I. SUMMARY
I would like to thank Sen. Boxer for holding a hearing on the S. 1850, and examining the issues related to improving the Leaking Underground Storage Tank program (“UST”). We would also like to thank the Senator for allowing us to submit testimony on this issue. Leaking underground storage tanks present a serious threat to public health and environmental quality. The current federal program, which most states implement through their own programs, is not inadequately addressing threats posed by underground storage tanks. Federal legislation is needed to strengthen federal and state enforcement authorities, increase the frequency of inspections, expand pollution prevention efforts, waive sovereign immunity at federal facilities, and augment existing resources to ensure that federal and state UST programs protect public health and the environment. U.S. PIRG opposes any legislation that weakens existing protections, including EPA’s authority to order the clean up of contamination.
II. LEAKING UNDERGROUND STORAGE TANKS PRESENT A
SIGNIFICANT THREAT TO PUBLIC HEALTH
Groundwater is a fundamental resource for human life and economic vitality in our nation. Fifty percent of the people in the United States use groundwater for drinking water, including virtually 100 percent of people in many rural areas.[1] In 29 states, over 50 percent of the population rely on ground water for drinking water.[2]
Leaking underground storage tanks present significant risks to groundwater quality, and therefore to human health, environmental quality, and economic growth. To address the risks posed by leaking underground storage tanks, Congress amended the Resources Conservation and Recovery Act in 1982 to create a program that would clean up contamination related to underground storage tanks, and prevent future contamination. Despite Congress’s creation of the UST program, leaking underground storage tanks continue to present serious threats to public health and the environment.
As of February 28, 1999, there were about 390,000 releases from regulated underground storage tanks.[3] These releases present serous threats to public health and environmental quality. Many state and federal agencies rank leaking underground storage tanks as the most prominent source of groundwater contamination. For example, thirty-seven states listed leaking underground storage tanks the number one “major source of groundwater contamination.”[4] EPA found that leaking underground storage tanks are one of the sources most frequently cited as being of greatest concern as a potential source of ground water contamination.[5]
Gasoline leaking from underground storage tanks is one of the most common sources of groundwater contamination.[6] Gasoline contains more than 150 chemicals, including benzene, toluene, and automotive gasolineylene.[7] Benzene is a recognized carcinogen, and reproductive and developmental toxicant.[8] Toluene is a recognized developmental toxicant, and is suspected of also adversely impacting the cardiovascular, immune, respiratory, and reproductive systems.[9] These chemicals, and many other held in underground storage tanks threaten public health.
A. Many States That Depend On Groundwater For Drinking Water Have A High Number Of Leaking Tanks
EPA has ranked states based on the number of confirmed releases from underground storage tanks.[10] EPA ranked states in three tiers: 1) Tier One included states with 10,001 to 34,000 confirmed releases; 2) Tier Two included states with 5,001 and 10,000 confirmed releases; and 3) Tier Three included state with 0 to 5,000 confirmed releases. As will be discussed later, these numbers could be an underestimate due to inadequate inspections.
Fifty-six percent of the states have over 5,001 confirmed releases. There are twelve states ranked as “Tier One”, in nine of these states, over 40 percent of the population get drinking water from groundwater. Eighty-two percent of states ranked as Tier One or Two (23 of 28 states) use groundwater as a source of drinking water for over 40 percent of their population. This data paints a very troubling picture, and highlights the need for increasing protections against existing and potential sources of contamination from underground storage tanks.
III. STATES ARE FAILING TO COMPLY WITH
REQUIREMENTS TO PROTECT PUBLIC HEALTH AND THE ENVIRONMENT
In May 2001, the General Accounting Office published a report to Congress examining state and federal Underground Storage Tank programs.[11] GAO concluded that these programs were in need of reforms to ensure that underground storage tanks were adequately regulated to protect public health and environmental quality.
