately owned tanks have the equipment. We think that they're 
probably having similar types of operation and maintenance 
issues like everybody else. And we're working with them, just 
like we're trying to work with private PRPs.
    Mr. Gillmor. Okay. Ms. Solis?
    Ms. Solis. Yes, just a quick question again for Mr. 
Rothenstein. Seventy-two million dollars is outlined for your 
LUST clean up project. How many sites are you going to be able 
to handle with that amount of money?
    Mr. Rothenstein. For the $72 million, that money, 81 
percent of that money goes directly to the States, another 4 
percent goes for tribal clean ups and we believe that we will 
be able to clean up upwards of 16,000 to 18,000 completed clean 
ups with that.
    In addition, much of that money, even though some of the 
sites will not be completed, there's work underway and they're 
actively using that money to remove some of the free product 
that may be there and to continue the long term clean up.
    Ms. Solis. What percentage of that is of the total that you 
are effectively targeting?
    Mr. Rothenstein. I flunked math in school.
    Ms. Solis. Out of 143,000 tanks that have to be----
    Mr. Rothenstein. Right, there's about 143,000. We have 
recently set a goal of trying to reduce that backlog, the 
143,000 down to about 75,000 in a 5-year period. So I haven't 
done the calculations for any particular----
    Ms. Solis. We're not doing too well, according to my math, 
and as your testimony, as you stated earlier, that we're 
actually uncovering more.
    Mr. Rothenstein. Right.
    Ms. Solis. With respect to MTBE and all the other storage 
tanks, above storage tanks and all that. So we're really 
seeing, but we're not really getting to the issue here and we 
have a fixed amount of money that seems not to be really 
addressing the need to begin to really make some positive 
changes here. We've had 10 years to try to do this. The money 
is there. It's a fund that's been set aside to do this and it 
seems like there's more obstacles for States and people that 
really do want to do the right thing. At least that's my 
opinion from where I'm sitting and I really think that we need 
more support from the Agency to see that we meet these goals, 
if they're realistic. Because it's abominable. In my State of 
California, we probably have some better rules and regulations 
in place than most States and we still don't know many of those 
storage tanks that are out there. There's no data on that. So I 
have a real problem with that because we have a severe problem 
with our drinking water, as you well know. So I would look 
forward to having more constructive dialog with you on how we 
resolve this issue realistically and I know the Chairman has 
said that he looks forward to working to some type of 
agreements, so I look forward to that.
    Mr. Rothenstein. We certainly appreciate that.
    Mr. Gillmor. The gentlelady yields back. I have a couple of 
questions for Mr. Stephenson.
    Do you perceive any statutory or any administrative 
barriers that we ought to be concerned about, barriers to 
getting faster and more effective and more efficient tank clean 
ups?
    Mr. Stephenson. I guess I'm not understanding the question.
    Mr. Gillmor. Well, is there something out there that's 
either in the law or in the regulations that's preventing tank 
clean up and inspection to take place or I kind of take the 
answer to the question is being probably not because----
    Mr. Stephenson. Nothing other than what we said about 
opening the trust fund up to some preventative measures, like 
inspections and enforcement authority, and the total amount 
that goes to the States for clean up.
    Mr. Gillmor. Okay, but those are all pretty important ones 
if we're able to get them done.
    Many States are finding it difficult to properly and 
comprehensively run their programs. Are there any measures that 
you would suggest to help alleviate the problems? Is there a 
problem of under or unfunded mandates?
    Mr. Stephenson. I think some States don't have enough funds 
to inspect at the minimum EPA requirements of at least once 
every 3 years and you've heard from one State that they could 
use more resources for training inspectors and tank operators 
and the like, so those are the ones we focused on in our study. 
It would seem to be a cost effective, maybe not total solution, 
but at least a start to address the problems.
    You don't have good statistics now. If you don't do the 
inspections, you really don't know the status of all the tanks 
out there, so a lot of States don't--60 percent of the States 
don't even inspect once every 3 years, so how can you base any 
policy decision on that limited of a data base.
    Mr. Gillmor. Okay, well, thank you very much. And if there 
are no further questions, let me also remind you though that we 
did ask earlier and you thought you may be able to come up with 
some figures for us on cost to do the program the way we want 
to do it and in particular, if you can come up with any 
figures, I know they're not going to be totally precise on 
dealing with the remediation problem which I take from the 
testimony is one big unmet need that's out there.
    And I want to thank all of you for your testimony. It's 
been very helpful. We stand adjourned.
    [Whereupon, at 3:14 p.m., the hearing was concluded.]

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