Leaking Underground Storage Tanks (USTs): Prevention and Cleanup

Leaking Underground Storage Tanks (USTs):
Prevention and Cleanup
Mary Tiemann
Specialist in Environmental Policy
Resources, Science, and Industry Division
Summary
To address a nationwide water pollution problem caused by leaking underground
storage tanks (USTs), Congress created a leak prevention, detection, and cleanup
program in 1984. In 1986, Congress established the Leaking Underground Storage Tank
(LUST) Trust Fund to help the Environmental Protection Agency (EPA) and states to
remediate leaking petroleum USTs where owners failed to do so, and to oversee LUST
cleanup activities by responsible parties. Despite much progress in the program,
challenges have remained. A key issue has been that state resources have not met the
demands of administering the UST leak prevention program. States have long sought
larger appropriations from the trust fund to support the LUST cleanup program, and
some also sought flexibility to use fund resources to administer and enforce the UST
leak prevention program. Another issue has concerned the detection of methyl tertiary
butyl ether (MTBE) in groundwater at many LUST sites and in water supplies. This gas
additive was used widely to meet Clean Air Act requirements to reduce auto emissions.
However, MTBE is very water-soluble, and, once released, it is more likely to reach
water supplies and often is more costly to remediate than conventional gas leaks.
In the Energy Policy Act of 2005 (P.L. 109-58), the 109^th Congress expanded the
leak prevention provisions in the UST program, imposed new program responsibilities
on EPA and states, and authorized use of the LUST Trust Fund for prevention as well
as cleanup activities. In the Energy Independence and Security Act of 2007 (P.L. 110-
140), the 110^th Congress amended the Clean Air Act to authorize EPA to regulate fuels
and fuel additives for the purpose of protecting water quality, as well as air quality. This
report reviews the LUST program and related issues and developments.
Background
In the 1980s, EPA determined that many of the roughly 2.2 million underground
storage tanks (USTs) in the United States, most of them storing petroleum, were leaking.
Many other tanks were nearing the end of their useful life expectancy and were expected
to leak in the near future. Approximately 50% of the U.S. population relies on ground

water for their drinking water, and states were reporting that leaking underground tanks
were the leading source of groundwater contamination.
In 1984, Congress responded to this environmental and safety threat and established
a leak prevention, detection, and cleanup program for USTs containing chemicals or
petroleum through amendments to the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.,
also known as the Resource Conservation and Recovery Act (RCRA)). Subtitle I directed
EPA to establish operating requirements and technical standards for tank design and
installation, leak detection, spill and overfill control, corrective action, and tank closure.
The universe of regulated tanks was extremely large and diverse, and included many small
businesses. Consequently, EPA phased in the tank regulations over a 10-year period (1988
through 1998). Strict standards for new tanks took effect in 1988, and all tanks were
required to comply with leak detection regulations by late 1993. All tanks installed before
1988 had to be upgraded (with spill, overfill, and corrosion protection), replaced, or
closed by December 22, 1998.
In 1986, Congress established a response program for leaking petroleum USTs
through the Superfund Amendments and Reauthorization Act (P.L. 99-499), which
amended RCRA Subtitle I. The amendments authorized EPA and states to respond to
petroleum spills and leaks, and created the Leaking Underground Storage Tank (LUST)
Trust Fund to help EPA and states cover the costs of responding to leaking USTs in cases
where UST owners or operators do not clean up a site. EPA and the states have used the
annual LUST Trust Fund appropriation mainly to oversee and enforce corrective actions
performed by responsible parties. They also use the funds to conduct corrective actions
where no responsible party has been identified, where a responsible party fails to comply
with a cleanup order, in the event of an emergency, and to take cost recovery actions
against parties. EPA and states have been successful in getting responsible parties to
perform most cleanups. In these cases, the cleanup costs typically have been paid for by
a state fund (discussed below), the responsible party, and/or private insurance.
State Funds. The 1986 law also directed EPA to establish financial responsibility
requirements to ensure that UST owners and operators are able to cover the costs of
taking corrective action and compensating third parties for injuries and property damage
caused by leaking tanks. As mandated, EPA issued regulations requiring most tank
owners and operators selling petroleum products to demonstrate a minimum financial
responsibility of $1 million. Alternatively, owners and operators could rely on state
assurance funds to demonstrate financial responsibility, saving them the cost of
purchasing private insurance. Most states established financial assurance funds. Unlike
the federal LUST Trust Fund, state funds often are used to reimburse financially solvent
tank owners and operators for some or all of the costs of remediating leaking tank sites.
Revenues for state funds typically have been generated through gas taxes and tank fees
and, collectively, these funds have provided more cleanup funds than the LUST Trust
Fund. A June 2007 survey of states showed that, cumulatively, states had collected and
spent roughly $15.45 billion through their funds. During 2007, state funds collected $1.5
billion in annual revenues and paid out a total of $1.01 billion, while outstanding claims
against state funds reached $2.68 billion, up from $1.32 billion in 2006. The number of
sites with claims increased from 143,827 in 2004 to 162,699 in 2007. While 10 states had
made a transition to private insurance, 20 states had extended their fund’s original sunset
date to address the backlog of leaking tanks. (See the 2007 State Financial Assurance
Funds Survey at [http://www.astswmo.org].)

