Underground petroleum storage systems

Underground petroleum storage systems (UPSS) can leak and contaminate surrounding land and groundwater, creating risks to human health and the environment.

UPSS are most common at service stations but may be found where fuel is used, for example at marinas, work depots, airports, car dealerships, or government facilities. Operators of UPSS must have systems in place to prevent, report, and fix leaks if they happen. 

The UPSS Regulation

The Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019 (PDF 311KB) (UPSS Regulation) aims to minimise the risk to human health and the environment by requiring best practice design, installation, maintenance, and monitoring of UPSS in NSW.

Responsibility for UPSS

The person responsible for a UPSS is the person who has ‘management and control’ of the system. The person responsible must have procedures and systems in place to detect and fix any fuel leaks as early as possible, and document these in a Fuel System Operation Plan for the site.

It is against the law to allow or ignore contamination resulting from a leaking or faulty UPSS. The person responsible for the UPSS has a duty to notify pollution incidents immediately and then provide a completed UPSS Regulation leak notification form (DOCX 46KB) to the Appropriate Regulatory Authority within 30 days.

Compliance self-evaluation for service stations

The EPA has developed a self-evaluation program that allows service station operators to review their compliance with UPSS requirements in NSW.

Service station operators who participated are more likely to identify issues and take the appropriate actions before they develop into major environmental problems. 

Exemptions from the UPSS Regulation

UPSS used to store fuel for stand-by power generation, waste, or heating oil, are exempt from several provisions of the Regulation. All other Exemption Orders issued by the EPA have now expired. This means all UPSS, other than those used to store fuel for stand-by power generation, waste, or heating oil, must now operate in accordance with the UPSS Regulation.

See Exemptions from the UPSS Regulation for more detail.

Regulators of UPSS in NSW

From 1 September 2019, most sites with UPSS in NSW are regulated by local councils. Visit Office of Local Government to find your local council.

The EPA is the regulatory authority for UPSS sites that are

  • operated by public authorities
  • in the unincorporated areas of NSW
  • subject to an environment protection licence
  • subject to a notice issued by the EPA before 1 September 2019 for a matter under the UPSS Regulation until the actions in the notice have been complied with.

The EPA is providing councils with the knowledge and capacity to regulate UPSS in their local area. This includes training (see below), handover information, templates, and guidance for councils.

The EPA is providing continuing support and advice for councils with UPSS issues. If you have questions about where you can find information on UPSS in your local area, or what templates and guidance are available for council officers, please contact the EPA's UPSS team on 131 555 or by email at UPSSREG@epa.nsw.gov.au.

Training workshops for council officers on UPSS regulation

Registrations are open for council officers to attend capacity building workshops on UPSS regulation. These 1-day face-to-face workshops will provide council officers with knowledge and skills to regulate UPSS sites in their local area.

Locations and dates have been confirmed from August to November 2019. Council officers can register to attend a free workshop in metropolitan or regional centres by following the instructions below.

Registration instructions

  1. Log onto the EPA Learning website and search for 'UPSS Capacity Building Workshops' under the Find Courses tab.
    Note: you will need to create an EPA Learning account before you can view the sessions.
  2. Select the session you want to attend, add to cart, and proceed.
  3. Ensure you receive a booking confirmation email and verify the date and venue you enrolled for.

These training workshops are only for council officers and attendees should be officers who will be directly responsible for carrying out inspections and taking compliance action at sites with UPSS.

The EPA will schedule additional face-to-face workshops if there is enough demand.

There is also an online training resource for council officers. This training can be used as a refresher or to train staff new to regulating UPSS sites. You can find this on the EPA Learning website by searching 'UPSS Capacity Building Online Training Modules'.

Consultation on changes to the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019

Consultation on changes to the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019 was open from 17 May 2019 to 31 July 2019.

Comments and feedback on the draft Regulation were actively sought from key industry and government stakeholder groups and the general community.

1.  Context

The Subordinate Legislation Act 1989 requires that Regulations in New South Wales be reviewed every 5 years. The NSW Environment Protection Authority (EPA) reviewed the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 which lapsed on 1 September 2019. 

This date coincides with local councils resuming the Appropriate Regulatory Authority (ARA) role for most premises subject to the Regulation in their local area.  For this reason, it was an opportune time to review the effectiveness of the Regulation and make changes which may assist local councils in their role as ARA for premises with underground petroleum storage systems.

2.  Summary

The EPA developed the draft Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019 after consulting with major stakeholder groups such as local councils and the petroleum industry.

The Regulation’s aim is to minimise the risk of soil and groundwater contamination from leaking underground petroleum storage systems (UPSS). Leaks from UPSS are a significant source of groundwater contamination, and clean-up can be costly, technically difficult and time consuming.

