States state their case on Leaks

The Victorians might have started it but they are not going to have the last word on leak detection ? monitoring is going national.

Early Victorians

The Victorian Environment Protection Authority (EPA) guidelines for underground petroleum storage systems (UPSS) have been operational for over two years. Before revealing how the implementation has progressed, here is a brief recap of those requirements.

Apart from the guidelines and preceding them, the duties of owners and operators of UPSS are set down in the Dangerous Goods Act 1985 and the Dangerous Goods (Storage & Handling) Regulations 2000. These duties, among other things, require that the risks associated with UPSS be monitored and that all reasonable precautions be taken to prevent leaks; but they do not prescribe how this should be achieved. The purpose of the guidelines is to,

… provide owners and operators of UPSS with a key point of reference on design, installation and management aspects of both new and existing UPSS, to ensure the protection of people, property and the environment.

The need for guidelines was illustrated in January 2003, when Balgee Oil Pty Ltd pleaded guilty to a charge of causing an environmental hazard in a prosecution by EPA Victoria in the Geelong Magistrates Court. The prosecution followed a large fuel leak (in excess of 2,000 litres) from an underground storage tank at the company’s Apollo Bay service station. Although no conviction was recorded and Balgee Oil was placed on a two-year good behaviour bond, it was required to pay the EPA’s costs of $18,689 and $12,000 to the Apollo Bay foreshore committee, and to comply with EPA’s future clean-up requirements. An EPA representative estimated the cost to clean up the spill at $1.5 million.

The EPA, in consultation with industry representatives, devised its guidelines so that owners and operators of UPSS would be able to discover fuel leaks long before they reached the point where they could harm people, property, the environment, and your balance sheet.

The guidelines set out three stages of implementation:

1. From February 2003, if you install new UPSS, you need an appropriate management system; double-walled tanks; double-walled piping; tank pit observation bores; a system of leak detection – either Statistical Inventory Reconciliation Analysis (SIRA) or automatic tank gauging with line leak detection; and groundwater monitoring bores if it is a ‘sensitive’ site.
2. From February 2004, if you have existing UPSS on site, you need an appropriate management system and a system of leak detection (as above); and you should have assessed the ‘sensitivity’ of your site – in effect proximity and use of groundwater.
3. From February 2005, all sensitive sites require groundwater monitoring bores.

Many of the technical elements of these requirements are drawn from the Australian Institute of Petroleum’s (AIP’s) Code of Practice, CP04. The details are set out in EPA Publication 888, Guidelines for the Design, Installation and Management Requirements for Underground Petroleum Storage Systems, dated February 2003 and there is a summary in the information bulletin of the same name dated April 2003.

The benefits of wet stock management systems were discussed in ‘From Leak Detection to Business Intelligence’ in the last issue of Australian Convenience Store News.

Although not mandatory, the Victorian EPA guidelines specify the minimum requirements for practicable prevention of pollution, and you are required to take all practicable measures to prevent leaks. That may explain why Victorian service station owners and operators have been keeping the EPA officers (and others) busy.

“ Based on the number of requests for more information, we have had a very strong response,” says Dr Paul Moritz, Manager Land and Groundwater, EPA Victoria.

“ Retailers want to know what they have to do to meet the requirements, and to make sure they are doing the right thing.”

The EPA has not yet established the overall level of compliance. However, 627 sites under the control of members of the UPSS Technical Working Group that assisted in preparing the guidelines (including representatives of the AIP, APADA, VACC and other stakeholders from the retail and petroleum wholesale sector, and accounting for nearly 40% of total sites in Victoria) have implemented (or are implementing) leak detection systems. Further, nearly all have been classified based on their sensitivity. Of the around 300 sites that are considered sensitive, over half are now fitted with groundwater bores, over one-third are works-in-progress, and less that 10% are yet to be scheduled.

“ The delays are mainly due to resource constraints,” says Dr Moritz.

“ There were not enough drillers and project managers to complete the tasks by February 2005. We expect all systems to be in place by February 2006.”

Even so, the benefits are already being realised with leaks being detected and triggering remediation when they are still small (hundreds of litres), whereas before the compliant systems were implemented only large leaks (thousands of litres) would be detected. So, tank installers are being kept very busy too.

Although EPA officers are concerned that some retailers are not taking steps to meet the requirements of the guidelines, they will not be wielding the ‘big stick’ yet. The next stage of the process will be a survey of sites covering a cross-section of types of sites across metropolitan and regional areas. The survey will consist of a face-to-face meeting to complete a questionnaire. For some of you that means a friendly visit before the end of the year. So, make them welcome.

