[Federal Register Volume 76, Number 128 (Tuesday, July 5, 2011)]
[Notices]
[Pages 39095-39101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16738]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-UST-2010-0651; FRL-9428-8]


Compatibility of Underground Storage Tank Systems With Biofuel 
Blends

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final guidance.

-----------------------------------------------------------------------

SUMMARY: EPA is issuing final guidance on how owners and operators of 
underground storage tanks (USTs) can demonstrate compliance with the 
Federal compatibility requirement for UST systems storing gasoline 
containing greater than 10 percent ethanol or diesel containing greater 
than 20 percent biodiesel.

ADDRESSES: EPA established a docket for this action under Docket ID No. 
EPA-HQ-UST-2010-0651. All documents and public comments in the document 
are available at http://www.regulations.gov or in hard copy at the UST 
Docket in the EPA Headquarters Library, located at EPA West Building, 
Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding Federal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744. The telephone number for the UST Docket 
is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: Andrea Barbery, Office of Underground 
Storage Tanks, Mail Code 5402P, U.S. Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 
(703) 603-7137; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    This guidance is for owners and operators of underground storage 
tank (UST) systems (hereafter referred to as tank owners) regulated by 
40 CFR Part 280, who intend to store gasoline blended with greater than 
10 percent ethanol or diesel blended with greater than 20 percent 
biodiesel.
    40 CFR Part 280, and therefore this guidance, applies in Indian 
country and in states and territories (hereafter referred to as states) 
that do not have state program approval (SPA). You can view a map of 
SPA states with approved UST programs at: http://www.epa.gov/oust/states/spamap.htm. SPA states may find this guidance relevant and 
useful because they also have a compatibility requirement that is 
similar to the Federal compatibility requirement. You can view state-
specific requirements for SPA states at: http://www.epa.gov/oust/fedlaws/spa_frs.htm.

B. How can I get copies of this document and other related information?

    1. Docket. EPA has established a docket for this action under 
Docket ID No. EPA-HQ-UST-2010-0651. Publicly available docket materials 
are available either electronically through www.regulations.gov or in 
hard copy at the UST Docket in the EPA Docket Center, located at EPA 
West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 
20460. The EPA Docket Center Public Reading Room is open from 8:30 a.m. 
to 4:30 p.m., Monday through Friday, excluding Federal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744. The 
telephone number for the UST Docket is (202) 566-0270.
    2. Electronic Access. EPA established a docket for this action 
under Docket ID No. EPA-HQ-UST-2010-0651. All documents and public 
comments in the document are available at http://www.regulations.gov. 
In addition to being available in the UST docket, an electronic copy of 
this guidance is also available on EPA's Office of Underground Storage 
Tanks Web site at http://www.epa.gov/oust.

II. Background

A. Statutory Authority

    This guidance discusses the Federal UST compatibility requirement 
promulgated under the authority of Subtitle I of the Solid Waste 
Disposal Act (SWDA), as amended. 42 U.S.C. 6991b et seq. You can find 
this requirement, which is referenced and discussed in the guidance, in 
40 CFR 280.32.

B. Underground Storage Tank Compatibility Requirement

    To protect groundwater, a source of drinking water for nearly half 
of all Americans, the U.S. Environmental Protection Agency (EPA) 
regulates UST systems storing petroleum or hazardous substances under 
authority of Subtitle I of the Solid Waste Disposal Act (SWDA), as 
amended. Tanks storing

[[Page 39096]]

gasoline or diesel mixed with ethanol or biodiesel are regulated, 
although pure ethanol and biodiesel are not regulated substances under 
Subtitle I of SWDA. For the purposes of this guidance, EPA considers an 
ethanol-blended fuel to be any amount of ethanol mixed with petroleum 
gasoline, and a biodiesel-blended fuel to be any amount of biodiesel 
mixed with petroleum diesel.
    The Federal UST regulation in 40 CFR part 280 addresses preventing 
and detecting UST system releases; the provision in 40 CFR 280.32 
requires the UST system be compatible with the substance stored. As the 
United States moves toward an increased use of biofuels, including 
ethanol and biodiesel, compliance with the UST compatibility 
requirement becomes even more important, since biofuel blends can 
compromise the integrity of some UST system materials (see following 
sections). Today's Federal Register notice issues guidance on how 
owners and operators of UST systems storing fuels containing greater 
than 10 percent ethanol or greater than 20 percent biodiesel can 
demonstrate compliance with the UST compatibility requirement.
    As of September 30, 2010, there are approximately 600,000 regulated 
USTs at 215,000 facilities nationwide. Based on the size and diversity 
of the regulated community, states are in the best position to 
implement UST program requirements, and are therefore primarily 
responsible for the implementation of the UST program. Subtitle I of 
SWDA, as amended, allows state UST programs approved by EPA to operate 
in lieu of the Federal UST program. In order for EPA to approve a 
state's program, that state's regulations must be at least as stringent 
as the Federal UST regulations.
    An UST system, as defined by 40 CFR 280.12, includes ``* * * an 
underground storage tank, connected underground piping, underground 
ancillary equipment, and containment system, if any.'' Ancillary 
equipment includes ``* * * any devices including, but not limited to, 
such devices as piping, fittings, flanges, valves, and pumps used to 
distribute, meter, or control the flow of regulated substances to and 
from an UST.'' Fuel dispensers are not part of the UST system as 
defined by 40 CFR 280.12. This means the compatibility requirement in 
40 CFR 280.32 does not apply to dispensers.