A. GAO Conclusions
GAO reached nine specific conclusions. In general, these conclusions demonstrate that Underground Storage Tank programs are of widely varying quality, with many inadequately protecting public health and environmental quality. GAO’s conclusions demonstrate a serious need to significantly increase EPA’s ability to enforce federal requirements for tanks, and to take other steps to increase the thoroughness and frequency of inspections.
States
Ranked By Confirmed Releases From Underground Storage
Tanks
GAO’s specific conclusion included the following:
1) About 30 percent of the regulated tanks (over 200,000) “were not being operated or maintained properly, increasing the risk of soil and groundwater contamination.”[12]
2) Operation and maintenance problems were largely a result every person who comes into contact with the tank, including tank owners, installers, operators and removers, being poorly trained.[13]
3) EPA and state compliance data for tanks is unreliable because states and several EPA regions do not physically inspect all tanks for compliance, but rather, merely estimate compliance rates based on inspections of selected tanks or owners’ self-certifications.[14]
4) An estimated 76,000 empty or inactive tanks may still pose threats to human health and environmental quality and therefore should be inspected and removed when merited.[15]
5) Five states reported that at least half of their non-upgraded tanks are still in use.[16]
6) Fourteen states reported some upgraded tanks still leaked, and 20 did not know whether their tanks leaked.[17]
7) A California study found that tanks with upgraded equipment do not provide complete protections against leaks, and that monitoring systems cannot guarantee to detect leaks.[18]
8) Twenty-seven states and EPA lacked the authority to use the most effective enforcement tool to ensure compliance with protections: prohibiting fuel deliveries to non-compliant tanks.[19]
9) Forty-seven states needed additional resources to adequately enforce the protections.[20]
B. GAO Recommendations to EPA
GAO made four specific recommendations to correct some of the deficiencies noted in their report. First, GAO recommended that EPA work with states to determine which empty or inactive tanks pose the greatest potential health and environmental risks.[21] This should include setting up timetables for owners, states or EPA to remove or close these tanks in compliance with federal requirements and taking enforcement action against entities that continue to operate tanks without required equipment.[22] Second, GAO recommended that EPA increase their training and support capacities for states.[23] Third, GAO recommended that EPA negotiate with states to determine a minimum frequency for physical inspection of all tanks.[24] Fourth, GAO recommended that EPA tell Congress how much additional resources are needed to ensure tanks comply with federal requirements.[25]
C. GAO Recommendations to Congress
GAO also made two broad recommendations to Congress. First, GAO recommended that Congress want to consider increasing resources to the program.[26] Second, GAO recommended that Congress may want to authorize federal requirements for physical inspection of tanks on a regular basis; prohibitions on the delivery of fuel to tanks that are out of compliance with federal requirements; and states to prohibit fuel deliveries under similar circumstances.[27]
IV. S. 1850 SHOULD BETTER ADDRESS THREATS TO
PUBLIC HEALTH FROM LEAKING TANKS
U.S. PIRG has reviewed S.1850, the “Underground Storage Tank Compliance Act of 2001.” U.S. PIRG agrees with the need to increase compliance with protections for public health and environmental quality related to underground storage tanks. However, we believe that S. 1850 should be substantially strengthen in fifteen ways, consistent with the GAO’s finding and good public policy respecting public health and environmental quality. Further, in several key respects, S. 1850 could weaken protections. Therefore, as elaborate below, U.S. PIRG suggests the following modifications to S. 1850.
A. Owners and Operators Should Be Liable For All Corrective Action Costs
U.S. PIRG supports the polluter pays principle, which holds that polluters should pay to clean up their contamination. S.1850 could relieve owners and operators of underground storage tanks of their responsibility to compensate the government for money expended to clean up contamination from tanks.[28] Therefore, U.S. PIRG opposes this provision of S.1850.
