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Committee Reports

107th Congress (2001-2002)

Senate Report 107-316

Senate Report 107-316 1 of 1

This Report: To Accompany S.1850     Printer Friendly: HTML  |  PDF




{link: 'http://www.congress.gov:80/cgi-bin/cpquery?',title: 'THOMAS - Committee Report - Senate Report 107-316' }

THE UNDERGROUND STORAGE TANK COMPLIANCE ACT OF 2002

19-010

Calendar No. 732

107TH CONGRESS

Report

SENATE

2d Session

107-316

--THE UNDERGROUND STORAGE TANK COMPLIANCE ACT OF 2002

October 16, 2002- Ordered to be printed

Mr. JEFFORDS, from the Committee on Environment and Public Works, submitted the following

REPORT

[to accompany S. 1850]

[Including cost estimate of the Congressional Budget Office]

The Committee on Environment and Public Works, to which was referred a bill (S. 1850) to amend the Solid Waste Disposal Act to bring underground storage tanks into compliance with subtitle I of that Act, to promote cleanup of leaking underground storage tanks, to provide sufficient resources for such compliance and cleanup, and for other purposes, having considered the same reports favorably thereon with an amendment and recommends that the bill, as amended, do pass.

GENERAL STATEMENT AND BACKGROUND

The Environmental Protection Agency (EPA) estimates that there are currently over 909,000 active underground storage tanks (USTs) containing petroleum products. Many of these tanks have leaks, causing potential harm to human health and the environment.

In 1984, Congress enacted, as Subtitle I of the Solid Waste Disposal Act, a comprehensive program to address the problem of leaking underground storage tanks. The program required EPA to develop leak detection and prevention standards for underground storage tanks (USTs), and authorized the Agency to compel tank owners and operators to take corrective action to clean up leaking tanks and comply with standards for USTs, or to close them. States have largely taken the lead in implementing and enforcing the program requirements, including corrective action requirements.

States receive Federal funds from the LUST Trust Fund, which is paid for by a one-tenth of one cent tax on all petroleum products, to carry out the requirements. This tax generates approximately $170 million per year, and the interest on the principal in the fund generates approximately $70 million annually (roughly the amount of annual appropriations from the LUST Trust Fund). Amounts are appropriated each year from the Trust Fund for the States and EPA to implement and enforce the UST corrective action requirements; to conduct cleanups in certain limited situations where there is no financially viable responsible party or where a responsible party fails to undertake the appropriate corrective action; to take corrective action in cases of emergency; and to bring cost recovery actions against parties to seek reimbursement of costs expended from the Fund to clean up sites. The balance of the Trust Fund is approximately $1.3 billion. The annual appropriation from the LUST Trust Fund for fiscal year 2002 is expected to be approximately $72 million. Congress has appropriated approximately $10 million per year from general revenues for State implementation of leak prevention and detection programs. In addition to the Federal LUST Trust Fund, many States have also established funds, capitalized through State gas taxes, fees, and other mechanisms, to pay for cleanups and to provide assistance to tank owners in complying with other requirements. States spend approximately $1 billion per year from their Trust Funds. However, in recent years, the claims against those funds have risen dramatically.

While over a million leaking USTs have been closed under this program, EPA estimates that there are currently over 740,000 active USTs containing petroleum products. Some of these tanks have leaks, causing potential harm to human health and the environment. A number of recent, high profile contamination cases have highlighted the problem. Methyl tertiary butyl ether (MTBE) has been detected at thousands of leaking UST sites. In some cases, drinking water wells have been closed due to these releases of MTBE. According to EPA, States have reported more than 400,000 confirmed releases from USTs. Cleanups have been initiated for approximately 357,000 releases and almost 242,000 cleanups have been completed. In spite of this progress, many thousands of cleanups remain to be completed. EPA, States, and the private sector have suggested that lack of resources, both for cleanup and for inspections and enforcement, have limited efforts to fully address MTBE contamination and leaking USTs.

S. 1850 strengthens the existing statutory framework for underground storage tanks. The bill amends Subtitle I to require that EPA distribute at least 80 percent of its annual appropriation from the Leaking Underground Storage Tank Trust Fund to States under cooperative agreements. The bill also gives States greater flexibility to use the funds for enforcement of the program, administrative costs, and corrective action and compensation programs. Finally, the bill affirms that EPA may use funds from the Trust Fund for enforcement of the UST program.

OBJECTIVES OF THE LEGISLATION

On May 4, 2001, the U.S. General Accounting Office (GAO) released a report entitled `Environmental Protection: Improved Inspections and Enforcement Would Better Ensure the Safety of Underground Storage Tanks.' This report found that 89 percent of the total number of regulated tanks, or 616,865 tanks, received federally required equipment upgrades by the end of fiscal year 2000. In addition, GAO estimated that about 29 percent of the regulated tanks, or 201,001 tanks, were not being operated or maintained properly, increasing the risk of soil and groundwater contamination.

S. 1850 was crafted to improve the compliance of underground storage tanks nationwide. The legislation provides resources for the cleanup of tanks that have already leaked, but more importantly provides increased emphasis on leaked prevention so communities can be spared from the problems and expense that are often associated with leaking tanks, especially when drinking water supplies become contaminated.

This legislation improves the current law by: requiring that all regulated underground storage tanks undergo onsite inspections every 2 years; requiring EPA to issue guidance on how to train operators of USTs; requiring States to develop operator training strategies; providing enforcement flexibility for UST owners that have operator training programs in place; providing EPA authority to prohibit fuel delivery to tanks that are not in compliance; requiring States to prepare implementation reports for bringing tanks owned by State and local governments into compliance; requiring Federal agencies to prepare implementation reports for bringing federally owned tanks into compliance; increasing funding for UST programs.