LUST Trust Fund: Funding and Uses
The LUST Trust Fund is funded primarily through a 0.1 cent-per-gallon motor fuels
tax that began in 1987. The Energy Policy Act of 2005 (P.L. 109-58, H.R. 6) extended the
tax through March 2011. During FY2008, the tax generated roughly $173.26 million in
revenue (down from $228.26 million in FY2007). The trust fund earned another $127.34
million in interest, for an estimated revenue total of $300.6 million for the fiscal year. At
the end of FY2008, the trust fund’s net assets were $3.21 billion (preliminary estimate).
EPA roughly estimates that the average cost of cleaning up a leaking tank site is
$125,000, and through March 2008, 106,577 releases still required remediation. Although
EPA expects that private parties will pay for most cleanups, in 2007, states estimated that
$12 billion was needed to remediate at least 54,000 tank sites that lack viable owners.¹
In recent years, Congress has appropriated approximately $72 million annually from
the trust fund to support the LUST response program. In the Consolidated Appropriations
Act, 2008 (P.L. 110-161), Congress provided $105.8 million from the fund, including
roughly $72 million for the cleanup program and also $33.8 million for the UST leak
prevention program, reflecting the newly authorized uses of the trust fund under the
Energy Policy Act. For FY2009, as previously, the President requested funding from the
trust fund only to support the LUST cleanup program ($72.3 million). Funding for the
UST leak prevention program was requested from general revenue funds.
EPA typically has allocated approximately 81% (roughly $58 million) of the annual
trust fund appropriation to the states in the form of cooperative agreements, and 4% to
support LUST-eligible activities on Indian lands. EPA has used the remaining 15% for
its program responsibilities. The Energy Policy Act of 2005 (P.L. 109-58, §1522)
specified that EPA must allot at least 80% of the LUST Trust Fund appropriation to the
states. Under cooperative agreements with EPA, the states receive grants to help cover the
cost of administering the LUST program. States have used most of their LUST program
grants to hire staff for technical oversight of corrective actions performed by responsible
parties. Typically, they have used about one-third of the LUST money they received for
cleaning up abandoned tank sites and undertaking emergency responses.
EPA uses its portion of the appropriation to oversee cooperative agreements with
states, implement the LUST corrective action program on Indian lands, and support state
and regional offices. EPA priorities in the LUST program have included reducing the
backlog of confirmed releases; promoting better and less expensive cleanups; providing
assistance to Indian tribes; assisting with the cleanup of more complicated sites, especially
sites contaminated with MTBE; and implementing the Energy Policy Act provisions.
Program Accomplishments and Issues
EPA reports that since the federal underground storage tank program began, more
than 1.68 million of the roughly 2.2 million petroleum tanks subject to regulation have
been closed and, overall, the frequency and severity of leaks from UST systems have been

¹ Government Accountability Office, Leaking Underground Storage Tanks: EPA Should Take
Steps to Better Ensure the Effective Use of Public Funding for Cleanups, GAO-07-152, 2007.