The survey is planned to be followed, in 2006, by an audit across the State which will focus on owners and operators thought to be non-compliant as well as identified sensitive sites. Although you cannot be prosecuted for not following the guidelines, there are consequences you need to be aware of.

“ If retailers do not follow the guidelines there are a number of possible outcomes, should there be a fuel loss incident,” says Dr Moritz. “There will be a costly bill to clean up and, if they are prosecuted, not having followed the guidelines could add significantly to the severity of the offence.”

Since the Apollo Bay event, maximum fines have increased to $240,000. This raises the question: ‘Who is responsible?’
According to Dr Moritz, the EPA can pursue either the polluter or the person in effective control of the site. It prefers to prosecute the polluter. This can get complicated with sites and/or their tanks changing ownership over the years. However, fuel contains markers that can indicate its age and the technology can even distinguish between neighbouring service stations.

If you try to ‘sell’ the problem to a new owner, they have recourse through the courts and under the Environment Protection Act 1970. If they are smart, they will arrange their own independent environmental assessment before purchase.

Although this only applies to Victoria at the moment, these guidelines and this approach to the issue are becoming the industry standard.

Sensitive South Australia

We understand a code of practice - similar to the Victorian guidelines - will be released in South Australia soon. However, it is at that sensitive stage in the process – being reviewed by the ‘powers that be’ – and the officers of the Environment Protection Authority (SA) cannot talk to Australian Convenience Store News until the code is publicly released. We fully appreciate their situation, and look forward to receiving a copy of the code when it is released, at which time we will let readers know too.

New South Wales Next

The New South Wales Department of Environment and Conservation (NSW DEC) is also in the latter stages of preparing a draft regulation to be released shortly with a draft regulatory impact statement.

In New South Wales, it is an offence to pollute water, under Section 120 of the Protection of the Environment Operations Act (The POEO Act). Based on this principle, a regulation proposed under the POEO Act will focus on a preventative approach to minimise the risk of future soil and groundwater contamination. It will require both leak monitoring and the development of an appropriate site management plan. The DEC has the power to issue Penalty Infringement Notices or to prosecute for breaches of the regulation depending on the seriousness of the offence.

“ The new regulation will be based on AIP CP4 and be in line with the Victorian guidelines,” says Elvin Wong, Policy Manager, NSW DEC.

“ We will also require groundwater monitoring wells at all sites, which is consistent with the POEO Act prohibition of pollution of waters. This is different to the requirement in Victoria. Only sensitive sites there require groundwater monitoring, but the onus is on the proponent to conduct investigations to prove that a site is not sensitive.

“ Owners and operators of service stations will have two years to implement groundwater monitoring and one year to implement leak detection for the existing facilities. They will need to have a site management plan when the new regulation commences.”

The NSW DEC expects many retailers with existing sites to opt for SIRA for leak monitoring because it is simple to implement and does not require significant capital expenditure.

Once the drafts are released for consultation – around four weeks – then the regulation should be finalised by the end of the year, taking into consideration the comments received.

Tasmania Too

Over the next two years, the Environment Division within the Tasmanian Department of Primary Industries, Water and Environment, will, in consultation with industry stakeholders, develop a system of prescriptive UPSS monitoring tailored to Tasmanian conditions.

This project is being undertaken even though it could be argued that monitoring is already they intention of the Environmental Management and Pollution Control Act 1994, particularly since the introduction of the Victorian guidelines.

“ Under Part 2a of the Act, you must take reasonable and practical steps to minimise environmental harm,” says Joe Tranter, Environment Officer, Environment Division, Tasmanian Department of Primary Industries, Water and Environment.

“ Now that it has been shown that the Victorian guidelines represent reasonable and practical steps, these could be said to be implied by the Act in Tasmania.

“ However, we do not regulate service stations directly and they are only required to notify us after a pollution incident. We will be considering prescriptive monitoring to prevent such incidents.”

In the meantime, who is responsible?

“ Under the Act, the person conducting the activity - who is usually identified as the licensee for dangerous goods,” says Mr Tranter.

“ This is not necessarily the owner of the tanks, and it can be complicated if the environmental harm has been the result of years of leaking tanks. We may look back for the person responsible in the past.

“ However, we recommend new owner and lessees undertake and environmental site assessment before taking over a service station site.”

Western Australian Way

In Western Australia, the operation of service stations is regulated by the Department of Consumer and Employment Protection under the Explosives and Dangerous Goods Act 1961 and the Explosives and Dangerous Goods (Handling and Storage) Regulations 1992. Service stations only come under the scrutiny of the Department of Environment when there is an incident – a fuel discharge that is reportable under the Environmental Protection Act 1986, or soon to be proclaimed Contaminated Sites Act 2003.