SECTION-BY-SECTION ANALYSIS

Section 1. Short Title

Sets forth the short tile of the bill as the `Underground Storage Tank Compliance Act of 2002.'

Sec. 2. Leaking Underground Storage Tanks

SUMMARY

Section 2 gives States greater flexibility to implement the underground storage tank program. First, the new subsection (f)(1) provides that EPA must distribute to the States at least 80 percent of the funds appropriated each year from the Leaking Underground Storage Tank Trust Fund. The States may use these funds to pay for the reasonable costs of: (1) actions to carry out and enforce corrective actions; (2) necessary administrative costs of State assurance funds; (3) enforcement of a State program; (4) State or local corrective actions; and (5) corrective action or compensation programs under a State program if there is no financially viable owner or operator of an UST. This section also provides for the allocation of funds to States by the Administrator.

DISCUSSION

This section adds a new subsection (f) to Section 9004 of the Solid Waste Disposal Act to guarantee that States will receive a minimum of 80 percent of the annual appropriation from the LUST Trust Fund. This percentage is intended to be a floor; the actual percentage distributed to the States in any given year may exceed that level. Historically, EPA has distributed varying amounts to the States, ranging from as little as 81 percent of the annual appropriation to as much as 89 percent. The average distribution has been in the range of 85 percent. The committee expects EPA to distribute more than the statutory minimum of 80 percent of the appropriated LUST funds annually if the Agency's annual budgetary needs, including needs for implementation of the LUST program with respect to tanks within Tribal jurisdiction, are less than 20 percent of appropriated funds.

New subsection (f)(1)(A)(iii) authorizes a State to make the determination of whether an owner or operator of an underground storage tank is financially viable (i.e., whether the owner or operator has sufficient resources to pay for a corrective action without significantly impairing the ability of the owner or operator to continue in business), in accordance with guidelines to be developed by EPA and the States. In making the determination of whether an owner or operator has the ability to pay, the State must take into consideration any funding received by the tank owner from the State.

In addition to expanding the uses of the Trust Fund, this section reaffirms that States may not use these funds to provide financial assistance to owners and operators of tanks to comply with existing regulations governing USTs, including the requirements for upgrading of existing tanks.

While the bill allows for several new uses of the LUST Trust Fund, the legislation does not prioritize among uses. Funding for existing uses (including enforcement of corrective action requirements, corrective actions taken by State and local governments at responsible party sites, and cost recovery actions) most effectively serves the needs for protection of human health and the environment. The committee intends that the distribution of Federal funding recognize the importance of enforcement and corrective action requirements to the protection of human health and the environment.

Subsection (f)(2) sets forth the process to be used to allocate funds among States. In general, EPA is directed to distribute funds in accordance with the existing allocation process utilized by the Agency. The process may be revised only after consulting with the States. Any revisions must take into consideration a number of factors, including: the total tax revenue contributed to the Trust Fund from all sources within the State; the number of confirmed releases from federally regulated USTs; the number of federally regulated USTs in a State; groundwater use in a State; program performance in a State; the financial needs of a State; and the ability of a State to use its allocated funds in any given year. According to EPA, the current allocation process takes into consideration these factors. The committee intends that any revisions to the current allocation process should maintain an inclusive process for EPA consultation with States to ensure that EPA obtains necessary information from States.

Subsection (f)(3) requires distributions from the Trust Fund be made directly to the State agency and distributed in accordance with the cooperative agreement with EPA. Subsection (f)(4) prohibits the use of funds from the Trust Fund distributed under subsection (f)(1)(A)(iii) from being used for cost recovery by the Administrator under section 9006(h)(6).

Sec. 3. Inspection of Underground Storage Tanks

SUMMARY

Section 3 directs the Administrator, or a State with an approved program, to require that all USTs regulated under Subtitle I undergo onsite inspections every 2 years. A June 2000 report released by EPA entitled `Report to Congress on a Compliance Plan for the Underground Storage Tank Program' estimates that the cost of this bi-annual inspection requirements will be $35 million for each of the first 2 years and $20 million for every year after that. Section 9 authorizes that level of funding to pay for this inspection requirement.

DISCUSSION

Section 3 creates a new section 9005(a) which requires the Administrator or a State with an approved UST program to inspect each UST not later than 2 years after the date of enactment and at least once every 2 years thereafter. The committee does not intend that this section prevent States from adopting more stringent or frequent UST inspection programs or from permitting States to maintain existing inspection programs that are more stringent or frequent than the requirements of subtitle I. Rather, this section establishes a minimum level of frequency, although States may require more frequent inspections provided a State's inspection program is not inconsistent with the provisions of the subtitle. States are encouraged to implement innovative methods to carry out the requirements of this section.

The committee intends that the onsite inspections required under this section must include a comprehensive inspection of all readily accessible portions of each UST system, including equipment and records. The committee recognizes that a substantial portion of each UST system is installed below grade with a concrete covering. The committee does not intend that the onsite inspections required under this section involve inspection of these inaccessible components of each UST system, although visible above-ground signs of leakage from below-ground fixtures should be sought. At the same time, a review of paperwork and records without physically inspecting the equipment would not satisfy the requirement in this section that the inspections be undertaken `onsite.'

Sec. 4. Operator Training

SUMMARY

Section 4 requires the Administrator to publish guidelines, after notice and comment, which specify methods for training operators of underground storage tanks. The guidelines must take into account existing training programs put into place by States and operators, the high turnover rate of operators, the frequent improvements in tank technology, and the nature of the businesses in which operators are engaged.

From the date on which the Administrator publishes the guidelines, States have 2 years to develop and implement a strategy for the training of operators of underground storage tanks that are consistent with the guidelines that are developed in cooperation with owners and operators, and that take into consideration existing operator training programs. This section allows the Administrator to provide a grant up to $50,000 if the State develops and implements a State operator training strategy.