C. Compatibility of UST Systems With Biofuels

    The Federal UST regulation in 40 CFR 280.32 requires, ``Owners and 
operators must use an UST system made of or lined with materials that 
are compatible with the substance stored in the UST system.'' EPA 
understands that the chemical and physical properties of ethanol and 
biodiesel can be more degrading to certain UST system materials than 
petroleum alone, so it is important to ensure that all UST system 
components in contact with the biofuel blend are materially compatible 
with that fuel. Industry practice has been for tank owners to 
demonstrate compatibility by using equipment that is certified or 
listed by a nationally recognized, independent testing laboratory, such 
as Underwriters Laboratories (UL). However, based on EPA's 
understanding of UL listings, many UST system components in use today, 
with the exception of certain tanks and piping, have not been tested by 
UL or any other nationally recognized, independent testing laboratory 
for compatibility with ethanol blends greater than 10 percent. In 
addition, EPA is not aware of any nationally recognized, independent 
testing laboratory that has performed testing on UST system components 
with biodiesel-blended fuels. Absent certification or listing from a 
nationally recognized, independent testing laboratory, or other 
verification that equipment is compatible with anything beyond 
conventional fuels, the suitability of these components for use with 
ethanol or biodiesel blends comes into question.
1. Compatibility of UST Equipment With Ethanol-Blended Fuel
    Gasoline containing 10 percent or less ethanol has been used in 
parts of the United States for many years. According to the Renewable 
Fuels Association, ethanol is blended into over 90 percent of all 
gasoline sold in the country.\1\ Recently, there has been a movement 
toward higher blends of ethanol, due in part to recent Federal and 
state laws encouraging the increased use of biofuels. Certain tanks and 
piping have been tested and are listed by UL for compatibility with 
higher-level ethanol blends. Many other components of the UST system, 
such as leak detection devices, sealants, and containment sumps, may 
not be listed by UL or another nationally recognized, independent 
testing laboratory for compatibility with these blends.
---------------------------------------------------------------------------

    \1\ Renewable Fuels Association, ``Building Bridges to a More 
Sustainable Future: 2011 Ethanol Industry Outlook.'' http://www.ethanolrfa.org/page/-/2011%20RFA%20Ethanol%20Industry%20Outlook.pdf?nocdn=1.
---------------------------------------------------------------------------

    EPA expects Federal and state laws encouraging increased use of 
biofuels to translate into a greater number of UST systems storing 
ethanol blends, as well as a greater number of UST systems storing 
ethanol blends greater than 10 percent. EPA is aware of material 
compatibility concerns associated with some UST system equipment 
storing higher ethanol blends, such as gasoline blended with up to 85 
percent ethanol (E85), which is an alternative fuel used in flexible 
fuel vehicles. EPA understands that in order to avoid compatibility 
issues with E85, many tank owners who currently store E85 either 
installed all new equipment designed to store high level ethanol blends 
or upgraded certain components to handle the higher ethanol content. 
Because it is common for tank owners to use their tanks for 30 years or 
more, most UST systems currently in use are likely to contain 
components not designed to store ethanol blends greater than 10 
percent. Components of these older systems may not be certified or 
listed by UL or another nationally recognized, independent testing 
laboratory for use with these blends.
    Although very little data pertaining to the compatibility of UST 
equipment with ethanol blends exist, literature suggests that 
intermediate ethanol blends may have the most degrading effect on some 
UST system materials. A recent study performed by U.S. Department of 
Energy's Oak Ridge National Laboratory indicates some elastomeric 
materials are particularly affected by intermediate ethanol blends and 
certain sealants may not be suitable for any ethanol-blended fuels.\2\ 
A 2007 report from UL \3\ evaluated the effect of 85 percent ethanol 
and 25 percent ethanol blends on dispenser components. Results 
indicated some materials used in the manufacture of seals were degraded 
more when exposed to the 25 percent ethanol test fluid than when 
exposed to the 85 percent ethanol test fluid. Other literature suggests 
alcohol fuel blends can be more aggressive toward certain materials 
than independent fuel constituents, with maximum polymer swelling 
observed at approximately 15 percent ethanol by volume.\4\
---------------------------------------------------------------------------

    \2\ Oak Ridge National Laboratory, ``Intermediate Ethanol Blends 
Infrastructure Materials Compatibility Study: Elastomers, Metals, 
and Sealants'' (March 2011). Available in the UST Docket under 
Docket ID No. EPA-HQ-UST-2010-0651.
    \3\ Underwriters Laboratories, Inc., ``Underwriters Laboratories 
Research Program on Material Compatibility and Test Protocols for 
E85 Dispensing Equipment'' (December 2007). Available in the UST 
Docket under Docket ID No. EPA-HQ-UST-2010-0651.
    \4\ Westbrook, P.A., ``Compatibility and Permeability of 
Oxygenated Fuels to Materials in Underground Storage and Dispensing 
Equipment'' (January 1999). Available in the UST Docket under Docket 
ID No. EPA-HQ-UST-2010-0651.