The draft Regulation was on public exhibition between 17 May and 31 July 2019. Various communication and stakeholder engagement techniques were used to facilitate the consultation process with industry, government and community stakeholder groups.

3.  How consultation was undertaken

Comments and feedback on the draft Regulation were actively sought from key industry and government stakeholder groups and the general community via;

  1. The EPA’s engagement portal https://engage.environment.nsw.gov.au/draft-upss-regulation-2019. Written submissions were requested by 14 June 2019. A summary of the submissions is provided in Table 2.
  2. The EPA met, on request, with representatives of the petroleum industry (BP, Caltex and Viva Energy) on 6 June 2019. 
  3. Newsletters to the 128 local councils in NSW and around 130 industry stakeholders to ensure targeted consultation with people directly affected by the Regulation.  These included peak industry groups, petroleum companies, local councils, consultants and contractors operating in the petroleum industry.
  4. The EPA consulted with parties who had previously expressed interest in the development of an updated Regulation including Local Government NSW, the representative body for NSW Councils.
  5. The petroleum industry representative body, the Australasian Convenience and Petroleum Marketers Association (ACAPMA) informed its members and subscribers to its weekly newsletter.
  6. Notices advertising the draft Regulation were published in the NSW Government Gazette on 5 July 2019 and the Sydney Morning Herald on 10 July 2019. 

The objectives of the consultation process were to:

  • actively target key known stakeholders for comments, 
  • be informed by listening carefully to stakeholder feedback on the draft Regulation,
  • be transparent by recording all comments (both written and verbal), and
  • be a responsive and credible regulator by addressing each comment.

The targeted stakeholder consultation process (outlined in iii. above) was undertaken with the following key stakeholder groups: 

  1. Oil companies – BP Australia Pty Ltd, Caltex Australia Ltd, Viva Energy Australia Ltd, DIB Group Pty Ltd, Woolworths Ltd, 7-Eleven Stores Pty Ltd, Puma Energy, Budget Fuels, United Petroleum, Liberty, Metro Petroleum and smaller service station operators.
  2. Peak Industry Groups - the Motor Traders Association (Service Stations Division), the Australasian Convenience and Petroleum Marketers Association (ACAPMA), Australian Contaminated Lands Consultants Association (ACLCA)
  3. Government Stakeholder Groups – Department of Primary Industries – Water, Local Government NSW, Sydney Water, local councils via Local Government NSW newsletter.
  4. Industry stakeholders – service station operators via the ACAPMA newsletter.

4.  Feedback and findings

Both the general community and industry stakeholders were invited to provide written comments to the EPA.

A total of 17 written responses were received. Some of these stakeholders provided anonymous feedback via the EPA’s “Have your say” engagement portal, others requested confidentiality of their submissions.

  • The stakeholders who provided written submissions to the EPA are listed in Table 1 below.
  • Comments have been extracted from each of the submissions and are summarised in Table 2 below. To provide the anonymity requested, the comments are simply identified as being from either industry, council or government. The EPA’s response to each comment is also provided in Table 2.
  • Section 5 provides analysis and discussion on the key comments and/or issues identified during the consultation process.
  • Section 6 provides recommendations for amending and then finalising the draft Regulation.

5.  Analysis and discussion

The key points raised in the submissions were:

  • There was concern in the petroleum industry that proposed changes in definition of duly qualified person might prevent some types of UPSS workers which are not represented by a peak body from being recognised as duly qualified.
  • Most councils and the petroleum industry supported the proposed introduction of a 30-day notice of decommissioning to be provided by UPSS operators to their local council.  There was come some concern that this requirement might be difficult to comply with in cases where urgent decommissioning is required. 
  • The proposed new requirement for UPSS operators to prepare an annual report on the performance of their storage system each year and submit it to the regulatory authority, usually the local council, was not supported by the petroleum industry. Submissions indicated the requirement would add a significant administrative burden for limited environmental benefit given that leaks must already be reported to the regulator when they occur.  Councils generally saw value in receiving an annual update on the performance of UPSS sites in their local areas but also saw downsides such as increased resources needed to administer such a system. 
  • There was general support in most submissions to retain the existing exemption from many requirements of the Regulation for UPSS used for fuelling stand-by power generation, and the storage of waste and heating oil.  These types of UPSS operate differently than those focused on transport such as service stations, airports and bus depots.
  • While not directly related to the proposed changes to the Regulation, there were concerns expressed from both the petroleum industry and local councils about the resumption of regulation of UPSS by councils from 1 September 2019.  These concerns included a perceived lack of resourcing, knowledge, expertise and training on the part of councils.  The EPA has developed and is delivering a comprehensive capacity building package for local councils which includes face-to-face and on-line training and the provision of templates and guidance material to assist councils.  The EPA also provided councils with detailed information about known UPSS sites in their local areas.  Councils will be able to recover inspection costs under the Local Government Act in the normal way.
  • It was suggested that a representative group to meet periodically to discuss the transition of regulatory responsibility for UPSS to councils.  This group should represent the key stakeholders, the EPA, local councils and the petroleum industry and be a forum for the discussion and resolution of any issues that may arise during the transition period (approximately 18 months).  The EPA supports this idea and will be seeking interest from representative groups.