DISCUSSION

The May 2001 GAO report concludes that 29 percent of USTs regulated under subtitle I are not being operated or maintained properly. After millions of dollars have been spent bringing USTs into compliance with Federal standards in order to reduce the threat of leaking and the resulting problems, leaking tanks due to operator error is unacceptable. Human errors will always occur, but steps must be taken to minimize their occurrence.

The committee has received testimony that there are some operator training programs in effect at the retail level, but a 29 percent failure rate demands that more emphasis be placed on this very important aspect. Section 4 creates a new section 9010 in subtitle I to ensure that greater emphasis is placed on operator training. Section 9010(a) requires the Administrator to promulgate, within 2 years of enactment, guidelines that specify methods for training tank operators. The guidelines must take into account (A) State training programs in existence as of the date of publication of the guidelines; (B) training programs that are being employed by owners and operators as of the date of enactment of this paragraph; (C) the high turnover rate of operators; (D) the frequency of improvement in underground storage tank equipment technology; (E) the nature of the businesses in which the operators are engaged; and (F) such other factors as the Administrator determines to be necessary to carry out this section.

The considerations explicitly direct the Administrator to take into account existing State and operator training programs because this program will be most successful if it builds on successful models that may exist. Also, the Administrator must take into consideration the nature of the business in which operators are engaged. The guidelines must take into consideration the high turnover rate of employees at retail gasoline stations and not require a level of training that would be impractical given the nature of the business.

Section 9010(b) requires each State to develop and implement a strategy for the training of operators within 2 years after the date in which the Administrator publishes the operator training guidelines required in subsection (a). The State strategies must be consistent with the EPA guidelines promulgated under subsection (a) and must take into consideration the training programs implemented by owners and operators as of the date of enactment of this subsection. Rather than penalizing States for not complying with this section, it is the intent of this new section to provide States with performance bonuses of up to $50,000 for compliance with this section.

Sec. 5. Remediation of MTBE Contamination

SUMMARY

Section 5 authorizes the Administrator and States to carry out remediation of methyl tertiary butyl ether (MTBE) releases that present a threat to human health or welfare or the environment. Section 9 authorizes $125 million for each of fiscal years 2003 through 2007 for this purpose, for a total of $625 million over 5 years.

DISCUSSION

Relatively low levels of MTBE can be detected in groundwater. The detection of MTBE, by taste and smell, can make the water unpalatable, but not necessarily harmful. Section 5 amends Section 9003 of the Solid Waste Disposal Act to clarify that the Administrator and the States may undertake corrective actions whenever the presence of MTBE in groundwater presents a threat to public welfare, even in situations where the level of MTBE is not so high as to present a threat to human health or when the release is not from an underground storage tank.

New section 9003(h)(12) reconfirms the authority of the Administrator and the States to use funds from the LUST Trust Fund for the cleanup of sites contaminated by MTBE from leaking USTs. In addition, section 9003(h)(12) authorizes the Administrator and the States to conduct such cleanup activities using designated funds made available under new section 9014(2)(B) from the LUST Trust Fund. In order to undertake a corrective action under this subsection, the Administrator or a State must still comply with the requirements of Section 9003(h)(2) of the Solid Waste Disposal Act. States are to exercise this authority in accordance with their cooperative agreements.

Sec. 6. Release Compliance and Prevention

SUMMARY

Section 6 provides a range of measures intended to promote and enhance the compliance and prevention of releases from underground storage tanks through a combination of mechanisms. Those mechanisms include increased funding for enforcement activities, increased focus on tanks owned by State and local governments, enforcement incentives for owners and operators, authority for the Environmental Protection Agency to prohibit the delivery of regulated substances to underground storage tanks, and the creation of a public record.

DISCUSSION

Section 6(a) amends Subtitle I of the Solid Waste Disposal Act by creating a new Section 9011 giving States greater flexibility in their use of LUST funds. New Section 9011 authorizes EPA and the States to use funds appropriated from the LUST Trust Fund to conduct inspections, issue orders, or bring actions under Subtitle I. Funding authorized under this section is for both formal enforcement actions, such as judicial actions and administrative orders, and related measures to secure compliance, such as notices of violation or warnings. This increased funding for inspections and enforcement-related activities will enable States and EPA to secure greater compliance with UST standards. Increased compliance will prevent future releases and resulting cleanup costs. Funds authorized under this provision may be used for cost recovery.

This section does not affect current law on State authority under authorized programs or Federal authority to enforce the requirements of Subtitle I. Nor does this provision affect EPA's authority to use other funds to enforce the UST program. EPA receives funding from sources other than the LUST Trust Fund to undertake inspection and enforcement related activities for leak detection and other preventive requirements. Any LUST Trust Fund appropriations used for such enforcement activities by EPA are expected to supplement funds that the Agency has been receiving, and will continue to receive, from sources other than the LUST Trust Fund.

In addition to authorizing funding for States and EPA for federally authorized programs, this section authorizes States to use funds to undertake inspection and enforcement related actions for State tank leak detection, prevention, and other requirements through State programs with requirements that are similar or identical to Subtitle I. State agencies currently receive funding from EPA from sources other than the LUST Trust Fund to undertake such activities for leak detection and other preventive requirements. It is expected that States will continue to receive funding from EPA from these other sources, as well as from the LUST Trust Fund, for these activities. Any LUST Trust Fund appropriations used for enforcement-related activities by States should supplement funds that the States have been receiving, and will continue to receive.