---------------------------------------------------------------------------

[[Page 39097]]

2. Compatibility of UST Equipment With Biodiesel-Blended Fuel
    In addition to ethanol, biodiesel is becoming increasingly 
available across the United States, though its total use is 
significantly less than that of ethanol-blended gasoline. EPA 
understands some tank owners are storing blends of biodiesel and 
petroleum diesel ranging from 2-99 percent biodiesel (B2-B99, 
respectively) in UST systems, with the vast majority of biodiesel tanks 
storing biodiesel at concentrations of 20 percent (B20) or less. 
Although there is little information available regarding the 
compatibility of UST system equipment with biodiesel blends, there are 
known compatibility issues for pure biodiesel (B100). According to the 
U.S. Department of Energy's National Renewable Energy Laboratory (NREL) 
Biodiesel Handling and Use Guide, Fourth Edition,\5\ ``B100 will 
degrade, soften, or seep through some hoses, gaskets, seals, 
elastomers, glues, and plastics with prolonged exposure * * * Nitrile 
rubber compounds, polypropylene, polyvinyl, and Tygon[reg] materials 
are particularly vulnerable to B100.''
---------------------------------------------------------------------------

    \5\ National Renewable Energy Laboratory, ``Biodiesel Handling 
and Use Guide, Fourth Edition.'' (2009). Available in the UST Docket 
under Docket ID No. EPA-HQ-UST-2010-0651.
---------------------------------------------------------------------------

    In contrast, the properties of very low blends of biodiesel (B5 or 
less) are so similar to those of petroleum diesel that ASTM 
International (ASTM) considers conventional diesel that contains up to 
5 percent biodiesel to meet its ``Standard Specification for Diesel 
Fuel Oils''.\6\ For biodiesel blends between 5 and 100 percent, there 
is very little compatibility information; however, NREL's handling and 
use guide concludes that biodiesel blends of B20 or less have less of 
an effect on materials and very low blends of biodiesel (for example, 
B5 and B2) ``* * * have no noticeable effect on materials 
compatibility.'' \7\ In addition, fleet service sites have stored B20 
in USTs for years, and EPA is not aware of compatibility-related 
releases associated with those USTs storing B20. Based on these 
experiences, some states developed UST compatibility policies similar 
to today's final guidance, and they chose a mix of thresholds: B5, B10, 
and B20.\8\
---------------------------------------------------------------------------

    \6\ ASTM Standard D975, 2010c ``Standard Specification for 
Diesel Fuel Oils,'' ASTM International, West Conshohocken, PA, 2010, 
DOI: 10.1520/D0975-10C, www.astm.org.
    \7\ National Renewable Energy Laboratory, ``Biodiesel Handling 
and Use Guide, Fourth Edition.'' (2009). Available in the UST Docket 
under Docket ID No. EPA-HQ-UST-2010-0651.
    \8\ Wisconsin, Colorado, and South Carolina are examples of 
states with compatibility policies that address biodiesel. These 
documents are available in the UST Docket under Docket ID No. EPA-
HQ-UST-2010-0651.
---------------------------------------------------------------------------

D. EPA E15 Waivers

    In March 2009, EPA received a Clean Air Act (CAA) waiver 
application to increase the allowable ethanol content of gasoline-
ethanol blended fuel from 10 percent ethanol to 15 percent ethanol.\9\ 
In October 2010 and January 2011, EPA conditionally granted partial 
waivers that allow gasoline-ethanol blends containing greater than 10 
percent ethanol up to 15 percent ethanol (E15) to be introduced into 
commerce for use in 2001 and newer model year light-duty motor vehicles 
(which include passenger cars, light-duty trucks, and medium-duty 
passenger vehicles such as some sport utility vehicles).\10\ If other 
state, Federal, and industry practices also support the introduction of 
E15 into commerce, EPA anticipates some tank owners may choose to store 
higher percentages of ethanol in their UST systems when these fuels 
become available.
---------------------------------------------------------------------------

    \9\ See 74 FR 18228 (April 21, 2009).
    \10\ See 75 FR 68093 (November 4, 2010), and 76 FR 4662 (January 
26, 2011).
---------------------------------------------------------------------------

    Please note that this action under the CAA has no legal bearing on 
the requirement for tank owners to comply with all applicable UST 
regulations, including the UST compatibility requirement in 40 CFR 
280.32. Under the existing Federal UST regulation, tank owners must 
meet the compatibility requirement for UST systems to ensure safe 
storage of any regulated substance, including higher ethanol and 
biodiesel blends.

