EPA asked for comments on a variety of topics, including the extent to which tank owners may not know the specific [image-nocss] components of their systems. On December 17, NACS and SIGMA submitted comments (click here) to OUST regarding the legal, environmental and practical obstacles for storing and dispensing E15. While the Proposed Guidance is "a very helpful step toward achieving our shared goals" of overcoming obstacles preventing retailers from selling new fuels, NACS believes that the proposed guidelines do not satisfy many existing laws and regulations.
"Unlike E10, underground storage tank system owners are generally unaware if their equipment is compatible with E15. When combined with the fact that independent testing laboratories are unwilling to retroactively certify legacy equipment for E15 compliance, OUST's proposed methods for demonstrating compatibility are of limited significance. Further testing of UST owners' current equipment is necessary to overcome these obstacles, as it would provide them with compatibility information that is currently unavailable."
NACS continued that if retailers were to store E15 in systems that are not certified as compatible with that fuel, they could expose themselves to a multitude legal difficulties, which could threaten the future of their businesses.
Absent certification, retailers could be held in violation of: State underground storage tank regulations that require UL certification (Massachusetts, for instance, has already announced that storing E15 in a legacy tank will not be permissible); Occupational Safety& Health Act regulations; State underground storage tank insurance policies; Local fire codes; and The terms of their mortgage or other loan agreements, which routinely include compliance-with-law provisions. Moreover, storing E15 blends (and the attendant environmental risks) could expose retailers to a range of state-based common law tort liabilities, such as gross negligence and defective product theories. Lawsuits filed with such claims frequently escalate into class actions, the costs of which no average retailer could ever afford.
NACS concluded that the three methods proposed by EPA for demonstrating UST compatibility must go further. NACS suggested the following improvements to the current proposal: Equipment Compatibility. EPA should conduct comprehensive testing of all classes of USTs to determine their compatibility with E15. By defining the universe of compatible equipment, EPA can greatly assist retailers' efforts to determine if their systems are compatible with E15. Equipment Records, Retroactive. Because many retailers may not know what specific equipment they have underground and are therefore unable to verify its compatibility with E15, EPA should develop a mechanism by which UST owners can obtain manufacturers' sales and installation records. Such data should be kept by EPA and released only to retailers who own the equipment at a particular location. Equipment Records, Prospective. EPA should begin mandating the transfer of all relevant equipment documents upon the sale of a facility and require tank owners to maintain such records and present them to the purchaser upon request. This will begin to establish a knowledge base that will benefit retailers in a number of ways. Legislation. Because the proposed guidance will not have the force of law to protect retailers from the variety of legal consequences associated with equipment compatibility, NACS urges EPA to aggressively advocate for legislation, such as H.R. 5778 the Renewable Fuels Marketing Act, which provide some retailers with greater regulatory and legal certainty.
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