6. Recommendations

After detailed analysis of the written submissions, the following changes were recommended prior to finalisation of the Regulation:

  • The definition of duly qualified person be amended to retain the existing recognition of “compete and experience” as recognised in the relevant industry.
  • The requirement to provide 30-days’ notice of decommissioning to local authorities should allow for urgent or exceptional situations where decommissioning needs to be completed with less than 30-days’ notice.
  • The proposed requirement for UPSS operators to prepare an Annual Report on their UPSS and submit it to their regulator be removed.

Other recommendations associated with UPSS regulation

  • The current exemption from many parts of the UPSS Regulation for UPSS used solely for fuelling back power generators, and waste and heating oil tanks be continued beyond the current expiry date on 31 August 2019.
  • A representative group be established by the EPA to monitor the transition of most UPSS sites to council regulation over 18 months from 1 September 2019.  The group should include representatives from the EPA, local government and the petroleum industry.
  • The EPA revise its guidelines on UPSS to provide additional guidance to councils on exemptions from the Regulation, cost recovery options, and leak notification.

Table 1 - Written submissions received

Industry / individual

Type

Government bodies

Type

Australian Convenience and Petroleum Marketers Association (ACAPMA)

Industry Association

Camden Council

Council

Senversa

Contaminated Land Consultant

Cumberland Council

Council

**** Pty Ltd

Petroleum company

Hornsby Shire Council

Council

Viva Energy Australia Pty Ltd

Petroleum company

Tweed Shire Council

Council

BP Australia Pty Ltd

Petroleum company

Anonymous council

Council

Anonymous individual

Individual

Wollongong City Council

Council

Anonymous individual

Individual

Sydney Water

State owned corporation

Anonymous individual

Individual

Hunter Region Joint Organisation of Councils

Body representing councils

 

 

Local Government NSW

Body representing councils

**** Requested confidentiality

Table 2 - Draft Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019

Summary of public consultation responses – August 2019

Clause in draft Regulation

Stakeholder

Comment

Amendment recommended

EPA response

4. Definitions – removal of definition of old storage system

Industry

Removal of this term could call into question historically compliant UPSS.

Retain definition

Clauses 6-13 make it clear that only new and significantly modified systems require AS4897 compliance – no change required.

4. Definitions – change to definition of duly qualified person

Industry

Concern that the amended definition should also retain the current option of a duly qualified person being someone “whose competence and experience is recognised in the relevant industry” without necessarily needing to be recognised by a “peak body.” There are parts of the UPSS industry which do not have a representative body, and there are many skill sets and disciplines within UPSS work (design, installation, testing, operation). Some have representative bodies, and some do not.

Retain existing definition of duly qualified person in addition to being able to recognise industry accreditation schemes administered by peak bodies.

Agreed – change Regulation to accommodate this

 

Industry & councils

Need guidance as to what constitutes a “peak body” as there are none in some areas of UPSS and multiple bodies in other areas

EPA should provide guidance on what constitutes a “peak body”

Agreed – include guidance in EPA’s UPSS Guideline 2019

4. Definitions - change to definition of person responsible definition

Industry

Inquiry as to how the amended definition in Clauses 4(1)(c) and 4(1)(d) would apply in cases where a partial decommissioning of a UPSS had taken place and then site ownership / management changes? Particularly as Clause 4(2) seems to exclude contractual transfer of responsibility

Clarification

Noted – change Regulation to clarify that where the person responsible for a system changes, all responsibilities under the Regulation transfer to that new person.

 

Industry

Can natural person be broadened to include “business manager” as business manager is always responsible at a UPSS site?

Clarification

Noted – Legally a person responsible can only be a natural person or an incorporated company. A business manager is not a legal entity but can be a site contact.

 

Councils

General support for proposed change to capture situations where a previous operator of a UPSS is no longer contactable,

None

Noted

4. Definitions – change to definition of petroleum

Industry

Generally no comment or objection to proposed change of definition

None

Noted

 

Councils

Generally no comment or objection to proposed name change

None

Noted

 

Individuals

Generally no comment or objection to proposed name change

None

Noted

 

 

 

 

 

8. & 12. New and modified systems - Change mandatory pollution prevention equipment for new UPSS to that required in Australian Standard AS-4897

Industry

Generally no comment or objection to requirement

None

Noted

 

Councils

Generally no comment or objection to requirement

None

Noted

19. Change of name of Environment Protection Plan to Fuel system operation plan

Industry

Name change supported in principle – but will require renaming of hundreds of existing Environment Protection Plans. Administratively cumbersome. Should have a 12-month transition period to accommodate.

