SENATE BILL REPORT
ESHB 1086
BYHouse Committee on Environmental Affairs (originally sponsored by Representatives Ferguson, Rust, Wang, May, Haugen, Winsley, R. Meyers, Betrozoff, Beck, Sayan, Nelson, Miller, Moyer, Dellwo, Heavey, Pruitt, D. Sommers, Walker, Brough, Schoon, Phillips, Spanel, Valle and Anderson)
Regulating underground storage tanks.
House Committe on Environmental Affairs
Rereferred House Committee on Revenue
Senate Committee on Environment & Natural Resources
Senate Hearing Date(s):March 22, 1989; March 23, 1989
Majority Report: Do pass as amended and be referred to Committee on Ways & Means.
Signed by Senators Metcalf, Chairman; Amondson, Vice Chairman; Barr, Bauer, Kreidler, Owen, Patterson, Sutherland.
Senate Staff:Gary Wilburn (786-7453)
March 23, 1989
Senate Committee on Ways & Means
Senate Hearing Date(s):March 31, 1989; April 3, 1989
Majority Report: Do pass as amended.
Signed by Senators McDonald, Chairman; Craswell, Vice Chairman; Amondson, Bailey, Bauer, Bluechel, Cantu, Hayner, Lee, Matson, Moore, Newhouse, Niemi, Owen, Saling, Smith, Talmadge, Warnke, Williams, Wojahn.
Senate Staff:Charles Langen (786-7715)
April 4, 1989
AS REPORTED BY COMMITTEE ON WAYS & MEANS, APRIL 3, 1989
BACKGROUND:
Leaking underground tanks that store petroleum products or hazardous substances may pose a serious threat to state and national groundwater resources. It has been estimated that a one gallon leak of gasoline can render one million gallons of groundwater unpalatable. According to the Environmental Protection Agency (EPA), approximately 96 percent of the fresh water in the United States is groundwater, 50 percent of the nation's drinking water comes from groundwater, and most groundwater aquifers are within a half mile of the surface.
In 1984, Congress passed Subtitle I of the Resource Conservation and Recovery Act (RCRA), giving EPA the authority to regulate underground storage tanks (UST's) containing petroleum products and hazardous substances. EPA was directed to set up an underground storage tank regulatory program that would require leak detection systems, record-keeping systems, corrective (cleanup) actions in response to releases, reporting of releases and corrective actions, and standards for tank closure. This law also required that UST owners notify the state of the existence of tanks and specify the age, size, type, location, and uses of the tanks.
In 1986, the Legislature designated the Department of Ecology (Ecology) as the state agency in Washington to coordinate the tank owner notification process and report back to the Legislature. This notification process has been completed, with tank owners reporting more than 34,000 UST's in the state. According to Ecology's report:
--Over 40 percent of the UST's in the state are over 15 years old (at which time they are considered statistically likely to begin leaking due to corrosion or structural failure).
--Over 95 percent of the UST's in the state store petroleum products.
--More than two-thirds of these tanks are in western Washington, where soil corrosivity is relatively high.
--Approximately 75 percent of tanks are located at commercial facilities, with over 25 percent located at gasoline service stations.
--Most tanks lack protection from corrosion and many lack adequate leak detection systems.
In 1986 Congress revisited the federal law in the Superfund Amendments and Reauthorization Act (SARA). A sixth requirement was added to the Underground Storage Tank Regulatory Program, requiring most owners and operators of underground tanks to have at least $1 million of insurance or other proof of financial responsibility to pay for the costs of cleaning up leaks and compensating injured parties for personal injuries and property damage.
In 1988, the EPA promulgated regulations establishing technical standards for the design and operation of UST's. UST's installed after December 31, 1988, are required to have a leak detection method in place and meet upgrading requirements (corrosion protection and spill/overfill prevention) upon installation. Existing tanks must be upgraded by 1998 and are required to have a leak detection method in place within five years, depending upon the age of the tank: installed before 1965 or unknown: by 1989; 1965-1969: by 1990; 1970-1974: by 1991; 1975-1979: by 1992; 1980-Dec., 1988: by 1993.
The EPA has also promulgated financial responsibility regulations. Compliance with financial responsibility requirements is phased-in over a two-year period, depending on the type of owner/operator and number of tanks owned.
States may apply to the EPA for delegation of the Underground Storage Tank Regulatory Program. States are also encouraged to create state mechanisms to help owners and operators meet financial responsibility requirements, as insurance is either not available from the private market or is prohibitively expensive for many tank owners and operators. According to the EPA, states with delegated Underground Storage Tank Regulatory Programs will be allowed to modify financial responsibility compliance dates within the two-year parameter. Additionally, the EPA will grant further extensions of the financial responsibility compliance dates in states that are actively pursuing the establishment of an underground storage tank financial responsibility program.
In 1988, the Legislature established the Joint Select Committee on Storage Tanks to study program options. The committee has developed two pieces of legislation establishing a Washington Underground Storage Tank Regulatory Program and a Washington Pollution Liability Reinsurance Program.
