Auto dealerships and service centers often utilize storage tanks for fuel, waste oil, and wastewater oil-water separators. They should closely review and understand Pennsylvania’s regulation of aboveground and underground storage tanks, especially important changes issued in late December 2018. Many new requirements became effective at that time, yet the Pennsylvania Department of Environmental Protection (“PADEP”) and the regulated community are still grappling with the practical application of some provisions. Owners and operators of regulated storage tanks should already be in compliance with the new requirements that are in effect. They should also continue to track additional developments, as some provisions are phased in and PADEP continues to release new forms and guidance. A few noteworthy changes for auto dealerships and service centers are briefly summarized below.
Background on the Final Rulemaking
The rulemaking was intended to align Pennsylvania’s storage tank program with the federal program administered by the U.S. Environmental Protection Agency (“EPA”). Under federal law, state agencies may develop their own regulatory programs to apply in lieu of the federal program, but the state program must be at least as stringent as the federal program. In 2015, EPA amended the federal underground storage tank (“UST”) regulations, giving state agencies three years to amend their own regulatory programs to match the federal program.
One of the notable changes in the rulemaking concerns the definition of USTs. Previously, many in the regulated community operated wastewater treatment tank systems, including oil-water separators (“OWSs”), as exempt from regulation. The rulemaking changed this, however, as this exemption now only applies to wastewater treatment tank systems that are regulated under certain sections of the federal Clean Water Act. On the other hand, the definition of aboveground storage tank (“AST”) specifically exempts flow-through process tanks, including OWSs. As applied to automotive dealerships and service centers, the use of a parking-lot OWS may trigger compliance obligations under the recent rulemaking, but PADEP has yet to release any guidance addressing this issue. Unfortunately, owners of previously unregulated/deferred storage tanks were only given sixty days from December 22, 2018, to register newly regulated tanks (deadline of February 20, 2019). As the regulated industry awaits further PADEP guidance, there is no indication whether PADEP would exercise enforcement discretion where the owner failed to register a tank because the obligation was unclear when the deadline passed. Stay tuned.
“Suspected Releases” and Release Reporting
There are also important changes to the release investigation and reporting procedures. They now require owners and operators of USTs to conduct an investigation whenever an “indication of a suspected release” occurs. “Suspected release” remains undefined under the new regulations, but there is a list of six conditions that constitute an “indication of a suspected release,” such as the presence of water in a UST system.
Once the investigation of the suspected release is completed, owners and operators of USTs are required to report confirmed releases. Additionally, owners and operators of USTs are now required to report suspected releases when an investigation is inconclusive (i.e., the investigation cannot determine whether a release has or has not occurred). As before, when an investigation confirms that no release has occurred, no further action is required aside from recovering and removing the regulated substance.
New Periodic Testing and Inspection Requirements
Looking forward, two new regulatory provisions added by the final rulemaking will be phased in over the next two years. The first provision addresses periodic testing requirements for overfill prevention equipment, containment sumps, spill prevention equipment, and release detection equipment. Generally, this equipment must be tested at least every three years using the specifications of the original manufacturer, an approved code of practice, or PADEP guidance.
The second provision concerns monthly and annual walkthrough inspection requirements. By December 22, 2019, owners of USTs must begin to conduct and document monthly walkthrough inspections for spill and release detection equipment. Similarly, owners of USTs must inspect containment sumps and handheld release detection equipment annually.
Changes to PADEP’s Reports and Forms
Along with the new testing and inspection provisions, PADEP released a number of new forms and reports that must be completed by owners and operators of storage tanks to evidence compliance with the new regulatory requirements. Additionally, PADEP revised several existing forms, such as the permitting and registration application. Owners and operators of storage tanks should ensure that the forms used in their operations are up-to-date.
Complying with the New Storage Tank Regulations
Although many of the regulations have been effective since December 2018, several questions remain regarding the status of certain storage tank features, such as OWSs. Auto dealerships, service centers, and other entities potentially affected by the regulations should thoroughly review the changes and remain apprised of additional developments and PADEP interpretations. If you have any questions concerning how the new storage tank regulations apply to your operations, you may contact the authors or other members of McNees’s Auto Dealer Practice Group.