E. November 17, 2010 Federal Register Notice and Request for Comments

    On November 17, 2010, EPA published draft guidance in the Federal 
Register to solicit public comments on proposed options to help tank 
owners in complying with the Federal compatibility requirement for UST 
systems storing gasoline containing greater than 10 percent ethanol and 
diesel containing a to-be-determined amount of biodiesel.\11\ EPA 
solicited comments on a number of issues, including: UST components 
that may be affected by biofuel blends; methods to demonstrate 
compatibility; criteria for equipment manufacturer approval as a 
compatibility method; applicability to biodiesel blends; ability to 
demonstrate compatibility using the proposed guidance; and other 
options that would sufficiently protect human health and the 
environment. The 30 day public comment period ended December 17, 2010. 
In response to the notice and proposed guidance, EPA received 27 
comments from states, petroleum marketers, tank owners, biofuel groups, 
equipment manufacturers, and others. These comments are available in 
EPA's UST Docket under Docket ID No. EPA-HQ-UST-2010-0651 and are 
summarized and addressed in the following section.
---------------------------------------------------------------------------

    \11\ See 75 FR 70241 (November 17, 2010).
---------------------------------------------------------------------------

III. Response to Public Comments

A. UST Components That May Be Affected by Biofuel Blends

    In the Federal Register notice, EPA asked for comments on the 
proposed list of UST system components that may be affected by biofuel 
blends. Most commenters generally supported the proposed list, though 
some suggested additions or deletions. Many commenters suggested the 
list should include components such as shear valves, fill and riser 
caps, and vapor recovery equipment. EPA's intent is to identify all 
equipment that falls under the definition of UST system in 40 CFR 
280.12, which, if incompatible, would lead to a liquid release to the 
environment. Therefore, EPA is adding the product shear valve and fill 
and riser caps to the list because: if a product shear valve is 
incompatible, product may be released if the dispenser is dislodged; if 
a riser cap fails, the overfill flow restrictor may no longer alert the 
transfer operator prior to overfilling a tank. EPA is not including 
vapor recovery equipment because these components do not routinely 
contain liquid product. Incompatibility of vapor recovery equipment 
would be less likely to result in a liquid release to the environment.
    Based on commenters' input, EPA is removing from the list pipe 
adhesives and glues, because these components are typically used as 
part of the fiberglass piping and their compatibility is linked to that 
piping. That is, an UST contractor installing a new UST system does not 
have discretion over which pipe adhesives to use in the field. The pipe 
manufacturer provides these adhesives, also commonly referred to as 
glues, along with the piping as a complete set. Because these are not 
discretionary components, tank installers have not historically 
documented the type of pipe adhesive used during installation. As a 
result, a tank owner would have difficulty finding records about the 
type of pipe adhesives used in the piping system.

[[Page 39098]]

According to manufacturers, piping and its adhesives have been 
compatible with ethanol blends for many years before UL included 
ethanol blends as a test fluid. Therefore, pipe adhesives and glues are 
covered under the general category of piping.
    Many commenters strongly recommended EPA include dispensers on the 
list; however, EPA does not regulate aboveground equipment, such as 
dispensers, under 40 CFR Part 280. Because EPA understands this 
distinction might not be obvious to tank owners and there are known 
material compatibility issues with dispenser components,\12\ EPA is 
recommending tank owners determine if other Federal, state, or local 
requirements apply to their storing and dispensing equipment. For 
example, the U.S. Occupational Safety and Health Administration has 
listing requirements that apply to dispensing equipment,\13\ and many 
state and local regulatory agencies adopted codes of practice such as 
National Fire Prevention Association codes and the International Fire 
Code. For information on which dispensers are listed for higher blends 
of ethanol, please see Appendix F of the Department of Energy's 
Handbook for Handling, Storing, and Dispensing E85.\14\
---------------------------------------------------------------------------

    \12\ Boyce, K.; Chapin, J.T. (2010). ``Dispensing Equipment 
Testing with Mid-Level Ethanol/Gasoline Test Fluid: Summary 
Report.'' NREL Report No. SR-7A20-49187. Available in the UST Docket 
under Docket ID No. EPA-HQ-UST-2010-0651.
    \13\ 29 CFR 1910.106.
    \14\ U.S. Department of Energy, ``Handbook for Handling, 
Storing, and Dispensing E85.'' (2010). Available in the UST Docket 
under Docket ID No. EPA-HQ-UST-2010-0651.
---------------------------------------------------------------------------

