Dissenting Views

Energy Policy Act of 2005

Title XV, Subtitle B

Leaking Underground Storage Tank Amendments

Background

Throughout this country, states, local governments, and ratepayers face a crisis from the contamination of drinking water supplies from methyl tertiary butyl ether (MTBE) and other hazardous contaminants that are leaking from underground storage tank systems. MTBE, a fuel additive, is particularly troublesome in that it migrates quickly through the soil into groundwater and even small amounts can render the groundwater undrinkable. It is estimated by drinking water utilities that current MTBE cleanup costs alone run between $29 - $40 billion.

According to the Environmental Protection Agency (EPA) 2006 Congressional Justification and Annual Performance plan, MTBE contamination can increase cleanup costs from 25 percent to more than 100 percent. EPA reports that states face multimillion-dollar cleanup costs at sites with widespread MTBE contamination such as Santa Monica, CA, Long Island, NY, Pascoag, RI, and Hopkins, SC.

As of October 1, 2004, the backlog of sites that require remedial action was 129,828 sites. Thousands of new releases are being detected annually. In the past five years, confirmed new releases averaged 12,641 per year. EPA projects an average of 6,000 to 12,000 new releases will be reported per year over the next 10 years.

In the mid-1980s, Congress created the Leaking Underground Storage Tank (LUST) program to provide technical standards and corrective action authority for underground storage tanks. In 1986, Congress created a trust fund for the program that is replenished primarily through a one-tenth of a cent per gallon federal tax on gasoline and other fuels. The Trust Fund had a balance of $2.147 billion at the end of fiscal year 2004.

As we reach the 20th anniversary of the program, we believe that Congress must seriously strengthen the program to improve the inspection and enforcement authorities available to EPA and the states, and act to require real preventive measures to keep MTBE and other contaminants from reaching our groundwater. Groundwater is the source of drinking water for half of the Nation’s population and for virtually all people living in rural areas.

In addition, Congressional appropriations have been and continue to be seriously deficient, notwithstanding the large surplus in the Trust Fund. We are also aware that many state cleanup funds are insolvent or have stopped accepting new claims.

Despite a request from all Democratic Members of the Subcommittee on Environment and Hazardous Materials, the Committee leadership refused to hold any legislative hearings on the amendments to the leaking underground storage program contained in Subtitle B of Title XV. Committee Members were therefore denied the benefit of hearing from the state agencies and the EPA which administer and enforce the program.

EPA budget documents and state reports, however, reveal the following:

• Last year, completed cleanups nationwide declined 23 percent from 18,518 in FY2003 to 14,285 in FY2004.
  
• Last year, the Republican-controlled Congress cut the LUST appropriation by $6 million or 8 percent (from $75 million in FY2004 to $69.4 million in FY2005).
  
• Over the last five years the actual appropriation for the LUST program averaged only $72 million.
  
• Of the total annual appropriation, approximately $58 million goes to the 50 states but only $19 million is actually used to clean up leaks of MTBE or other contaminants.
  
• The Tennessee Department of Environment and Conservation reported on December 1, 2004, that “the problem facing the state is that the fund is insolvent.”
  
• The Michigan Department of Environmental Quality reported in March 2003 that there are more than 4,000 facilities that will require public funding in the amount of $1.7 billion. Michigan’s state financial assurance fund is insolvent.
  
• Eleven states – Alabama, North Carolina, Connecticut, California, Tennessee, Virginia, West Virginia, Ohio, Pennsylvania, Massachusetts, and Colorado – have state funds with outstanding claims that exceed their balance, according to a June 21, 2004, state survey.

Committee Consideration

During Committee markup Democratic Members offered four amendments to cure deficiencies in the Committee Print and improve the LUST provisions. Two of the amendments were adopted: An amendment by Representative Hilda Solis (D-CA) to eliminate a limitation on the EPA’s ability to recover federal cleanup costs from liable tank owners and operators, and an amendment by Representative Tammy Baldwin (D-WI) to improve the operator training provisions.

Two other important strengthening amendments, however, were rejected largely along partisan lines:

Inspections: Section 1523 of the bill adds a new periodic inspection requirement for underground storage tanks. If a tank, however, was last inspected in 1999, under this bill the tank may not be required to be inspected again until 2010 or 2011, because the 2-year and the 3-year deadline (with an opportunity for a one-year extension) run consecutively. This is weaker than the 2-year minimum inspection frequency recommended by the EPA and the 3-year minimum inspection requirement recommended by the Government Accountability Office.

