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UST Program - Available Local Guidance (LG) Letters

UST Program - Local Guidance (LG) 4


LG-4 - UNDERGROUND TANK STATE AND FEDERAL LEGAL REQUIREMENTS

Date: July 7, 1985

To: Local Agencies and Interested Parties

This letter discusses state and federal legal requirements from the viewpoint of local agencies implementing the underground tank program. Specific topics covered include: (1) State Water Resources Control Board (State Board) regulations, (2) local agency legal actions to assume authority for the Underground Tank (UST) Program, (3) proposed amendments to the UST law, (4) federal and state laws affecting new tank design and construction standards, and (5) state law affecting existing tank monitoring requirements. These topics are presented in a question and answer format.



Question 1
What action did the Office of Administrative Law (OAL) take on the State Board adopted regulations?

Answer
On April 1, 1985, OAL disapproved the regulations based primarily on: (1) incomplete responses to comments, (2) lack of clarity in portions of the new tank design and construction and existing tank monitoring sections, (3) lack of evidence of necessity for some of the existing tank monitoring requirements, and (4) lack of explanation for rejecting alternatives that would lessen the adverse economic impact on small businesses. We are making the necessary revisions and will resubmit the package to OAL as soon as possible.



Question 2
Should the local agencies wait until OAL approves the regulations before they formally begin to implement the program?

Answer
No. It is uncertain whether regulations will be in effect on July 1, 1985, the date by which local agencies are required to establish UST programs and owners of existing tanks are required to meet the monitoring provisions of the law [Section 25292]. In the meantime, local agencies can accept applications and issue permits for existing and new tanks and can require cleanup of leaking tanks



Question 3
What does the July 1, 1985 decline for program implementation require?

Answer
The July 1, 1985 deadline affects counties and cities in different ways.

Requirements for Counties

Every county that did not adopt an ordinance before January 1, 1984 to implement state law and local requirements, or take action on or after January 1, 1984 to implement state law and the State Board's regulations, is required to take formal action by July 1, 1985 [Health and Safety Code (H&SC) Section 25299.3(b)].

Formal action includes adoption of fee or other resolutions, enactment of an underground hazardous substance storage tank ordinance, or amendment of an existing local ordinance. State law does not require a county to adopt an ordinance to implement the State Board's regulations.

Each county that has not yet taken formal action should consult with the county attorney to determine any specific local legal requirements that must be met. Each county is also required to designate a department, office, or local agency to administer the program [H&SC, Section 25283].

Requirements for Cities

Any city that has not adopted an ordinance either pre  or post January 1, 1984 is under no obligation at present to make a decision by July 1, 1985 as to whether it wants to implement state law and the State Board's regulations.

A city that decides to implement the program must advise the county in which the city is located of its intentions, consult with the county, and adopt an ordinance to implement the program [H&SC, Section 25283].

Proposed legislation (AB 2239, Sher) would require cities to decide by January 1, 1986 if they want to assume responsibility for the program. Counties with uncommitted cities cannot prepare their budgets if they do not know how many tanks they will be regulating.



Question 4
Does the county or city have to carry out the entire UST program?

Answer
Each county must assure that the entire program is carried out within its area of jurisdiction. A city may either choose to carry out the entire program or negotiate with the county to carry out some responsibilities under state law, such as tank inspections. Counties and cities may contract with other local agencies, such as fire districts, to handle portions of the program.



Question 5
What information should the local ordinance, resolution, or other formal action include?

Answer
The local ordinance or resolution should include:

  • A declaration of intent to implement all or portions of state law and State Board regulations for underground hazardous substance storage tanks [H&SC, Section 25283] (if the ordinance specifies portions, the agency carrying out the remainder of the program should be identified);
  • the identification of the specific office or agency that will run the program [H&SC, Section 25283]; and
  • a fee schedule for permits issued under the program [H&SC, Section 25287(a)].

There are no other state requirements for the content of the formal local action. The local agency may include portions of the State legislation and State Board's regulations or may reference these legal requirements. Both the law and the regulations are likely to change over the next several years to reflect federal law and regulations. A city or county which did not adopt an ordinance before January 1, 1984 and thus has to implement the State Board's regulations would avoid the need to amend its ordinance each time state law or regulations change by only referencing these documents.

Several local agencies have requested an example of a brief ordinance or resolution committing to implement state law and regulation. Attachment 1 is the City of Glendale's ordinance to implement state law for underground tanks. Attachment 2 is Sacramento County's fee resolution for underground tanks. Attachment 3 presents sample language for local ordinances.



Question 6
Is the State Board developing a model ordinance?

Answer
Yes. The State Board is developing a model ordinance that will merge the law with appropriate sections of the regulations. This model ordinance will thus consolidate all state legal requirements, which are currently split between the law and regulations. The model ordinance will be issued after the State Board's regulations are approved by OAL.

While the model ordinance will consolidate all current statutory requirements, it will only include the regulations pertaining to the original underground tank law: Chapter 1046 of 1983 (AB 1362). Current law includes the three 1984 amendments to Chapter 1046: Chapter 1537 (AB 3447), Chapter 1038 (AB 3565), and Chapter 1584 (AB 3781). Revisions to the law are likely this year, and the State Board may not be able to wait until the 1985 amendments have been enacted to revise the regulations to include the 1984 amendments. Thus, the law and regulations may remain out of step, until revisions of the regulations catch up with amendments to the law. Therefore, local agencies can either use the model ordinance primarily as a guidance document, or adopt and revise it as necessary. When the model ordinance is available, we will send it to you on request.