    EPA is making one additional change by including further 
clarification regarding newly installed equipment versus equipment that 
has undergone maintenance where one or more components is replaced. For 
newly installed equipment comprised of multiple individual components 
and assembled by the manufacturer, some manufacturers provide a 
compatibility certification for the equipment as a whole. For example, 
a manufacturer may certify the entire submersible turbine pump as being 
compatible. The submersible turbine pump certification would include 
all components (gaskets, sealants, bushings, etc.) of the equipment 
assembled by the manufacturer. Therefore, an owner may obtain one 
certification for newly installed manufacturer-assembled equipment, as 
long as the manufacturer certifies the entire piece of equipment as 
compatible. However, over the lifetime of a typical UST system, 
equipment is likely to require maintenance, which may involve replacing 
parts like gaskets, sealants, and bushings. It is important for tank 
owners to use compatible replacement parts, especially since these 
components are sometimes constructed of materials that are not 
compatible with biofuel blends. Therefore, equipment components (such 
as gaskets, sealants, bushings, etc.) replaced after the equipment was 
originally installed will not be covered by the original manufacturer's 
approval.

B. Methods To Demonstrate Compatibility and Criteria for Manufacturer 
Certification

    In the proposed guidance, EPA asked for comment on the 
appropriateness and feasibility of using these methods to demonstrate 
compatibility:
     Certification or listing by an independent test 
laboratory;
     Equipment manufacturer approval; or
     Another method determined by the implementing agency to 
sufficiently protect human health and the environment. EPA will work 
with states as they evaluate other acceptable methods.
    Many commenters, including states, were concerned with the 
manufacturer approval option as a way to demonstrate UST system 
compatibility. Some thought this method would be better supported if 
manufacturers submitted compatibility test data as qualitative proof of 
compatibility. We acknowledge that the element of testing may make 
commenters more comfortable with allowing manufacturer's self-
certification. However, absent nationally recognized compatibility test 
protocols for each component and general agreement on what constitutes 
acceptable test results, regulatory agencies are not in a position to 
assess the sufficiency of the tests.
    After additional discussions with states and industry, EPA 
concluded that equipment manufacturers are uniquely suited to attest to 
the compatibility of their products and have an incentive to make 
truthful claims regarding use of their equipment with biofuel blends. 
Further, the manufacturer certification option is critical for 
components that do not have a certification or listing by a nationally 
recognized, independent testing laboratory. For example, biodiesel 
blends are not addressed by any nationally recognized, independent 
testing laboratory standards for UST equipment.\15\ Therefore, EPA is 
keeping the manufacturer certification option in today's final 
guidance.
---------------------------------------------------------------------------

    \15\ UL does not require special investigation for products 
intended to use biodiesel blends up to B5 that meets ASTM D975 fuel 
quality specifications. Available at: http://www.ul.com/global/eng/pages/offerings/industries/appliancesandhvac/gasoilsolidfuel/release/.
---------------------------------------------------------------------------

    Other commenters warned that tank owners might obtain product 
brochures or other information with a general claim such as, biofuel-
compatible, which may pertain to some biofuel blends but not others. To 
address this concern, EPA is including an additional element under the 
manufacturer's certification option to specify the range of biofuel 
blends the component is compatible with. This will better ensure 
components are compatible with the fuel blend stored.
    Some commenters recommended EPA allow a Professional Engineer 
(P.E.) to make a compatibility determination. Although using P.E.s to 
determine compatibility is an option in some states, EPA understands 
tank owners are not using this option. There are numerous types of 
P.E.s, any of which is not likely to cover all aspects of materials 
science and UST equipment compatibility. If a tank owner is not able to 
provide information about the type of equipment at the facility, a P.E. 
would not be able to make a well informed decision regarding the 
compatibility of below-ground equipment with any fuel. Therefore, for 
the purposes of the Federal UST program as implemented under 40 CFR 
parts 280 and 281, EPA does not believe blanket acceptance of P.E. 
certification is an appropriate approach.
    Similarly, some commenters recommended EPA allow tank owners to use 
other credible third-party determinations, such as a white paper on 
compatibility, to demonstrate compatibility. Without reference to an 
existing model of this idea, EPA does not think it is appropriate to 
speculate as to what criteria a white paper should meet or what other 
third-party groups would be credible. EPA's options in today's guidance 
allow flexibility for implementing agencies to adopt other methods if, 
in the future, a white paper or other tool is produced and implementing 
agencies determine it is a credible and appropriate demonstration of 
compatibility.
    Some commenters suggested that EPA allow the National Work Group on 
Leak Detection Evaluations (NWGLDE) to act as an independent third 
party, since NWGLDE is involved in evaluating leak detection equipment. 
However, NWGLDE specifically does not make claims regarding material 
compatibility of leak detection equipment with biofuels, and it is 
unlikely to do so in the future. Therefore in today's final