U.S. PIRG urges Congress to ensure that owners and operators are held liable for the full cleanup costs incurred by government agencies. If owners and operators could not pay off the entire amount, then they should be allowed to pay off these costs little by little. To accomplish this goal, this current section should be modified to allow EPA and states to work out payment plans with owners and operators that can demonstrate that they cannot pay the full costs of cleanup activities.
B. Congress Should Encourage States To Fund Their Programs Using The Polluter Pays Principle
U.S. PIRG urges Congress to encourage states to create programs that shift program costs to entities that use regulated underground storage tanks. We suggest that Congress incorporate this incentive by setting aside a percentage of the funds that can be distributed only to states that have shifted costs onto such entities. This would conserve trust fund resources and place the costs of state programs on state entities that are being regulated.
C. Congress Should Require State and Local To Enforce Requirements That Provide Equal Or Greater Protection As Federal Requirements
U.S. PIRG urges Congress to ensure that state and local entities implement and enforce requirements that provide an equal or greater level of protection as federal requirements.[29] Leaking underground storage tanks represent a serious threat to public health and environmental quality. This addition would help ensure that state and local enforcement officials work to implement and enforce strong protections against contamination from these tanks.
D. EPA Should Not Have To Discuss Reallocation With Tank Owners and Operators
U.S. PIRG does not believe that EPA should have to consult with tank owners and operators prior revising the reallocating process.[30] The decision to reallocate funds should be based on protecting public health and environmental quality. EPA could reasonably consult with states that have knowledge about program needs related to this issue. However, owners and operators of tanks could have more parochial interests. Therefore, EPA should not be required to consult with these entities.
E. U.S. PIRG Opposes S. 1850’s Prohibition On Cost Recovery
U.S. PIRG supports the polluter pays principle, which holds that polluters should pay to clean up their contamination. Consequently, U.S. PIRG opposes S.1850’s prohibition on cost recovery.[31] Congress should encourage—not prohibit—EPA from undertaking cost recovery actions against owners and operators for clean up activities related to contamination from leaking underground storage tanks.
F. Congress Should Strengthen S. 1850’s Inspection Requirements
G. Congress Should Require Community Involvement In Operator Training Procedures
U.S. PIRG urges Congress to incorporate community members into the decision-making process related to operator trainings.[32] Many community groups have technical and practical experience with appropriate activities related to operating and maintaining underground storage tanks. Congress should require federal and state agencies to utilize this knowledge where it is available.
H. Congress Should Require State Guidelines To Consider The Importance Of State Groundwater Resource
U.S. PIRG urges Congress to require states to consider the potential risks posed by leaking underground storage tanks to groundwater quality and quantity, and the potential future importance of groundwater for the state in developing guidelines and strategies for training operators.[33] This could help to increase the preventative nature of training. U.S. PIRG suggests that Congress add the following language to S.1850 in the relevant sections, “The importance of high quality groundwater and the need to emphasize preventing contamination.”
I. Congress Should Not Limit EPA’s Authority To Issue Administrative Orders
U.S. PIRG opposes the constraints on EPA’s authority to issue orders to clean up contamination contained in S. 1850.[34] Congress should not restrict in any way EPA’s authority to protect public health and environmental quality. However, the language contained in S. 1850 could be interpreted in this fashion. Therefore, Congress should clarify its intent that EPA should not be restricted in any way from issuing clean up orders when there may be a threat to public health or environmental quality.
Conversely, Congress should encourage EPA and the states to heavily fine repeat violators of protections for public health and the environment. Therefore, U.S. PIRG agrees that Congress should direct EPA to consider whether owners and operators of tanks and transporters of fuel have repeatedly violated such protections. U.S. PIRG also urges Congress to clarify that EPA should consider such past actions, or activities that are inconsistent with established training programs, as a rationale to increase the gravity of fines. Of course, at a minimum, EPA should collect any economic gain resulting from the violation and assess a penalty adequate to ensure the entity will not again violate any requirements.
