June 20, 2017
As of this writing, there are less than two months left before all single-walled steel underground storage tanks (USTs) are officially banned from operating in the Commonwealth of Massachusetts. For those that may have missed the numerous announcements since 2008, the last day you can operate a single walled-UST in this state is August 7, 2017.
The Massachusetts Department of Environmental Protection (MassDEP) has been actively targeting this population of UST owners for quite some time. At this juncture, there appears to be about 240 facilities that have yet to remove their single-walled steel USTs.
Recognizing that there will be a contractor supply and demand problem, MassDEP has instituted a few allowances for those facilities that still have single-walled steel tanks on August 7, 2017. Most notably, MassDEP will exercise enforcement discretion if an owner takes their single-walled USTs out of service by August 7, 2017. In short, you will be considered in compliance with the deadline even if your USTs are still in the ground, as long as they are permanently taken out of service.
There are, however, a number of steps that must be followed in order to effectively achieve the out-of-service status, most notably removing all product, securing the fill pipes and submitting a Single-Walled Steel Tank “Out of Service” Notification to MassDEP. If the USTs will not be removed by August 7, 2017, a copy of an executed contract with a removal contractor must be attached to the “Out of Service” Notification. Strictly abiding by this process will enable an owner to have until July 1, 2018 to remove their USTs.
I recently attended a meeting in Cleveland with a number of state and federal UST regulators. While listening to a session on insurance underwriting procedures, I learned that the average age of a UST system in the US is approximately 28 years. Although I was initially surprised at this statistic, I must concede it does make sense. The UST regulatory changes began to take shape in the late 1980s. At that time, the shelf life of a fully compliant double-walled tank was assumed to be approximately 30 years. We are without question approaching the next phase of the UST life cycle.
Nationally, the triggering of releases seems to be during upgrades or property transfers as opposed to catastrophic occurrences. Costs in remediating releases in the latter category are exponentially higher. This pattern is no doubt owed to the stringent construction standards that have governed the industry over the last 30 years.
Single-walled steel UST owners in the Commonwealth, however, should not expect similar results. Those USTs are far likely to be well beyond 30 years old and for most, removing the USTs will expose the subsurface for the first time. As with the experiences of those that removed their USTs during the 1998 upgrade requirements, the ground beneath may prove to be a scary place.
Unlike the circa 1998 era, the Massachusetts Petroleum Product Cleanup Fund (a/k/a 21J Fund) may not be as resourceful as it was back then. The 21J Fund continues with its constant underfunding struggles. It is projected to have a funding deficit of approximately $21MM right around the time the August 7, 2017 deadline wraps up. The budget appropriation (the amount available to pay claims) for the 21J Fund for the fiscal year beginning on July 1, 2017 is projected to be around $6 million. It is not beyond the realm of possibilities that the 21J Fund’s deficit at the end of June 2018 will be well in excess of $25 million. To further complicate things, the 21J Fund has recently approved a new policy governing the disposal of contaminated soil. This policy vastly changes the definition of contaminated soils and will no doubt limit the amount of reimbursement for what typically is the greatest cost in cleaning up a site.
As I mentioned in a recent NESSARA Newsbrief article, the Fund has played an important role in cleaning up the environment in Massachusetts over the last 20 years. It also adds beneficial value to the economy by employing contractors, equipment suppliers and other vendors throughout the Commonwealth.
Now, more than ever, the 21J Fund needs the appropriate level of attention. While there have been numerous efforts and attempts by members of the stakeholder population, the pleas for fiscal harmony seem to be unanswered. In the immediate future, adequately funding the deficit backlog is of paramount importance. In the long-term, perhaps it is time to creatively establish a permanent solution to this problem. As difficult as it may seem, it might just be time to have that discussion on either sun-setting the program or requiring owners to seek financial responsibility coverage through private insurance. Whichever side you may be on, you must admit that the status quo is not working.
William Alpine is Corporate Counsel/Director of Cost Recovery for ATC Group Services, LLC (Formerly Environmental Compliance Services, Inc.). ATC provides environmental consulting, industrial hygiene, geotechnical engineering, construction-materials testing, air quality control and consulting, and leak detection and repair services with over 100 locations throughout the United States and over 1,900 employees. Bill was previously the Executive Director of the Commonwealth of Massachusetts 21J Fund. Bill can be reached at (781) 246-8897 or [email protected]
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