[[Page 39099]]

guidance, EPA is not including use of NWGLDE as an option to 
demonstrate compatibility.
    Some commenters did not think it is appropriate to allow 
implementing agencies to use other options because this would lead to a 
patchwork of compatibility standards across the country. EPA 
understands the difficulty for tank owners to keep up with UST 
requirements in 56 states. However, states' discretion is a hallmark of 
the UST program. Currently, 38 states have UST programs approved by EPA 
to operate in lieu of the Federal UST program. These 38 states with 
State Program Approval (SPA) may or may not rely on the recommendations 
in this guidance. EPA will continue to allow other options, as long as 
those options sufficiently protect human health and the environment.
    Other commenters expressed concern about the proposed methods 
because they do not allow for some equipment to be used. Commenters 
said there could be an instance where a certification or listing from a 
nationally recognized, independent testing laboratory was not available 
at the time of manufacture, and the manufacturer is no longer in 
business or is unwilling to certify the component is compatible. EPA 
does not see a way to accommodate this situation while minimizing risk 
to the environment. If tank owners cannot demonstrate compatibility, 
they would not be able to store ethanol blends greater than 10 percent 
or biodiesel blends greater than 20 percent in the UST system.
    Finally, some commenters suggested adding ``nationally recognized'' 
to ``independent test laboratory.'' EPA acknowledges that some states, 
other Federal agencies, and organizations refer to UL and other third 
party testing labs as ``nationally recognized testing laboratories 
(NRTLs).'' To maintain consistency with 40 CFR part 280, today's 
guidance will use the term ``nationally recognized, independent testing 
laboratory.'' EPA considers ``nationally recognized, independent 
testing laboratories'' to be essentially the same as NRTLs.

C. Biodiesel Blends

    In the November 17, 2010 Federal Register notice, EPA asked 
commenters if we should include biodiesel blends in the guidance. The 
majority of commenters agreed that USTs storing biodiesel blends should 
be subject to this guidance. EPA also requested feedback on what blend 
would be appropriate as a cutoff--that is, up to what blend level is 
the compatibility of biodiesel with UST equipment similar to the 
compatibility of petroleum diesel with UST equipment, and at what blend 
level do the known incompatibilities and the unknown risks necessitate 
further assurance of compatibility? Five percent biodiesel (B5), which 
is most commonly sold at retail facilities, and B20, which is more 
commonly used for vehicle fleets, were the two main options. Of those 
commenters who had an opinion on what biodiesel blend would be a 
reasonable cutoff, the majority chose B20, based largely on field 
experience and lack of compatibility issues with this blend. Some cited 
a report authored by Ken Wilcox \16\ on leak detection devices used in 
biodiesel applications, though EPA notes this document addresses leak 
detection functionality, but not compatibility. More specific to 
compatibility, the aforementioned Biodiesel Handling and Use Guide \17\ 
indicates that UST system materials should not experience compatibility 
issues with B20, so long as the biodiesel component meets fuel quality 
requirements in ASTM D6751.
---------------------------------------------------------------------------

    \16\ Ken Wilcox Associates, Inc., ``Effects of Biodiesel Blends 
On Leak Detection for Underground Storage Tanks and Lines,'' August 
18, 2010. Available in the UST Docket under Docket ID No. EPA-HQ-
UST-2010-0651.
    \17\ National Renewable Energy Laboratory, ``Biodiesel Handling 
and Use Guide, Fourth Edition.'' (2009). Available in the UST Docket 
under Docket ID No. EPA-HQ-UST-2010-0651.
---------------------------------------------------------------------------

    Some commenters recommended EPA set the threshold at less than 20 
percent biodiesel, since compatibility is more certain for biodiesel 
blends up to B5. For example, UL issued a statement indicating that 
biodiesel blends up to B5 meeting the fuel quality specification, ASTM 
D975, will not require special investigation by UL. Similarly, the 
Federal Trade Commission does not require B5 that meets ASTM D975 to be 
labeled, making it indistinguishable from conventional diesel fuel. 
Although this certainty does not exist for biodiesel blends between 5-
20 percent, many states have experience with USTs storing biodiesel 
blends up to B20, and are not aware of any compatibility issues 
associated with those blends. Further, many fleet service sites, 
including state and local governments, use B20 to meet Federally 
mandated alternative fuel vehicle requirements and have experienced no 
compatibility problems with their UST equipment at this blend level. 
EPA is setting the threshold in today's final guidance at B20 because: 
The properties of B5 are so similar to petroleum diesel; field 
experience with B20 has been generally positive; little information 
exists on compatibility of UST equipment with biodiesel blends between 
20-99 percent; and there are known compatibility issues with pure 
biodiesel. Because nearly all biodiesel blends used today are B20 or 
less, this guidance in effect applies to a small number of regulated 
USTs storing very high blends of biodiesel. EPA intends to investigate 
biodiesel compatibility further in our proposed UST regulation, which 
we expect to release for public comment in summer 2011. If you have 
additional data on biodiesel compatibility, please provide it during 
that public comment period.