12-month transition period to new name

EPA to provide guidance to operators and local councils that whilst a plan is required to fulfil the requirements of the previous Environment Protection Plan, failure to update the name of the plan should be given due consideration for a 12-month transition period.

 

Industry

Transition cost to new name – no clear environmental benefit.

Use common terminology from other jurisdictions such as Environment Management Plan (EMP) or Operational Environmental Management Plan (OEMP).

EMP and OEMP’s are prepared for many other environmental matters and the name of the plan needs to clearly reflect its purpose. The EPA proposes to retain the term Fuel System Operation Plan.

 

Councils

Generally no comment or objection to proposed name change

None

Noted

 

Individuals

Generally no comment or objection to proposed name change

None

Noted

21. Loss detection - changed requirement to respond to UPSS leak from “as soon as practicable” to “within 60-days”

Industry

Clarification sought that actions in response to a leak are required to be initiated within the 60-days rather than completed. Depending on the complexity of the fault/leak, some can be resolved within days but major ones could take months even years for full remediation.

Clarification

Agreed – change Regulation to require a leak is “stopped” within 60 days and must be prevented from reoccurring as soon as “reasonably practicable”.

 

Councils

Concern that up to 60-days is too long to wait before responding to a UPSS leak

Recommend immediate or 30-days as alternatives

Noted – see change above

24. 30-days’ notice of decommissioning – new requirement

Industry

Most industry had no objections in principle to the requirement but concerned about situations where urgent decommissioning of a UPSS (or partial decommissioning) is required. 30-day notification requirement may impede urgent decommissioning and result in a poorer environmental outcome.

Allow exemptions from this requirement where urgent decommissioning is required.

Agreed – change Regulation to permit an exception to the requirement where urgent and unforeseen decommissioning is required. Notification will still be required as soon as the decision has been made to decommission urgently.

 

Councils

Generally no comment or objection to requirement – councils should be aware of decommissioning due to planning requirements but may be helpful in cases where development consent is not required

None

Noted

25. Leak Notification Form

Industry

Retain current Leak Notification Form rather than Councils creating a hundred different forms

EPA to coordinate a central leak notification form with councils

EPA to provide template leak notification form to councils for consistency

29. Annual Report on UPSS – new requirement

Industry

Concern that new Annual Report requirement will introduce unnecessary costs and overheads for limited environmental benefit. Reporting could be administratively cumbersome, and once loss monitoring and leak detection systems are in place they do not change from year to year. Leaks must be notified to the ARA in any case. Overall, see no additional value, only increased administrative burden.

Remove requirement

Remove requirement from Regulation

 

Councils

Mixed response, many councils see value in Annual Reports in terms of being informed about compliance across UPSS sites in their local areas. Councils also see downsides like the additional administrative processing burden.

None

Remove requirement from Regulation

30. Exemptions - Retain current exemption for UPSS used for backup generators, waste/heating oil etc (old class 1 exemption)

Industry

Support retaining exemption in its current form. If the exemption were to be withdrawn after 31 August 2019, then industry would require 12-18 months transition period to fully comply with the Regulation for these types of UPSS.

 

Building owners requested the exemption be retained in its current form as compliance would be difficult and costly and would take time to retrofit UPSS for compliance.

None

Noted – EPA to renew current exemption and enter dialogue with operators of such systems to discuss longer term regulatory approach to these.

 

Councils

General support for retaining exemption in its current form.

None

 

Other comments

 

 

 

 

Penalty Notices

Councils

Will Penalty Notices be available to councils for enforcement?

None

Penalty Notice powers will be available to the Appropriate Regulatory Authority (EPA or local councils).

Transition committee

Industry

Concern about consistency and capacity of councils to regulate UPSS after absence of 10+ years from the regulatory space.

Suggestion from industry that a transition committee be established by the EPA from 1 September 2019 to monitor transition and provide a point for discussion, guidance and consistency framework for UPSS regulation between the EPA, councils and the industry.

EPA supports and will initiate a transition committee shortly after 1 September 2019.

Revised UPSS Guideline 2019

Industry

Would welcome a chance to review draft and provide comment

 

EPA supports this request and will consult on a revised draft UPSS Guideline

Exemptions

Councils

Noting councils will have the power to issue exemptions in their local areas

Need guidance about issuing exemptions and when they are appropriate

EPA to incorporate guidance on exemptions in the revised UPSS Guideline

Workload/resource impacts to absorb UPSS Regulation

Councils

Concerns about impacts on council workloads and resources to take on this perceived ‘additional’ responsibility.

Need guidance on cost recovery options

EPA to incorporate guidance on cost recovery in training.

 

Page last updated