Leaking Underground Storage Tanks: EPA Should Take Steps to Better Ensure the Effective Use of Public Funding for Cleanups

The Energy Policy Act of 2005 requires EPA or states, as appropriate, to conduct on-site inspections of USTs every three years to determine compliance with requirements imposed by Subtitle I of the Solid Waste Disposal Act. In April of 2007, EPA issued a grant guideline to states for implementing the inspection provisions of the EPAct. This guideline requires, as a condition of funding, that states conduct on-site inspections of all regulated underground storage tanks that have not been permanently closed at least once every three years. In addition, the guideline specifies the minimum criteria that states must use when conducting the on-site inspection. One of these criteria is to assess compliance with financial responsibility. By requiring this, EPA is ensuring that states are verifying, on a regular basis, that tank owners and operators are maintaining adequate financial responsibility.

In response to our recommendation, EPA developed its "Guidance for Regional Office Review of State Underground Storage Tank Financial Assurance Funds," which was finalized in January 2012. This guidance provides EPA regions with recommended procedures and factors to consider for monitoring the soundness of these funds. The guidance instructs EPA regions to perform an annual review of state funds to achieve the goal of helping to ensure the adequacy of state funds.

Late this summer(2011), the Office of Underground Storage Tanks (OUST) will complete its study of the nation's backlog of open, unaddressed releases from leaking underground storage tanks. The study has sought detailed information from 14 states to understand characteristics of open releases within these states and the pace of LUST cleanups. As part of this study, the Agency sought, where possible, to examine differences in the pace of cleanups comparing releases with different types of financial responsibility mechanisms. Unfortunately, detailed data exploring different financial mechanisms was not readily available, especially with respect to privately funded cleanups, although limited data identified differences in the age of release and stage of cleanup. In addition, EPA has recently released a draft study of private insurance. This study sought to understand how insurance policies address claims and where behaviors by either owner/operators or insurance companies might leave gaps in coverage and delay cleanups. The study concluded that for the insurance policies examined, they generally complied with regulatory requirements and given limited information, insurance carriers did not appear to be excessively or dismissively denying claims. This study also identified several opportunities for improvement.

EPA continues to pursue quality control on the information it collects to support its distribution of program resources to States. While discussions with Regions and states to clarify definitions of reported measures have been on-going, the implementation of the Recovery Act and the adoption of certain existing measures for that purpose (i.e., cleanups initiated and cleanups completed) have led to an enhanced vigilance in the accuracy of such performance measures. Such oversight and improvements in quality control are reflected in the lessons learned memorandum issued over these past two years. In addition, EPA has implemented a new on-line tool to collect reports from states and EPA regions on performance measures. This new tool has streamlined the reporting process, enabling EPA regional and headquarters staff to focus more quickly and effectively on quality control issues associated with submitted data. Finally, as part of the Office of Underground Storage Tanks (OUST) backlog characterization study and associated conversations with states, EPA has emphasized the demarcation and reporting of the federally regulated underground storage tank universe and sought information on sites without a viable owner (i.e., orphaned or abandoned). The Agency has also emphasized the distinction between the federal regulated universe and other entities covered by state programs in its draft fund soundness guidance. With respect to information on abandoned sites, the Agency found that such information was often unavailable or the state indicated it was unreliable. The Agency notes that since state programs are delegated, states that report abandoned tanks have differing definitions of "abandoned" and differing processes for making this determination. This information is important to understand the ability of the state to address such cleanups and EPA continues to discuss this sub-universe of sites with states as part of its on-going programmatic oversight.