Section 6(b) adds new subsection (i) to section 9003 which requires States to submit to EPA a strategy to ensure compliance of tanks owned by State or local governments with the provisions of the subtitle. This section allows the Administrator to provide a grant up to $50,000 if the State develops the implementation report. Every UST in the Nation, whether owned by a private party or a State or local government, was required under Federal law to be upgraded or closed by December 22, 1998. According to the 2001 report by the General Accounting Office, a sizable portion of the USTs which have not been upgraded, as of 2001, were owned by State and local governments. The committee intends this section to provide incentives for these governmental entities to comply with the Federal UST requirements at the earliest possible date.

Section 6(b) does not provide these governmental entities with an extension of the 1998 upgrade deadline. Rather, it mandates that these governmental entities provide EPA with a detailed report on the status of all publicly owned UST systems under their jurisdiction within 2 years of enactment, including a list of the locations of all non-compliant government-owned USTs. It is the committee's expectation that these governmental entities will strive to comply with the tank requirements rather than submit lengthy lists of noncompliant tanks.

Section 6(c) provides enforcement flexibility to EPA when determining the terms of a compliance orders or the amount of a civil penalty. The Administrator may provide this leniency if the owner or operator has a history of operating underground storage tanks in accordance with applicable law or if they have implemented an operator training program. Conversely, the Administrator shall not provide leniency to owners and operators that have repeatedly violated Federal and State UST requirements. The intent of this section is not to penalize owners and operators for paperwork violations deemed to be minor.

Section 6(d) provides the Administrator, or States with an approved program, with authority to prohibit the delivery of regulated substances to underground storage tanks that are not in compliance with a requirement or standard promulgated by the Administrator or a State. Prior to exercising this authority, EPA must promulgate regulations that describe the circumstances under which the authority may be used and the process by which the authority will be used consistently and fairly.

New section 9006(f) authorizes the Administrator or a State to prohibit deliveries of motor fuels to USTs that are not in compliance with Federal or State UST regulations (so-called `red-tag' authority). Such delivery prohibitions are an important tool in UST enforcement, as it imposes potential liability not just on the UST owner/operator but also on the supplier of the motor fuels being delivered to a non-compliant tank. States that have adopted such delivery prohibitions have witnessed an increase in UST compliance.

It is possible that such delivery prohibitions, as well as the 1998 requirement to upgrade or close USTs, could result in the closure of motor fuel outlets in remote locations where alternative fueling locations are not readily at hand. Consequently, section 9006(f) adopts a temporary limitation on the use of delivery prohibitions for locations in areas where the closure of the outlet with the non-compliant UST would leave motorists with no other fueling alternative.

This limitation, however, is not intended to prohibit the Administrator or a State from enforcing the 1998 UST standards against the owners and operators of such remote USTs. These UST owners/operators have had since 1986 to upgrade these USTs and have now been in violation of Federal and State law for 4 years. The remote location of the UST is not an excuse for failure to upgrade the UST fuel leaking from such a tank is just as likely as any other UST to contaminate local water supplies.

Therefore, the 180-day limitation on this authority is not intended to limit the Administrator's or a State's authority to close such remote location tanks immediately for failure to comply with Federal or State UST standards. Rather, the limitation restricts the Administrator's or a State's use of the delivery prohibition authority authorized by this section with respect to such remote USTs, and gives these UST owner/operators an opportunity to bring tanks into compliance with the statute. This limitation only applies for 180 days after the Administrator or a State has given the UST owner/operator notice of non-compliance. After 180 days, the committee encourages the Administrator or a State to use delivery prohibition against the UST owner/operator if the UST has not yet been brought into compliance with Federal and State UST standards.

The Administrator is directed to issue guidelines which define the term `specified geographic areas' and it is expected that the term would be defined narrowly. The committee expects that few USTs would qualify for this limitation and that the burden must be on the subject UST owner/operator to show that the closure of the subject UST would make motor fuel unavailable to motorists in a small town or area.

Section 6(e) directs the Administrator to require States and Indian tribes to maintain, update at least annually, and make available to the public, a record of USTs regulated under this subtitle. EPA shall make each public record available to the public electronically.

Sec. 7. Federal Facilities

SUMMARY

Section 7 requires the Administrator, in cooperation with Federal agencies which own or operate USTs or which manage land on which USTs are located, to review the status of compliance of those tanks within 1 year of enactment. Within 2 years of enactment, each Federal agency which owns or operates USTs or which manage land on which USTs are located must develop strategies to bring their tanks into compliance with applicable law.

DISCUSSION

Compliance of all UST systems with the requirements of subtitle I is of paramount importance. The provisions of the bill focus equally on privately owned tanks and tanks owned by government entities. A tank owned by a unit of government or a tank which is located on Federal land must be held to the same standards as those tanks owned by private entities.

To address this balance, section 7 adds a new section 9007(c) which requires the Administrator, in cooperation with each Federal agency that owns or operates USTs or that manages land on which USTs are located to review and report on the compliance status of federally regulated tanks. While the outcome of the Federal UST program must be full compliance, it is important that sufficient information be collected in order to ensure that limited resources are being channeled toward the problem areas. Therefore, within 1 year of enactment, the Federal agencies are required to review and report on their compliance status. In addition, those same agencies must also submit to the Administrator an implementation report which lists each UST, which they own or which is located on their land, which is not in compliance with subtitle I and describe the actions that have been and will be taken to ensure compliance. This information must be made available to the public. The information will not shield tank owners from any penalties or actions to which they are subject under subtitle I.

New section 9007(d) includes a provision which requires Federal facilities covered by section 9007(a) to be subject to the provisions of 6001(a). This new provision is intended to ensure that the requirements under the Solid Waste Disposal Act apply equally to private entities and Federal entities.

Sec. 8. Tanks Under the Jurisdiction of Indian Tribes

SUMMARY

Section 8 requires the Administrator, in cooperation with Indian tribes, to develop and implement a strategy within 1 year of enactment that prioritizes UST releases on Indian lands and takes necessary corrective actions with respect to those prioritized releases. Within 2 years of enactment, and every 2 years thereafter, the Administrator shall submit to Congress a report that summarizes the status of implementation of the UST program on Indian lands.