SUMMARY:
The Washington Underground Storage Tank Regulatory Program is established in the Department of Ecology. The department is directed to:
(1)Adopt statewide regulations for underground storage tanks that are consistent with and no less stringent than the federal regulations;
(2)Adopt rules to be used in designating local environmentally sensitive areas and in approving local regulations that are more stringent than the statewide standards in these areas, including local tank fees;
(3)Establish an administrative and enforcement program that meets minimum federal requirements and encourages the delegation of program responsibilities to local governments;
(4)Establish a tank tagging program that will clearly identify to persons delivering product whether the tank is in compliance with state requirements; and
(5)Consult with the State Building Code Council when adopting rules.
In addition, Ecology is authorized to establish certification programs for persons who conduct underground storage tank inspections, testing, closure, cathodic protection, interior tank lining, corrective action, or other required activities.
Ecology is required to establish a statewide underground storage tank administration and enforcement program. Cities and counties may apply to Ecology for delegation of program responsibilities. Fire protection districts are authorized to enter into interlocal agreements with the city or county to assume some or all of the delegated responsibilities. Ecology is required to administer and enforce the program where no delegation has occurred.
Ecology is directed to establish physical site criteria to be used in designating local environmentally sensitive areas. Cities and counties may apply to Ecology separately or jointly to obtain this designation. If approved by Ecology, cities and counties may set UST standards in these areas that are more stringent than the statewide regulations and impose annual local tank fees if necessary for enhanced program administration and enforcement. Local governments that apply for designation as an environmentally sensitive area later than five years after the date of Ecology's final rules may only propose more stringent regulations for new tanks. To be approved by Ecology, local regulations in environmentally sensitive areas must be reasonably consistent with previously approved local regulations for similar environmentally sensitive areas.
Delivery of regulated substances to untagged underground storage tanks is prohibited. This prohibition only applies to direct transfers and does not apply to suppliers who sell regulated substances to persons delivering regulated substance to UST's.
Ecology and local agencies enforcing underground storage tank requirements may: (1) require information and documents of owners and operators and may subpoena relevant witnesses and documents; (2) require an owner or operator to conduct testing or monitoring; and (3) enter private property to conduct inspections, copy records, or obtain samples.
The director is authorized to issue orders or sue in Thurston County Superior Court to: (1) enjoin threatened or continuing violations of program requirements; (2) restrain persons engaging in unauthorized activities that violate program requirements and endanger or damage public health or the environment; (3) require compliance with requests for information, access, testing, or monitoring; and (4) assess and recover civil penalties.
Penalties not to exceed $5,000 per tank per day of violation are established for violations of program requirements.
An annual state tank fee, to be assessed per tank, is required of underground storage tank owners. The fee will be set by Ecology based on the size of the tank and the cost of administering and enforcing the program. The fees will be deposited in a new underground storage tank account. Money in the account is subject to legislative appropriation and may only be spent for the administration and enforcement of the Underground Storage Tank Program.
Ecology is authorized to approve additional annual local tank fees in designated environmentally sensitive areas when necessary for enhanced program administration or enforcement. Local fees may not exceed 50 percent of the annual state fee.
Ecology is directed to establish a collection process for all fees that takes into account administrative ease and impact on the regulated community.
As of July 1, 1990, the statewide underground storage tank regulations will preempt other state and local regulations governing the same areas of regulation. Three exceptions to preemption are listed: (1) local regulations pertaining to local authority to immediately respond to releases; (2) existing local underground storage tank regulations that are more stringent than the federal regulations and the uniform building and fire codes; and (3) existing local regulations pertaining to permits and fees for using underground storage tanks in street right of ways.
Ecology is required to submit five annual reports to the Legislature on the implementation of the Underground Storage Tank Program.
Appropriation:
Revenue: yes
Fiscal Note: available
Effective Date:July 1, 1990 for the prohibition against delivery of regulated substances to untagged tanks and for preemption of local regulations. Emergency clause for all other provisions if an underground storage tank reinsurance bill is enacted prior to the enactment of this law. If an underground storage tank reinsurance bill is enacted after the date of this bill, the effective date for all other provisions is the date the underground storage tank reinsurance bill is enacted.
SUMMARY OF PROPOSED ENVIRONMENT & NATURAL RESOURCES AMENDMENT:
Authority to assess additional tank fees by local government is deleted. Tank fees imposed by the state are capped at $50 per tank. Tank fees collected which are not necessary to fund the regulatory program are to be transferred to the pollution liability reinsurance fund. Requirements for display of tank tags are made a condition upon delivery of regulated substances to underground storage tanks. Suppliers may not refuse delivery based upon the tank's leak potential where the tank is tagged or in compliance with applicable tank regulations.
SUMMARY OF PROPOSED WAYS & MEANS AMENDMENT:
The authority to assess additional tank fees by local government is restored. Such fee as approved by DOE may not exceed 50 percent of the state annual fee.
Senate Committee - Testified: ENVIRONMENT & NATURAL RESOURCES: Randy Ray, Washington Wheat Growers (pro); Terry Husseman, Department of Ecology (pro); Bruce Wishart, Sierra Club (pro); Vern Lindskog, Western States Petroleum Association (pro); Tim Hamilton, Independent Gasoline Retailers (pro)
Senate Committee - Testified: WAYS & MEANS: Senator Kreidler; Randy Ray, Washington Association of Wheat Growers; Gary Smith; Kathleen Collins, Association of Washington Cities; Bruce Wishart, Sierra Club; Tim Hamilton, Independent Gasoline Retailers; Vern Linkskog, Western States Petroleum Association; Bob Mosseth, insurance agent; Terry Husseman, DOE; Tom Lafton, DOE