J. Congress Should Make Authority To Prohibit Fuel Shipments, Operator Training Requirements, and Inspection Provisions Self-Effecting
U.S. PIRG urges Congress to make critical enforcement tools and preventative measures self-effecting, so that this is no ambiguity or delay in their use. In particular, Congress should clarify that EPA and state authorities can prohibit fuel shipments to tanks that are out of compliance upon S. 1850 date of enactment. [35] Similarly, Congress should state that S.1850’s operator training requirements[36] and inspection provisions[37] are also unambiguously enforceable. This would ensure that EPA and states could protect public health and environmental quality despite any delay in promulgating regulations.
K. Congress Should Require More Specific Data
U.S. PIRG supports S. 1850’s requirement for a database on issues related to underground storage tanks. However, we urge the Congress to incorporate requirements that state collect and also make publicly available information on the owners and operators of all underground storage tanks. Providing the public with information about polluters is a proven, low-cost method to increase compliance and decrease pollution. S.1850 should incorporate the principle of right-to-know by requiring the collection and dissemination of such information.
L. EPA Should Develop Uniform Guidelines For State Databases
U.S. PIRG supports S. 1850’s requirement that states make information related to underground storage tanks available to the public electronically.[38] U.S. PIRG urges Congress to require EPA to develop software that states use to supply such information. This would make state databases readily comparable, which could aid enforcement efforts and facilitate the public’s right-to-know about potential sources of contamination in their communities.
M. Congress Should Unambiguously Waive Federal Sovereign Immunity
U.S. PIRG urges Congress to unambiguously waive sovereign immunity for federal agencies that own or operate underground storage tanks.[39] Federal facilities should not be above the law. If their actions threaten public health and environmental quality, then EPA and states should be able to fine these agencies. Courts are loath to find such waivers absent an unambiguous statement from Congress. Therefore, Congress should amend S. 1850 to incorporate an unambiguous waiver of sovereign immunity.
N. Congress Should Increase The Authorization Of Appropriations
U.S. PIRG supports an increase in the authorization of appropriations for the leaking underground storage tank program. GAO recommended that Congress consider increasing resources to the program. However, S. 1850 currently proposes declining authorizations.[40] This is contrary to GAO’s recommendations and sends the wrong signal regarding the need to address severe deficiencies in a regulatory program charged with protecting public health, environmental quality, and economic growth from a significant threat. Therefore, U.S. PIRG recommends that Congress direct EPA to spend unused funds currently in the trust fund and then increases authorized appropriations consistent with program needs.
O. Congress Should Direct Federal Entities And States To Comprehensively Assess The Adequacy Of Financial Responsibility Mechanisms
U.S. PIRG urges Congress to require a comprehensive review of the adequacies of financial responsibility mechanisms. There is data demonstrating that facilities that have a requirement to maintain similar financial responsibility requirements under other programs may not be adequately complying with such requirements, and that such requirements may be inadequate to protect public health.[41] Given the threats posed by leaking underground storage tanks, U.S. PIRG believes that Congress should study and problems and direct appropriate steps to taken to ensure tank owners and operators can cover the clean up costs associated with leaking underground storage tanks.
V.
CONCLUSION: CONGRESS SHOULD
INCREASE—NOW WEAKEN—PROTECTIONS AT LEAKING UNDERGROUND STORAGE TANKS
Leaking underground storage tanks are a serious threat to public health and environmental quality demanding immediate Congressional attention. Congress should act to increase, not weaken, protections. As discussed above, S. 1850 contains provisions that would weaken protections. U.S. PIRG opposes any such weakening of protections for public health. U.S. PIRG believes that if Congress incorporates the suggestions outlined above and then enacts the legislation, Congress will have taken a significant step towards addressing the risks posed by leaking underground storage tanks.
U.S. PIRG thanks the Senate Environment and Public Works for providing an opportunity to testify on this important issue and legislation.
Sincerely,
Grant Cope
Staff Attorney