reduced significantly. As of March 31, 2008, 625,534 tanks remained in service and
subject to UST regulations, 478,457 releases had been confirmed, and 453,065 cleanups
had been initiated. Nearly 78% (371,880) of all reported releases had been cleaned up, and
the backlog of sites requiring remedial action dropped to 106,577 sites. In FY2007, 7,570
releases were newly confirmed, and 13,862 corrective actions completed. In the first half
of FY2008, 3,294 releases were confirmed, and nearly 6,000 cleanups were completed.²
Methyl Tertiary Butyl Ether (MTBE). In the 1990s, as states and EPA were
making solid progress in addressing tank leaks, a new problem emerged. The gasoline
additive MTBE was being detected at thousands of LUST sites and in numerous drinking
water supplies, usually at low levels. Gasoline refiners had relied heavily on MTBE to
produce gasoline that contained oxygenates, as required by the 1990 Clean Air Act
Amendments as a way to improve combustion and reduce mobile source emissions. Once
released into the environment, however, MTBE moves through soil and into water more
rapidly than other gasoline components. Because of its mobility, MTBE is more likely to
reach drinking water supplies, and it often is more difficult and costly to remediate than
conventional gasoline. Although MTBE is thought to be less toxic than some gasoline
components (such as benzene), even small amounts can render water undrinkable because
of its strong taste and odor. Also, in 1993, EPA’s Office of Research and Development
concluded that the data support classifying MTBE as a possible human carcinogen.³
Although EPA has not done so, at least seven states have set drinking water standards for
MTBE, and many states have established cleanup standards or guidelines. At least 25
states have enacted limits or bans on the use of MTBE in gasoline.
At least 42 states require testing for MTBE in ground water at LUST sites. In a 2000
survey, 31states reported that MTBE was found in ground water at 40% or more of LUST
sites in their states; 24 states reported MTBE at 60% to 100% of sites. An update of this
survey found that many sites had not been tested for MTBE and that most states did not
plan to reopen closed sites to look for MTBE.
Implementation and Compliance Issues. EPA estimated that by FY2001, 89%
of USTs had upgraded tank equipment to meet federal requirements. However, the
Government Accountability Office (GAO) reported that because of poor training of tank
owners, operators, and other personnel, about 200,000 (29%) USTs were not being
operated or maintained properly, thus increasing the risk of leaks and ground water
contamination. GAO also reported that only 19 states physically inspected all their tanks
every three years (the minimum EPA considered necessary for effective tank monitoring)
and that, consequently, EPA and states lacked the information needed to evaluate the
effectiveness of the tank program and take appropriate enforcement actions.⁴ Among its
initiatives to improve compliance, EPA revised the definition of compliance (“significant
operational compliance”) to place greater emphasis on the proper operation and

² For state-by-state information, see [http://www.epa.gov/oust/cat/camarchv.htm].
³ U.S. Environmental Protection Agency, Assessment of Potential Health Risks of Gasoline
Oxygenated with Methyl Tertiary Butyl Ether (MTBE), EPA/600/R-93/206, 1993.
⁴ U.S. GAO, Environmental Protection: Improved Inspections and Enforcement Would Better
Ensure the Safety of Underground Storage Tanks, GAO-01-464, May 2001, pp. 2-6. Also see
Environmental Protection: More Complete Data and Continued Emphasis on Leak Prevention
Could Improve EPA’s Underground Storage Tank Program, GAO-06-45, November 2005.

maintenance of tank equipment and systems. In June 2008, EPA reported that,
nationwide, 77% of recently inspected UST facilities were in compliance with the release
prevention regulations, 73% were in compliance with the leak detection regulations, and

65% of facilities had complied with the combined requirements.

Legislation
The 109^th Congress addressed LUST and MTBE contamination issues in the Energy
Policy Act of 2005 (EPAct, P.L. 109-58, H.R. 6). The act revised the UST leak prevention
and cleanup programs (Title XV, Subtitle B) and extended the 0.1 cent-per-gallon motor
fuels tax that finances the LUST Trust Fund through March 2011 (§ 1362).
MTBE in the Energy Policy Act of 2005. The House version of H.R. 6 had
included a retroactive safe harbor provision to protect manufacturers and distributors of
fuels containing MTBE or renewable fuels from product liability claims. This provision
was opposed by water utilities, local government associations, and many states.
Opponents argued that providing a liability shield would effectively leave gas station
owners liable for cleanup, and as these businesses often have few resources, the effect of
the provision would have been that the burden for cleanup would fall to local
communities, water utilities, and the states. Proponents argued that a safe harbor was
merited because MTBE was used heavily to meet federal clean air mandates. They further
argued that the focus should be placed on preventing leaks from USTs, which have been
the main source of MTBE contamination. (For more information on LUST and MTBE
provisions in P.L. 109-58, see CRS Report RL32865, Renewable Fuels and MTBE: A
Comparison of Selected Provisions in the Energy Policy Act of 2005 (P.L. 109-58 and
H.R. 6), by Brent D. Yacobucci, et al.) Ultimately, the conferees dropped the safe harbor
provision and dropped a provision to ban MTBE. Additionally, P.L. 109-58 repealed the
Clean Air Act oxygenated fuel requirement that had prompted extensive use of MTBE.
Underground Storage Tank Compliance Act. Title XV, Subtitle B, of EPAct
comprised the Underground Storage Tank Compliance Act (USTCA). The USTCA
amended RCRA Subtitle I to add new leak prevention and enforcement provisions to the
UST regulatory program and imposed new requirements on states, EPA, and tank owners.
The USTCA requires EPA, and states that receive funding under Subtitle I, to conduct
compliance inspections of tanks at least once every three years. It also requires states to
comply with EPA guidance prohibiting fuel delivery to ineligible tanks, to develop
training requirements for UST operators and individuals responsible for tank maintenance
and spill response, and to prepare compliance reports on government-owned tanks in the
state. Further, to protect groundwater, states must require either that new tanks located
near drinking water wells are equipped with secondary containment, or that UST
manufacturers and installers maintain evidence of financial responsibility to provide for
the costs of corrective actions. (USTCA implementation information and documents are
available online at [http://www.epa.gov/oust/fedlaws/epact_05.htm].)
The USTCA authorized the appropriation of $155 million annually for FY2006
through FY2011 from the LUST Trust Fund for states to use to implement new and
existing UST leak prevention requirements and to administer state programs. For cleanup
purposes, the USTCA authorized trust fund appropriations of $200 million annually for
FY2006 through FY2011 for EPA and states to administer the LUST cleanup program,