DISCUSSION

Section 8 directs EPA, in coordination with Indian Tribes, to develop and implement a strategy to undertake the necessary corrective actions and to implement and enforce other requirements in connection with USTs within Tribal jurisdiction. Within 2 years of the date of enactment of S. 1850, and every 2 years thereafter, EPA is to submit to Congress a report on the progress of the Agency in implementing the UST program with respect to tanks within Tribal jurisdiction.

According to EPA, implementation of the leaking underground storage tank program with respect to tanks within Tribal jurisdiction has presented a number of unique challenges. The large number of Indian Tribes and their geographic diversity can make implementation difficult. In addition, unlike most States that have established separate State cleanup funds that contribute to the cleanup of releases from underground storage tanks, Indian Tribes generally have not established cleanup funds to offset remediation costs. This bill is intended to promote the timely and effective response to contamination from leaking underground storage tanks within Tribal jurisdiction.

Sec. 9. State Authority

SUMMARY

Section 9 clarifies that States have the authority to establish requirements that are more stringent than the requirements of Subtitle I.

DISCUSSION

The Federal underground storage tank program has proven very effective at carrying out the goals of subtitle I. The success is often attributed to the effective relationship between the Federal Government and the States, whereby all but a few States implement the Federal program in a way that is consistent with the Federal program, but designed to be successful in a particular State. Section 9 adds a new section 9013 to subtitle I which seeks to clarify the status quo, in which nothing prohibits a State from establishing a standard or requirement that is more stringent than Federal law.

Sec.10. Authorization of Appropriations

SUMMARY

Section 10 authorizes appropriations for each of the various functions that are required in the legislation.

DISCUSSION

Section 10 adds a new section 9014 to subtitle I of the Solid Waste Disposal Act. Section 9014(1) provides from general revenues an authorization of $25,000,000 for each of fiscal years 2003 through 2007 to carry out subtitle I (except the leaking underground storage tank program).

New section 9014(2) provides an authorization for appropriation from the Leaking Underground Storage Tank Trust Fund for various purposes. The legislation authorizes $150,000,000 to carry out the leaking underground storage tank program; $125,000,000 for each of fiscal years 2003 through 2007 for the remediation of MTBE contamination; $35,000,000 for each of fiscal years 2003 and 2004 and $20,000,000 for each of fiscal years 2005 through 2007 to carry out the biannual inspections required in new section 9005(a); and $50,000,000 for fiscal years 2003 and $30,000,000 for each of fiscal years 2004 through 2008 to carry out new section 9011.

The authorization levels in this section are a significant increase from the levels which have been appropriated over the past several years. The increase in the authorization levels signifies the complexity and number of UST releases that exist currently and the shortfall of funding with which to address the problems. The balance in the Leaking Underground Storage Tank Trust Fund has grown every year. Not only does the Trust Fund continue to grow with receipts from the petroleum tax, the interest on the principal continues to pad the balance of the Fund. In fact, the historic appropriations for this program are roughly equal to the interest generated by the principal. It is the intent of this legislation to bring funding levels to a level that is more even with the annual inputs into the Fund.

Sec. 11. Conforming Amendments

Sec. 12. Technical Amendments

These sections of the bill make conforming and technical amendments to the Solid Waste Disposal Act.

LEGISLATIVE HISTORY

On December 19, 2001, Senators Chafee, Carper, Smith of New Hampshire, Jeffords, and Inhofe introduced S. 1850, a bill to amend the Solid Waste Disposal Act to bring underground storage tanks into compliance with subtitle I of that Act, to promote cleanup of leaking underground storage tanks, to provide sufficient resources for such compliance and cleanup, and for other purposes. The Committee on Environment and Public Works conducted a hearing on S. 1850 on February 25, 2002 and the Subcommittee on Superfund, Toxics, Risk, and Waste Management conducted a hearing on May 8, 2002.

S. 1850, as amended, was reported by the Committee on Environment and Public Works on July 25, 2002.

HEARINGS

On February 25, 2002, the Committee on Environment and Public Works conducted a field hearing in Pascoag, Rhode Island to receive testimony on S. 1850, the Underground Storage Tank Compliance Act of 2001, and the impact of leaking underground storage tanks on local communities. The committee received testimony from Mr. George Reilly, Pascoag, RI; Mr. Michael Wallace, Pascoag, RI; Mr. Jan Reitsma, Director, Rhode Island Department of Environmental Management, Providence, RI; Hon. Scott Rabideau, Rhode Island State Representative, Harrisville, RI; Mr. Arthur J. DeBlois III, President & CEO, DB Companies, Inc., Providence, RI, on behalf of the Society of Independent Gasoline Marketers of America (SIGMA) and the National Association of Convenience Stores (NACS); and Mr. Jeff Kos, President, Environmental Council of Rhode Island, Providence, RI.

On May 8, 2002, the Subcommittee on Superfund, Toxics, Risk, and Waste Management conducted a hearing to receive testimony on S. 1850, the Underground Storage Tank Compliance Act of 2001. The subcommittee received testimony from Hon. Marianne Horinko, Assistant Administrator, Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency, Washington, DC; Mr. John Stephenson, Director, Natural Resources and Environment, U.S. General Accounting Office, Washington, DC; Mr. Craig Perkins, Director of Environmental & Public Works Management, city of Santa Monica, Santa Monica, CA; Mr. Grant Cope, Staff Attorney, U.S. Public Interest Research Group, Washington, DC; Ms. Kathleen Stiller, ASTSWMO Tanks Subcommittee Chair, Delaware Department of Natural Resources and Environmental Control, New Castle, DE, on behalf of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO); Mr. Arthur J. DeBlois III, President & CEO, DB Companies, Inc., Providence, RI, on behalf of the Society of Independent Gasoline Marketers of America (SIGMA) and the National Association of Convenience Stores (NACS); and Mr. Roger Brunner, Profits Center Manager, Zurich North America, East Lansing, MI.