D. Ability To Demonstrate Compatibility

    While commenters generally agreed with the options for 
demonstrating compatibility, they also emphasized that, largely due to 
a lack of records, a majority of tank owners would not be able to 
demonstrate compatibility of their existing UST systems with any new 
fuel. Despite this, commenters did not generally support or suggest 
using equipment that was not demonstrated to be compatible. EPA 
acknowledges the challenge of maintaining records for UST system 
components, as well as the burden associated with tracking down third 
party listings or manufacturer certifications for each component. 
However, the Federal UST compatibility requirement has been in place 
for over twenty years, and tank owners decide whether to store higher 
percentages of biofuels. Tank owners who intend to store ethanol blends 
greater than 10 percent ethanol or biodiesel blends greater than 20 
percent biodiesel will want to consider UST system compatibility as 
part of their overall business decisions. EPA believes most major 
components (tanks and pipes) are compatible with biofuel blends, and 
tank owners often have records of these components. It will be more 
difficult to obtain records for the smaller components, such as 
fittings, sealants, and boots, and therefore it will be more difficult 
to determine compatibility for these components. Because these smaller 
components are usually found in sumps, they can be accessed without 
excavation and changed out at a cost substantially less than the cost 
of an entire UST system replacement.
    Many commenters felt the burden of demonstrating compatibility for 
individual UST components should not be on tank owners but on equipment 
manufacturers. The Federal UST regulation does not apply to UST 
equipment manufacturers; it only applies to UST system owners and 
operators. Today's guidance does not preclude a tank owner from 
obtaining assistance to make a compatibility

[[Page 39100]]

determination. In some states, a tank owner is assisted by a state-
certified UST installer to identify the components in question and 
determine whether or not they are certified or listed by a nationally 
recognized, independent testing laboratory or otherwise approved by the 
equipment manufacturer for use with the intended fuel blend.

E. Other Comments

1. Functionality of UST Equipment
    Although the guidance addresses how tank owners can comply with the 
UST regulation compatibility requirement for ethanol blends greater 
than 10 percent and biodiesel blends greater than 20 percent, many 
commenters asked EPA to expand the scope of the proposed guidance to 
address both compatibility and functionality with regard to leak 
detection equipment. EPA acknowledges the operability of some UST 
equipment may also be impacted by new fuels. In a separate effort, we 
are working to assess the functionality of leak detection equipment 
with ethanol blends. EPA expects that effort will provide information 
about what kinds of leak detection devices are suitable for use in 
ethanol blends. Also, some UST stakeholders are currently investigating 
functionality of other UST system components. EPA may be in a better 
position to issue guidance on UST equipment functionality after 
research and testing are complete.
2. Additional Tools To Assist Tank Owners
    Some commenters suggested the most time-consuming portion of 
demonstrating compatibility is obtaining the documentation, and a tool 
to make the documentation more readily available would be helpful. In a 
separate effort, EPA will work with states and other stakeholders to 
consider useful resources to facilitate demonstrating compatibility.
3. Alternatives to Compatibility
    In the proposed Federal Register notice, EPA asked if there were 
alternative methods tank owners could rely on or activities they could 
perform that would sufficiently protect human health and the 
environment. Commenters' suggestions included: conducting more frequent 
inspections and monitoring, performing a risk-based assessment, and 
using a secondarily contained UST system with interstitial monitoring. 
Because the regulatory requirement for compatibility is already in 
place and these alternatives would require a regulatory change to 
implement, EPA intends to consider these and other alternatives as part 
of a proposed UST regulation revision.

IV. Final Guidance

Guidance on the Compatibility of Underground Storage Tank Systems With 
Ethanol Blends Greater Than 10 Percent and Biodiesel Blends Greater 
Than 20 Percent

    This guidance discusses how owners and operators of underground 
storage tanks (USTs) regulated under 40 CFR part 280 can demonstrate 
compliance with EPA's compatibility requirement (40 CFR 280.32) when 
storing gasoline containing greater than 10 percent ethanol or diesel 
containing greater than 20 percent biodiesel. In 1988, EPA promulgated 
the compatibility requirement (and all other UST requirements) under 
the authority of Subtitle I of the Solid Waste Disposal Act, as 
amended.
    This guidance applies in Indian country and in states that do not 
have state program approval (SPA). Because SPA states must have a 
compatibility requirement that is similar to the Federal compatibility 
requirement, SPA states may find this guidance relevant and useful to 
them as well.
    The discussion in this document is intended solely as guidance. The 
statutory provisions and EPA regulations described in this document 
contain legally binding requirements. This document is not a regulation 
itself, nor does not it change or substitute for those provisions and 
regulations. Thus, it does not impose legally binding requirements on 
EPA, states, or the regulated community.
    In March 2009, EPA received a Clean Air Act (CAA) waiver 
application to increase the allowable ethanol content of a gasoline-
ethanol blended fuel from 10 percent ethanol to 15 percent ethanol.\18\ 
In October 2010 and January 2011, EPA conditionally granted partial 
waivers, allowing gasoline-ethanol blends that contain greater than 10 
percent ethanol up to 15 percent ethanol (E15) to be introduced into 
commerce for use in 2001 and newer model year light-duty motor vehicles 
(which include passenger cars, light-duty trucks, and medium-duty 
passenger vehicles such as some sport utility vehicles).\19\ If other 
state, Federal, and industry practices also support this introduction, 
E15 may become available in the marketplace. As a result, EPA 
anticipates that some UST system owners and operators may choose to 
store higher percentages of ethanol in their UST systems.
---------------------------------------------------------------------------

