In a memorandum written to Regional Administrators, EPA Chief Carol Browner announced that the EPA will not extend this December's deadline for making potentially costly upgrades to regulated underground storage tanks located throughout the United States. She said:

"Under regulations issued more than eight years ago, owners and operators of underground storage tanks have until December 22, 1998 to upgrade, replace or close USTS that do not meet EPA's technical standards for protection against spills, overfills, and corrosion. I want you ... to know that EPA does not intend to extend this deadline ..."

WHAT MUST BE DONE BY DECEMBER 22, 1998
Under the federal law, owners and operators of regulated, substandard tanks have three options, effective December 22:

1. They can upgrade their tanks, which means adding state of the art spill and overfill protection and corrosion protection,
   
2. They can replace the old tanks with new ones that meet applicable standards,
   
3. They can close their tanks, which includes performing a cleanup if that is required.
   

WHY UPGRADES ARE NECESSARY
According to the EPA, underground storage tanks have been at the root of most groundwater contamination problems. And most water contamination cases involves petroleum. Older underground storage tanks have a propensity to leak, and indeed have often done so. Since it takes a very small amount of certain hazardous substances to cause a very large problem, tanks have justifiably become a subject for legislative concern, as well as scrutiny from the Environmental Protection Agency (EPA).

The EPA has required various upgrades to certain "regulated" underground storage tanks. The upgrade requirements apply to existing tanks and new installations. Though these upgrade requirements do not cover many residential tanks, they do apply in certain instances. In any event, there is a benefit for everyone to appreciate the problems associated with older underground tank installations and the provisions that certain property owners and operators will be expected to make by the end of this year.

PREVIOUS DEADLINE
By 1993, all existing regulated underground storage tanks were required to have leak detection devices. For new tanks, there were two options available. This could include monthly monitoring or monthly inventory control and tank tightness testing every five years. However, the last option was only available for ten years following the installation of the tank.

For existing tanks, there were three options. Monthly monitoring, monthly inventory control and annual tank tightness testing and monthly inventory control and tank tightness testing every five years. Piping must also be analyzed for leak detection. Various mechanisms for accomplishing this have also been set forth in federal government regulations.

DECEMBER 1988 REQUIREMENTS
Effective December 22, 1998 are mandatory corrosion protection and spill overfill prevention upgrades. Though previous deadlines for these requirements were extended several times as a result of industry pressure, the EPA has made it clear that this compliance deadline will not be extended. As was the case for leak detection, there are various options available for accomplishing these upcoming requirements.

For new installations, tanks may be coated and cathodically protected or they may be composed of fiberglass, or a tank may be fabricated of steel and clad with fiberglass.

For existing tanks, a tank owner may either comply with the options available for new tank owners or take other specified measures. Again, options also exist for new piping and existing piping.

For spill overflow and prevention, all tanks will require catch basins and one of the following: automatic shut-off devices, overfill alarms, or ball flow valves.

NEW JERSEY'S RESPONSE TO THE FEDERAL DEADLINE
The mandatory upgrade requirements are federal requirements, which means that no state may approves less restrictive requirements. In fact, the EPA has recently warned that any state effort to avoid the December deadline would not be legal.

In the face of this warning, both houses of the New Jersey State Legislature have approved a Bill which would effectively provide tank owners with an additional five year extension. Senate Bill 1159 currently sits on Governor Whitman's desk awaiting her signature.

If passed, this Bill will allow owners of regulated tanks containing heating oil for on site consumption to avoid the upgrade requirement if they commit to start a leak detection testing program by August 31, 1999, and continue for three years thereafter.

If the Governor does sign this Bill, which will make it a State law, the EPA might take some action to challenge the validity of this law. Such a challenge could range from cutting back federal assistance, to filing a law suit in federal court.

CONCLUSION
Owners and operators of regulated tanks need to upgrade them by December 22, 1998. Because this process can take several month, everyone affected must start acting now. New Jersey legislators have proposed a law which would, to some extend, bypass the effects of the federal law. All eyes should watch New Jersey, and other States taking similar action, to see if the approach is ultimately successful.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.