ROLLCALL VOTES

On July 25, 2002, the Committee on Environment and Public Works met to consider S. 1850, the Underground Storage Tank Compliance Act of 2001. A manager's amendment offered by Senators Chafee and Jeffords was agreed to by voice vote.

A first degree technical amendment offered by Senators Chafee and Jeffords, as amended, was agreed to by voice vote. A second degree amendment offered by Senators Smith of New Hampshire, Chafee and Jeffords to ensure that funds authorized for remediation of MTBE contamination need not be linked to underground storage tanks was agreed to by voice vote.

An amendment offered by Senator Smith of New Hampshire to reauthorize and amend provisions relating to recycled oil liability under the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA) of 1980 failed to pass by a rollcall vote of 5 ayes to 11 nays with 3 not voting. Voting in favor were Senators Bond, Crapo, Inhofe, Smith of New Hampshire, and Voinovich. Voting against were Senators Baucus, Boxer, Carper, Chafee, Clinton, Corzine, Graham, Jeffords, Lieberman, Reid, and Wyden. Not voting were Senators Domenici, Specter, and Warner.

An amendment offered by Senator Crapo to reaffirm the authority of States to regulate underground storage tanks on certain lands was agreed to by voice vote.

An amendment offered by Senator Chafee (for Senator Wyden) to ensure that certain provisions applicable to Federal facilities apply with respect to Federal underground storage tanks was agreed to by voice vote. Senator Smith of New Hampshire asked to be recorded as voting `no'.

REGULATORY IMPACT STATEMENT

Section 11(b) of rule XXVI of the Standing Rules of the Senate requires publication of the report of the committee's estimate of the regulatory impact made by the bill as reported. No regulatory impact is expected by the passage of S. 1850. The bill will not affect the personal privacy of others.

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995 (P.L. 104-4), the committee finds that the bill would impose no Federal intergovernmental unfunded mandates on State, local, or tribal governments. All of its governmental directives are imposed on Federal agencies. The bill does not directly impose any private sector mandates.

COST OF LEGISLATION

Section 403 of the Congressional Budget and Impoundment Control Act requires that a statement of the cost of the reported bill, prepared by the Congressional Budget Office, be included in the report. That statement follows:

U.S. Congress,

Congressional Budget Office,

--Washington, DC, August 14, 2002.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1850, the Underground Storage Tank Compliance Act of 2002.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Susanne S. Mehlman, who can be reached at 226-2860.

Sincerely,

Dan L. Crippen.

-

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

S. 1850, Underground Storage Tank Compliance Act of 2002, as ordered reported by the Senate Committee on Environment and Public Works on July 25, 2002

Summary

S. 1850 would authorize the appropriation of funds to promote the cleanup of leaking underground storage tank (LUST) sites and the prevention of leaks at underground storage tank (UST) sites. The bill would authorize the appropriation of $1.675 billion from the LUST Trust Fund over the 2003-2007 period for those purposes. This funding would be used by the Environmental Protection Agency (EPA) for grants to States for the cleanup and treatment of contamination at LUST sites, including contamination from methyl tertiary butyl ether (known as MTBE and used as an additive in some gasoline), and for enforcement and inspection activities at UST sites. In addition, S. 1850 would authorize the appropriation of $125 million over the next 5 years for EPA to support compliance efforts at UST sites, including grants to States to develop leak detection programs.

Assuming appropriation of the specified amounts, CBO estimates that implementing this legislation would cost about $1.7 billion over the 2003-2007 period. CBO also estimates that enactment of S. 1850 would have a negligible effect on receipts because the bill would allow EPA to impose civil penalties on certain UST operators that do not comply with EPA or State standards. Therefore, pay-as-you-go procedures would apply.

S. 1850 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) and would impose no costs on State, local, or tribal governments.

Estimated Cost to the Federal Government

The estimated budgetary impact of S. 1850 is shown in the following table. For this estimate, CBO assumes that the authorized amounts will be appropriated for each year and that outlays will follow historical spending patterns for similar activities. The costs of this legislation fall within budget function 300 (natural resources and environment).


By Fiscal Year, in Millions of Dollars
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                                         2002 2003 2004 2005 2006 2007 
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SPENDING SUBJECT TO APPROPRIATION                                      
LUST and UST Spending Under Current Law:                               
Budget Authority 1                         90    0    0    0    0    0 
Estimated Outlays                          93   60   33   13    5    0 
Proposed Changes LUST Grants to States:                                
Authorization Level                         0  150  150  150  150  150 
Estimated Outlays                           0  128  150  150  150  150 
EPA Support for UST:                                                   
Authorization Level                         0   25   25   25   25   25 
Estimated Outlays                           0   21   25   25   25   25 
Biannual Inspections of USTs:                                          
Authorization Level                         0   35   35   20   20   20 
Estimated Outlays                           0   30   35   22   20   20 
MTBE Remediation:                                                      
Authorization Level                         0  125  125  125  125  125 
Estimated Outlays                           0  106  125  125  125  125 
Prevention and Compliance Grants:                                      
Authorization Level                         0   50   30   30   30   30 
Estimated Outlays                           0   43   33   30   30   30 
Total Proposed Changes:                                                
Authorized Level                            0  385  365  350  350  350 
Estimated Outlays                           0  328  368  352  350  350 
LUST and UST Spending Under S. 1850:                                   
Authorization Level                        90  385  365  350  350  350 
Estimated Outlays                          93  388  401  365  355  350 
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Pay-As-You-Go Considerations

The Balanced Budget and Emergency Deficit Control Act sets up pay-as-you-go procedures for legislation affecting direct spending or receipts. Because the civil penalties that could be imposed under this bill are classified as receipts, pay-as-you-go procedures would apply. Because States would mostly be responsible for implementing the LUST program, CBO estimates that any additional collection of civil penalties under the bill by EPA would be insignificant each year.