In its June 2000 Report to Congress on a Compliance Plan for the Underground Storage Tank Program, the EPA stated:

“Inspecting every facility within two years would rapidly improve the compliance rates in many states, and continued biennial inspections would ensure continued diligence on the part of LUST owners and operators, thus increasing the probability of sustaining high compliance rates. EPA believes the two-year cycle provides the best compromise between effectiveness and practicality.”

Representative Lois Capps (D-CA) offered an amendment to require a three-year mandatory inspection requirement, which was defeated by a vote of 24 to 29.

Secondary Containment: Representative Bart Stupak (D-MI) offered an amendment to require new or replacement underground storage tank systems to be secondarily contained if they are within 1,000 feet of existing community water systems or an existing potable drinking water well or other sensitive area as determined by the EPA administrator or a state implementing agency. Under the amendment, EPA is required to issue implementing regulations or guidelines and states retain authority to establish more stringent requirements.

More than twenty states already require secondary containment in various circumstances. Many states like Texas require secondary containment for sensitive hydrogeologic formations. Secondary containment helps achieve rapid detection of leaks and prevents contamination of drinking water supplies. A recent EPA study of underground storage tank facilities in Florida found that tanks with secondary containment were four to ten times less likely to leak into the environment.

Secondary containment is not new technology or a novel concept. According to the Petroleum Equipment Institute, on average, 56 percent of all tank owners will install a secondary containment system when building a new station or upgrading an existing tank system in states that do not now require secondary containment.

During the Committee proceedings, Representative Vito Fossella (R-NY) offered a substitute amendment to the Stupak amendment. Under the substitute, the EPA Administrator must require a state to adopt secondary containment similar in scope to the Stupak amendment (except for coverage of sensitive areas) or impose financial responsibility requirements on manufacturers and installers of tanks that will require evidence of financial responsibility of at least $1 million as a minimum for each occurrence with an appropriate aggregate requirement.

Overall the Fossella amendment fails to require secondary containment and sets up a curious choice between secondary containment to prevent leaks and new financial responsibility requirements to provide costs of corrective action. We also opposed the provisions of the Fossella amendment contained in Section 1530(a)(i)(1) for failing to allow the states the flexibility to designate “sensitive areas” where secondary containment can be required to protect drinking water supplies or other sensitive ecological areas.

In addition, we opposed the provisions of the Fossella amendment contained in Section 1530 (a)(i)(2) as a recipe for litigation and delay. There is no provision that allows cleanups to go forward while disputes between tank owners and operators and manufacturers and installers are litigating. At best, unnecessary uncertainty is created in the cleanup process. Further, the Committee has no evidence before it in a legislative hearing record that manufacturers and installers bear the principal or even major responsibility for the leaking tanks. Indeed, we doubt that any manufacturer or installer anywhere in the country was aware that the Committee majority intended to subject them to such a requirement. The Fossella amendment appears to be an ill-considered effort to shift the culpability of petroleum marketers and convenience store owners with leaking tanks onto manufacturers and installers, many of whom are small business owners. The Committee adopted the Fossella amendment by a vote of 27 to 25.

We also have strong concerns about the preemptive effect of Section 1527 (adding Section 9012(a)(3)) on the 24 state laws that, according to the Government Accountability Office, already provide for fuel delivery prohibition with some form of red tag or green tag system. Section 1527 would deny federal funding to the state fuel delivery prohibition programs currently in operation.

We regret that the jurisdictional Subcommittee on Environment and Hazardous Materials did not hold a proper legislative hearing on the LUST provisions and that there were not bipartisan agreements on the important inspection, fuel delivery prohibition, and secondary containment provisions.

JOHN D. DINGELL
EDWARD J. MARKEY
SHERROD BROWN
FRANK PALLONE, JR.
HILDA L. SOLIS
ELIOT L. ENGEL
DIANA DeGETTE
LOIS CAPPS
BART STUPAK
ANNA G. ESHOO
TAMMY BALDWIN
TOM ALLEN
JIM DAVIS
JAY INSLEE
JAN SCHAKOWSKY
HENRY A. WAXMAN
EDOLPHUS TOWNS
BOBBY L. RUSH
ALBERT R. WYNN