Petrogram - Fall 2010 - (Page 15)
Mary Smallwood, GrayRobinson
Secondary Containment Standards
n 1990, the Department of Environmental Protection first adopted Rule 62-761. 510, Florida Administrative Code, establishing performance standards for Category-A and Category-B underground storage tanks. The standards put in place deadlines for these older tanks to be upgraded so that they met the standards for Category-C tanks, those installed after July 13, 1998. The last in a series of upgrades required by this rule was the installation of secondary containment for all storage tanks and small diameter piping protected from corrosion on or before June 30, 1992. The rule’s deadline for upgrading to secondary containment was December 31, 2009.
comply with the rule. Th at action typically involved the issuance of notices of violation and the execution of consent orders requiring either upgrade or closure. The consent orders also imposed penalties for failure to meet the rule deadline. However, as of the date of the 2010 Legislative Session, many tank owners and operators still had neither complied with the rule deadline nor had enforcement action instituted by the department. As a result, legislation was introduced to extend the deadline for installation of secondary containment. The Legislature responded by adopting Section 49 of CS for SB 1752, which has been signed into law by Governor Crist. In its entirety, the provision provides: The installation of fuel tank upgrades to secondary containment shall be completed by the deadlines specified in rule 62-761.510, Florida Administrative Code, Table UST. For fuel service station facilities that have orders issued by the Department of Environmental Protection before July 1, 2010, granting an extension to the deadline, the deadline shall be extended to September 30, 2011. Such facilities must be in compliance with all other state and federal regulations pertaining to petroleum storage systems. The department has issued orders to some owners/operators pursuant to this legislation extending the deadline for installation of secondary containment. It has taken a narrow interpretation of the legislation, however. For example, the department has taken the position that orders issued before the legislation was adopted, such as consent orders,
cannot be used to extend the deadline to September 2011. Only orders specifically issued in response to CS for SB 1752 will have that effect. The result of the legislation is owners and operators of Category-A or Category-B tanks who were once subject to the same compliance deadlines may now find themselves in very different circumstances. Some of those entities expended the funds to install secondary containment in a timely manner before the December 31, 2009, deadline. Others who failed to meet that deadline were subjected to enforcement action. While the consent orders issued to the second category of owners/operators did extend the compliance deadline beyond the rule deadline of December 2009, it did not extend to September 2011. For the last category of owner/operators, the legislation has eliminated their potential liability for failure to meet the rule deadline and extended the compliance deadline to the third quarter of 2011. In summary, owners and operators of Category-A and Category-B tanks find themselves in very different circumstances. While the ultimate result may not appear fair to all, it was reached as a result of a political process that concluded that an extension of the compliance deadlines was necessary to accommodate a select group of regulated entities. ❍ Mary Smallwood is a partner in the statewide law firm of GrayRobinson and practices in the Tallahassee office. She is the former general counsel and director of the Department of Environmental Protection. Reach her at 850-577-9090 or firstname.lastname@example.org.
While many storage tank owners and operators complied with that regulatory deadline, there were still many storage tanks continuing to operate without the upgrade to secondary containment. Following expiration of the rule deadline, the department began to take enforcement action for failure to
Table of Contents for the Digital Edition of Petrogram - Fall 2010
Petrogram - Fall 2010
Welcome, New Board Members
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Petrogram - Fall 2010