    \18\ See 74 FR 18228 (April 21, 2009).
    \19\ See 75 FR 68093 (November 4, 2010), and 76 FR 4662 (January 
26, 2011).
---------------------------------------------------------------------------

    Please note that EPA's partial waiver under the CAA has no legal 
bearing on an UST owner or operator's requirement to comply with all 
applicable Federal UST regulations, including the UST compatibility 
requirement in 40 CFR 280.32. Specifically, in order to ensure the safe 
storage of higher ethanol and biodiesel blends, or any other regulated 
substance, owners and operators must meet the existing compatibility 
requirement for UST systems.
    The UST compatibility requirement in 40 CFR 280.32 states, ``Owners 
and operators must use an UST system made of or lined with materials 
that are compatible with the substance stored in the UST system.'' 
Because the chemical and physical properties of ethanol and biodiesel 
blends may make them more aggressive to certain UST system materials 
than petroleum, it is important that all UST system components in 
contact with ethanol or biodiesel blends are materially compatible with 
that fuel.

UST System Components That May Be Affected by Biofuel Blends

    To be in compliance with 40 CFR 280.32, owners and operators of UST 
systems storing ethanol-blended fuels greater than 10 percent ethanol 
or biodiesel-blended fuels greater than 20 percent biodiesel must use 
compatible equipment. EPA considers the following parts of the UST 
system to be critical for demonstrating compatibility:
     Tank or internal tank lining
     Piping
     Line leak detector
     Flexible connectors
     Drop tube
     Spill and overfill prevention equipment
     Submersible turbine pump and components
     Sealants (including pipe dope and thread sealant), 
fittings, gaskets, o-rings, bushings, couplings, and boots
     Containment sumps (including submersible turbine sumps and 
under dispenser containment)
     Release detection floats, sensors, and probes
     Fill and riser caps
     Product shear valve
    For newly installed equipment comprised of multiple individual 
components such as submersible turbine pump assemblies, UST system 
owners and operators may obtain a certification from the equipment 
manufacturer documenting compatibility for the entire assembly. If 
equipment requires maintenance and components of that equipment (for 
example, sealants and gaskets) are

[[Page 39101]]

subsequently added or replaced, manufacturer approval of the overall 
component is not sufficient to demonstrate compatibility.

Options for Meeting the Compatibility Requirement

    Acceptable methods for owners and operators of UST systems storing 
ethanol-blended fuels greater than 10 percent ethanol or biodiesel-
blended fuels greater than 20 percent biodiesel to demonstrate 
compatibility under 40 CFR 280.32 are:
     Use components that are certified or listed by a 
nationally recognized, independent testing laboratory (for example, 
Underwriters Laboratories) for use with the fuel stored;
     Use components approved by the manufacturer to be 
compatible with the fuel stored. EPA considers acceptable forms of 
manufacturer approvals to:
    [cir] Be in writing;
    [cir] Indicate an affirmative statement of compatibility;
    [cir] Specify the range of biofuel blends the component is 
compatible with; and
    [cir] Be from the equipment manufacturer, not another entity (such 
as the installer or distributor); or
     Use another method determined by the implementing agency 
to sufficiently protect human health and the environment. EPA will work 
with states as they evaluate other acceptable methods.
    Currently, a note in 40 CFR 280.32 allows owners and operators to 
use the American Petroleum Institute's (API) Recommended Practice 1626, 
an industry code of practice, to meet the compatibility requirement for 
ethanol-blended fuels. The original version of API 1626 (1st ed. 1985, 
reaffirmed in 2000) applies to up to 10 percent ethanol blended with 
gasoline and is not applicable to meet the compatibility requirement 
for ethanol blends greater than 10 percent. In August 2010, API 
published a second edition of API 1626. The second edition addresses 
ethanol blends greater than 10 percent and may be used to demonstrate 
compatibility for UST systems storing ethanol blends.
    If the UST owner and operator is not able to demonstrate that the 
UST system is made of materials that are compatible with the ethanol 
blend or biodiesel blend stored, according to 40 CFR 280.32, the UST 
owner and operator may not use the system to store those fuels.
    State UST program regulations may be more stringent than the 
Federal UST regulations. In addition to state and Federal UST 
requirements, UST system owners and operators may be subject to other 
Federal, state, or local regulatory requirements (for example, U.S. 
Occupational Safety and Health Administration, National Fire Prevention 
Association, and International Fire Code). UST system owners and 
operators should check with their state and local agencies to determine 
other requirements.
    If you have questions about this guidance, please contact Andrea 
Barbery at [email protected] or (703) 603-7137.

    Dated: June 17, 2011.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 2011-16738 Filed 7-1-11; 8:45 am]
BILLING CODE 6560-50-P