Intergovernmental and Private-Sector Impact

S. 1850 contains no intergovernmental or private-sector mandates as defined in UMRA and would impose no costs on State, local, or tribal governments. The bill would benefit State, local, and tribal governments by doubling grants to States for the cleanup of LUST sites and other activities. Any costs to comply with the conditions of these grants would be voluntary.

Changes in Existing Law

In compliance with section 12 of rule XXVI of the Standing Rules of the Senate, changes in existing law made by the bill as reported are shown as follows: Existing law proposed to be omitted is enclosed in [black brackets], new matter is printed in italic, existing law in which no change is proposed is shown in roman:

SOLID WASTE DISPOSAL ACT

[AS AMENDED THROUGH P.L. 106-580, DEC. 29, 2000]

TITLE II--SOLID WASTE DISPOSAL

SUBTITLE A--GENERAL PROVISIONS

SHORT TITLE AND TABLE OF CONTENTS

SEC. 1001. This title (hereinafter in this title referred to as `this Act'), together with the following table of contents, may be cited as the `Solid Waste Disposal Act':

Subtitle A--General Provisions
Sec. 1001. Short title and table of contents.
* * * * * * *
Sec. 9002. Notification and public records.
* * * * * * *
[Struck out->][ Sec. 9010. Authorization of appropriations. ][<-Struck out]
Sec. 9010. Operator training.
Sec. 9011. Use of funds for release prevention and compliance.
Sec. 9012. Tanks under the jurisdiction of Indian tribes.
Sec. 9013. State authority.
Sec. 9014. Authorization of appropriations.

DEFINITIONS AND EXEMPTIONS

SEC. 9001. [Struck out->][ For the purposes of this subtitle-- ][<-Struck out] In this subtitle:

* * * * * * *

NOTIFICATION AND PUBLIC RECORDS

SEC. 9002. (a) UNDERGROUND STORAGE TANKS- (1) Within 18 months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, each owner of an underground storage tank shall notify the State or local agency or department designated pursuant to subsection (b)(1) of the existence of such tank, specifying the age, size, type, location, and uses of such tank.

(2)(A) For each underground storage tank taken out of operation after January 1, 1974, the owner of such tank shall, within eighteen months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, notify the State or local agency, or department designated pursuant to subsection (b)(1) of the existence of such tanks (unless the owner knows the tank subsequently was removed from the ground). The owner of a tank taken out of operation on or before January 1, 1974, shall not be required to notify the State or local agency under this subsection.

(B) Notice under subparagraph (A) shall specify, to the extent known to the owner--

(3) Any owner which brings into use an underground storage tank after the initial notification period specified under paragraph (1), shall notify the designated State or local agency or department within thirty days of the existence of such tank, specifying the age, size, type, location and uses of such tank.

(4) Paragraphs (1) through (3) of this subsection shall not apply to tanks for which notice was given pursuant to section 103(c) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

(5) Beginning thirty days after the Administrator prescribes the form of notice pursuant to subsection (b)(2) and for eighteen months thereafter, any person who deposits regulated substances in an underground storage tank shall reasonably notify the owner or operator of such tank of the owner's notification requirements pursuant to this subsection.

(6) Beginning thirty days after the Administrator issues new tank performance standards pursuant to section 9003(e) of this subtitle, any person who sells a tank intended to be used as an underground storage tank shall notify the purchaser of such tank of the owner's notification requirements pursuant to this subsection.

(b) AGENCY DESIGNATION- (1) Within one hundred and eighty days after the enactment of the Hazardous and Solid Waste Amendments of 1984, the Governors of each State shall designate the appropriate State agency or department or local agencies or departments to receive the notifications under subsection (a)(1), (2), or (3).

(2) Within twelve months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator, in consultation with State and local officials designated pursuant to subsection (b)(1), and after notice and opportunity for public comment, shall prescribe the form of the notice and the information to be included in the notifications under subsection (a)(1), (2), or (3). In prescribing the form of such notice, the Administrator shall take into account the effect on small businesses and other owners and operators.

(c) STATE INVENTORIES- Each State shall make 2 separate inventories of all underground storage tanks in such State containing regulated substances. One inventory shall be made with respect to petroleum and one with respect to other regulated substances. In making such inventories, the State shall utilize and aggregate the data in the notification forms submitted pursuant to subsections (a) and (b) of this section. Each State shall submit such aggregated data to the Administrator not later than 270 days after the enactment of the Superfund Amendments and Reauthorization Act of 1986.

RELEASE DETECTION, PREVENTION, AND CORRECTION REGULATIONS

SEC. 9003. (a) * * *

* * * * * * *

(f) EFFECTIVE DATES- (1) Regulations issued pursuant to [Struck out->][ subsection ][<-Struck out] subsections (c) and (d) of this section, and standards issued pursuant to subsection (e) of this section, for underground storage tanks containing regulated substances defined in section [Struck out->][ 9001(2)(B) ][<-Struck out] 9001(7)(B) (petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure) shall be effective not later than thirty months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984.

(2) Standards issued pursuant to subsection (e) of this section (entitled `New Tank Performance Standards') for underground storage tanks containing regulated substances defined in section [Struck out->][ 9001(2)(A) ][<-Struck out] 9001(7)(A) shall be effective not later than thirty-six months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984.