and another $200 million annually for FY2006 through FY2011, specifically for
addressing MTBE and other oxygenated fuels leaks (e.g., ethanol).
The 110^th Congress. To increase state program resources and facilitate cleanups,
Congress provided the new funding authorities under EPAct (including the authority to
use the LUST Trust Fund for prevention activities in addition to cleanup activities).
Nonetheless, trust fund requests have remained at roughly $72 million. For FY2008, the
President requested $72.4 million from the LUST Trust Fund for cleanup activities, and
another $22.3 million from general revenues through the State and Tribal Assistance
Grants (STAG) account to support leak prevention activities. The Senate Committee on
Appropriations similarly recommended cleanup funding from the trust fund and
prevention funding from the STAG account (S.Rept. 110-91). In contrast, the House
report for EPA’s FY2008 funding bill, H.R. 2643 (H.Rept. 110-187) noted that the EPAct
authorized the prevention grants to be funded from the LUST Trust Fund. The House
combined the funding to reflect the broad uses of the trust fund authorized by EPAct. The
House-passed bill approved $117.9 million from the trust fund for cleanup and leak
prevention (including tank inspection) activities. This amount included $10 million more
than requested for LUST cooperative agreements, and $15.7 million more for state UST
grants authorized by EPAct (which, when combined with the funds moved from the
STAG account, would have provided a total of $35.5 million for prevention activities).
Noting this increase in UST funding, the House rejected EPA’s request that Congress
revise the state inspection requirements under EPAct. The Consolidated Appropriations
Act, 2008, followed the House approach and provided a total of $105.8 million from the
Trust Fund to support both UST and LUST programs.
For FY2009, EPA requested $72.3 million from the trust fund for the LUST cleanup
program. EPA also requested $22.8 million under the STAG account to help states meet
new EPAct responsibilities, including 1) triennial tank inspections, 2) operator training,
3) prohibition of delivery to non-complying tanks, and 4) secondary containment or
financial responsibility for tank manufacturers and installers. In an effort to reduce EPAct
costs to states, EPA submitted legislative language to allow states to use alternative
mechanisms to meet the inspection mandate. Congress did not consider specific EPA
appropriations; rather, the consolidated appropriations act for FY2009 (P.L. 110-329)
generally extended funding for EPA programs at FY2008 levels through March 6, 2009.
An emerging UST issue concerns the impact that biofuels may have on storage tank
infrastructure. Ethanol, for example, is more corrosive than gasoline, thus increasing the
risk of leaks in tank systems. The renewable fuel mandates in the Energy Policy Act and
the Energy Independence and Security Act of 2007 (EISA, P.L. 110-140) present new
technical issues for USTs and for fuel storage and delivery infrastructure, generally. To
address this issue, the House passed H.R. 547 (H.Rept. 110-7) to require EPA to establish
a research and develop program on materials that could be added to biofuels to make them
more compatible with existing infrastructure used to store and deliver petroleum-based
fuels. The Senate did not act on this bill. In an effort to prevent or address any water
quality problems that might result from the use of biofuels (such as those experienced
with MTBE use), EISA amended section 211(c) of the Clean Air Act to allow EPA to
regulate fuels and fuel additives to protect water quality, as well as air quality. (For
further discussion of biofuels issues, see CRS Report RL33928, Ethanol and Biofuels:
Agriculture, Infrastructure, and Market Constraints Related to Expanded Production, by
Brent Yacobucci and Randy Schnepf.)