Question 7
Which new tank design and construction provisions of federal and state law must the local agencies implementing the State Board's regulations implement by July 1, 1985?

Answer

Federal Requirements

The 1984 amendments to the federal Resource Conservation and Recovery Act (RCRA), signed into law November 9, 1984, include a ban on installation of bare steel tanks in soils with a resistively less than 12,000 ohm/cm after May 8, 1985. Section 9003(9) of Subtitle I, Regulation of Underground Storage Tanks, states:

"(9) INTERIM PROHIBITION.

"(1) Until the effective date of the standards promulgated by the Administrator under subsection (e) and after 180 days after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984, no person may install an underground storage tank for the purpose of storing regulated substances unless such tank (whether of single or double wall construction)

"(A) will prevent releases due to corrosion or structural failure for the operational life of the tank;
"(B) is cathodically protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed in a manner to prevent the release or threatened release of any stored substance; and
"(C) the material used in the construction or lining of the tank is compatible with the substance to be stored.

"(2) Notwithstanding paragraph (1), if soil tests conducted in accordance with ASTM Standard G57-78, or another standard approved by the Administrator, show that soil resistively in an installation location is 12,000 ohm/cm or more (unless a more stringent standard is prescribed by the Administrator by rule), a storage tank without corrosion protection may be installed in that location during the period referred to in paragraph (1)."

EPA will be sending official interim guidance on these provisions of the federal law directly to local implementing agencies. A copy of Subtitle I is enclosed as Attachment 4.

State Requirements

Local agencies which will be implementing the State Board's regulations have the choice of treating tanks installed before the regulations are effective as either new tanks or existing tanks. If the new installations are considered new tanks, then they must meet the design and construction requirements of Section 25291 at a minimum. If the new installations are considered existing tanks, they must meet the monitoring requirements of Section 25292 at a minimum
[H&SC, Section 25299.3(b)]. With authorization from the local governing body or counsel, local agencies may implement the regulations before they become effective. See the answer to Question 9.

A proposed amendment to the underground tank law (AB 2239, Sher) includes the correction of an editing mistake that occurred as a result of Chapter 1584 of 1984 (AB 3781). Sections 25291(a)(7)(D) and (E) reference Section 25292(b)(3), which currently refers to a continuous leak detection and alarm system in monitoring wells. Section 25292(b)(3) of Chapter 1046 (AB 1362) referred to daily gauging and inventory reconciliation. One amendment contained in Chapter 1584 added a monitoring alternative and changed daily gauging and inventory reconciliation from (b)(3) to (b)(4). When the changes required by Chapter 1584 were incorporated into Chapter 1046, the reference in Section 25291(e)(7) was incorrectly left as 25292(b)(3), instead of being changed to 25292(b)(4). If this proposed amendment to the underground tank law is enacted, monitoring wells will no longer be required for all new motor vehicle fuel tanks that meet the requirements of Sections 25291(a)(7)(D) and (E).



Question 8
For existing tanks, which monitoring provisions contained in the state law must local implementing agencies require?

Answer
State law [H&SC, Section 25292(b)] requires that a tank be monitored at least monthly, using, as a minimum, one of the following five alternatives:

  • visual inspection
  • tank testing, as defined by National Fire Protection Association (NFPA) Bulletin #329
  • ground water monitoring
  • continuous leak detection and alarm system in monitoring wells
  • for tanks containing motor vehicle fuels, daily gauging and inventory reconciliation provided that:
    • records are kept for at least one year
    • tank is tested as defined by NFPA #329
    • leak detection is used for any pressurized pump connected to the tank
If a local agency favors one alternative over another, it can encourage its use by making it applicable to many types of tanks or hydrogeologic conditions.

Not all existing tanks need to be tested before the local agency issues an operating permit. State law [H&SC, Section 25292(b)(4)] only requires a tank test before the local agency issues an operating permit for tanks that use daily gauging and inventory reconciliation as the sole type of monitoring.



Question 9
Can local agencies implement the State Board's regulations before they are effective?

Answer
Yes, if the local governing body agrees with the State Board's interpretation of State law, as contained in the adopted regulations. The State Board developed the regulations within the statutory authority granted by the legislature, as the State Board interpreted the statute. The local agency should seek guidance from the local governing body and counsel to determine the requirements for the underground tank program before State Board regulations are effective. If the local policy makers decide not to implement the regulations before they are effective, then the local agency should implement the law until effective regulations are in place.



Question 10
Do local agencies have to inspect a tank before they issue an operating permit?

Answer
No. Local agencies do not have to inspect a tank before issuing an operating permit. State law [H&SC, Section 25285] gives the local agency the choice of inspecting a tank before issuing an operating permit.



Question 11
Since state law does not allow the State Board to certify tank testers, tank tests, or electronic monitoring devices, how can the local agency advise tank owners on these subjects?

Answer
Local agencies may:

A. observe and evaluate different tank tests and monitoring devices to establish approved tests/testers and monitoring devices

or


B. consult with other local agencies which have more experience in implementing the program to establish approved tests/testers and monitoring devices.


The State Board intends to develop a list of approved independent testing organizations which will evaluate tank tests and monitoring devices. Also, the U. S. Environmental Protection Agency has issued a contract for tank test evaluation. The results of that evaluation are expected later in 1985.

If you have any questions, contact us.

Sincerely,

[Original signed by:]
Edward C. Anton, Chief
Division of Water Quality

Enclosures (4)

For a copy of Enclosures contact us.

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