(3) Regulations issued pursuant to subsection (c) of this section (entitled `Requirements') and standards issued pursuant to subsection (d) of this section (entitled `Financial Responsibility') for underground storage tanks containing regulated substances defined in section [Struck out->][ 9001(2)(A) ][<-Struck out] 9001(7)(A) shall be effective not later than forty-eight months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984.

* * * * * * *

(h) EPA RESPONSE PROGRAM FOR PETROLEUM-

* * * * * * *

APPROVAL OF STATE PROGRAMS

SEC. 9004. (a) ELEMENTS OF STATE PROGRAM- Beginning 30 months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, any State may, submit an underground storage tank release detection, prevention, and correction program for review and approval by the Administrator. The program may cover tanks used to store regulated substances referred to [Struck out->][ in 9001(2) (A) or (B) or both ][<-Struck out] in subparagraph (A) or (B) of section 9001(7). A State program may be approved by the Administrator under this section only if the State demonstrates that the State program includes the following requirements and standards and provides for adequate enforcement of compliance with such requirements and standards--

* * * * * * *

INSPECTIONS, MONITORING, TESTING, AND CORRECTIVE ACTION

SEC. 9005. (a) INSPECTION REQUIREMENTS- Not later than 2 years after the date of enactment of the Underground Storage Tank Compliance Act of 2002, and at least once every 2 years thereafter, the Administrator or a State with a program approved under section 9004, as appropriate, shall require that all underground storage tanks regulated under this subtitle undergo onsite inspections for compliance with regulations promulgated under section 9003(c).

[Struck out->][ (a) ][<-Struck out] (b) FURNISHING INFORMATION- For the purposes of developing or assisting in the development of any regulation, conducting any study, taking any corrective action, or enforcing the provisions of this subtitle, any owner or operator of an underground storage tank (or any tank subject to study under section 9009 that is used for storing regulated substances) shall, upon request of any officer, employee or representative of the Environmental Protection Agency, duly designated by the Administrator, or upon request of any duly designated officer, employee, or representative of a State acting parsuant to subsection (h)(7) of section 9003 or with an approved program, furnish information relating to such tanks, their associated equipment, their contents, conduct monitoring or testing, permit such officer at all reasonable times to have access to, and to copy all records relating to such tanks and permit such officer to have access for corrective action. For the purposes of developing or assisting in the development of any regulation, conducting any study, taking corrective action, or enforcing the provisions of this subtitle, such officers, employees, or representatives are authorized--

[Struck out->][ (b) ][<-Struck out] (c) CONFIDENTIALITY- (1) Any records, reports, or information obtained from any persons under this section shall be available to the public, except that upon a showing satisfactory to the Administrator (or the State, as the case may be) by any person that records, reports, or information, or a particular part thereof, to which the Administrator (or the State, as the case may be) or any officer, employee, or representative thereof has access under this section if made public, would divulge information entitled to protection under section 1905 of title 18 of the United States Code, such information or particular portion thereof shall be considered confidential in accordance with the purposes of that section, except that such record, report, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this Act, or when [Struck out->][ relevent ][<-Struck out] relevant in any proceeding under this Act.

(2) Any person not subject to the provisions of section 1905 of title 18 of the United States Code who knowingly and willfully divulges or discloses any information entitled to protection under this subsection shall, upon conviction, be subject to a fine of not more than $5,000 or to imprisonment not to exceed one year, or both.

(3) In submitting data under this subtitle, a person required to provide such data may--

(4) Notwithstanding any limitation contained in this section or any other provision of law, all information reported to, or otherwise obtained, by the Administrator (or any representative of the Administrator) under this Act shall be made available, upon written request of any duly authorized committee of the Congress, to such committee (including records, reports, or information obtained by representatives of the [Struck out->][ Evironmental ][<-Struck out] Environmental Protection Agency).

* * * * * * *

FEDERAL ENFORCEMENT

SEC. 9006. (a) * * *

* * * * * * *

* * * * * * *

FEDERAL FACILITIES

SEC. 9007. (a) * * *

* * * * * * *

* * * * * * *

STUDY OF UNDERGROUND STORAGE TANKS

SEC. 9009. (a) PETROLEUM TANKS- Not later than twelve months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall complete a study of underground storage tanks used for the storage of regulated substances defined in section [Struck out->][ 9001(2)(B) ][<-Struck out] 9001(7)(B).

(b) OTHER TANKS- Not later than thirty-six months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall complete a study of all other underground storage tanks.

(c) ELEMENTS OF STUDIES- The studies under subsections (a) and (b) shall include an assessment of the ages, types (including methods of manufacture, coatings, protection systems, the compatibility of the construction materials and the installation methods) and locations (including the climate of the locations) of such tanks; soil conditions, water tables, and the hydrogeology of tank locations; the relationship between the foregoing factors and the likelihood of releases from underground storage tanks; the effectiveness and costs of inventory systems, tank testing, and leak detection systems; and such other factors as the Administrator deems appropriate.

(d) FARM AND HEATING OIL TANKS- Not later than thirty-six months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall conduct a study regarding the tanks referred to in section [Struck out->][ 9001(1) (A) and (B) ][<-Struck out] subparagraphs (A) and (B) of section 9001(10). Such study shall include estimates of the number and location of such tanks and an analysis of the extent to which there may be releases or threatened releases from such tanks into the environment.

* * * * * * *

SEC. 9010. OPERATOR TRAINING.

SEC. 9011. USE OF FUNDS FOR RELEASE PREVENTION AND COMPLIANCE.

SEC. 9012. TANKS UNDER THE JURISDICTION OF INDIAN TRIBES.

SEC. 9013. STATE AUTHORITY.

SEC. 9014. AUTHORIZATION OF APPROPRIATIONS.

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