“ Service station operators are licensed under the Explosives and Dangerous Goods Act, and are required to comply with the AIP CP4-1998 for installing and monitoring UPSS,” says Lawry Lim, Principal Dangerous Goods Officer, Dangerous Goods Safety Branch, Resources Safety Division, WA Department of Consumer and Employment Protection

The Regulations include a section (2.13) on inspection and testing, but this only requires checking for leaks every five years until the tank is 20 years old, then every two years. However, licensees have obligations under AIP CP4 to maintain inventory control reconciliation as a means of detecting leaks in the storage tank systems.

As in Tasmania, a requirement to monitor could also be implied under the Contaminated Sites Act, once it commences (anticipated to be later this year). Then, you will obliged to report sites that you know or suspect to be contaminated to the Department of Environment. Third parties (such as neighbours and former employees) may also report sites.

“ A report will trigger an investigation including sampling of soil and groundwater,” says Dr Janet Macmillan, Senior Environmental Officer, Land and Water Quality Branch, Department of Environment.

“ After the Contaminated Sites Act commences it is the person who caused or contributed to the contamination that is considered responsible. The Act also sets up a ‘hierarchy’ of responsibility – if the first person can't be found or made to pay, it passes to the next person in line.

“ If it is not clear who is responsible, it will be determined by a committee, and some consideration will be given where the activity was lawful at the time of the polluting.”

Even so, it means someone will pay. To make sure it is not you, Dr Macmillan recommends getting an environmental consultant to review your site for contamination.

“ Although we are not going down the prescriptive (Victorian) path, it is considered best practice to have a monitoring system in place,” says Ms Macmillan.

“ To assist people in complying with the legislation, the Department of Environment is releasing a series of Fact Sheets (including Is my site contaminated? and How to Hire a Consultant), as well as updated versions of the Contaminated Sites Management Series of Administrative and Technical Guidelines.”

Quirky Queensland

Requirements in Queensland are complicated by the joint responsibility between the Environmental Protection Agency (Queensland EPA) and local councils. Petrol stations are regulated by local government authorities under the Dangerous Goods Safety Management Regulation 2001, the Environmental Protection Act 1994 and the Integrated Planning Act 1997.

The Dangerous Goods Safety Management Regulation 2001 primarily deals with safety-related issues, but the licence may contain specific requirements for the design, construction and operation of the service station. The local government authorities issuing the licences determine these requirements.

Under the Environmental Protection Act 1994 (EP Act), fuel storage facilities are categorised as an environmentally relevant activity (ERA) 11. The operators of ERA 11 must hold a registration certificate from the relevant local government authority. The Act has provisions for dealing with environmental harm caused by these facilities. The contaminated land provisions of the EP Act also require sites storing petroleum products in underground tanks with more than 200 litres capacity to be listed on the Queensland EPA’s environmental management register.

According to a Queensland EPA spokesperson, all development associated with ERA 11 (such as new facilities or expansion of existing facilities) requires a development approval (DA) under the Integrated Planning Act 1997. Potential environmental impacts associated with fuel storage facilities are assessed and relevant conditions are imposed on the DA, which is issued by the relevant council. Petrol stations in operation prior to the implementation of the EP Act in 1994 were deemed to have an approval. However, legislative changes introduced in October 2004 mean that these petrol stations must now apply for a registration certificate through the relevant local government authority.

Applications for registration must be lodged with local government authorities by October 2005. If these petrol stations have undergone a change of ownership, the new owners may also need to apply for a new development approval.

The holder of a licence or development approval (DA) for storing fuel is responsible for complying with the conditions of the licence or DA. The maximum penalty for failing to comply with a licence is $1500. On-the-spot fines of $375 can be issued to individuals ($1,500 for corporations) for failing to comply with a DA. The maximum penalty for failing to comply with a DA is $124,875.

Trailing Territories

Although we are certain that there must be something in place in the Australian Capital Territory and the Northern Territory, we have not been able to track the information down. If you know who we should contact about UPSS regulations and guidelines in the Territories, please let us know.

Who ya gonna call?

We cannot possibly cover all you need to know about UPSS management regulations and guidelines in your State or Territory in a single feature. To find out more, contact the relevant person below.

State	Contact	Telephone	Email
VIC		(03) 9695 2722	land.groundwater@epa.vic.gov.au
SA	Andrew Pruszinski	(08) 8204 9085	andrew.pruszinski@state.sa.gov.au
NSW	Elvin Wong	(02) 9995 5618	Elvin.wong@environment.nsw.gov.au
TAS	Joe Tranter	(03) 6233 5091	Joseph.Tranter@dpiwe.tas.gov.au

Or, go to the following websites:
www.epa.vic.gov.au/Land-Groundwater