UST Attorney Workbook of State and Federal Underground Storage Tank Statutes and Regulations for the Region 4 Area v.1

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5/97
Membership List
Region IV UST Attorneys Workgroup
1.	James (Jim) G. Stevens - Chairperson (Alabama)
2.	Kevin B. Smith - Facilator (EPA Region IV)
3.	Roy H. Furrh (Mississippi)
4.	Nancy R. Kerastas (Tennesse)
5.	Elizabeth Levy (South Carolina)
6.	Rick Muratti (Florida)
7.	Jay Osborne (North Carolina)
8.	Richard (Dick) Swanson (Georgia)
9.	Bryon Thompson (Kentucky)

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5/97
Membership List
Region IV UST Attorneys Workgroup
1.	James (Jim) G. Stevens. Esq. (Alabama) (Chairperson)
Office of General Counsel
Dept. of Environmental Management
Post Office Box 301463
Montgomery, AL 36130-1463
2.	Kevin B. Smith, Esq. (U.S. EPA Region IV) (Facilator)
3.	Roy H. Furrh, Esq. (Mississippi)
Legal Division
Dept. of Environmental Quality
Post Office Box 20305
Jackson, MS 39289-1305
4.	Nancy R. Kerastas, Esq. (Tennesse)
Office of General Counsel
Dept. of Environment and Conservation
20th Floor, L & C Tower
401 Church Street
Nashville, TN 37243-1548
5.	Elizabeth Levy, Esq. (South Carolina)
Legal Office
Dept. of Health and Environmental Control
2600 Bull Street
Columbia, SC 29209
6.	Rick Muratti, Esq. (Florida)
Office of General Counsel
Douglas Building (MS35)
3 900 Commonwealth Blvd.
Tallahassee, FL 32399-3000
7.	Jay Osborne, Esq. (North Carolina)
Assistant Attorney General
Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
8.	Richard (Dick) Swanson, Esq. (Georgia)
Department of Natural Resources
4244 International Pkwy.
Suite 100
Atlanta, GA 30354
9.	Bryon Thompson, Esq. (Kentucky)
Department of Law
Natural Resources and Environmental Protection Cabinet
5th Floor, Capital Plaza Tower
Frankfort, KY 40601

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5/9 9
Membership List
Region IV DST Attorneys Workgroup
1.	James (Jim) G. Stevens - Chairperson (Alabama)
2.	David L. Harbin - Facilator (EPA Region IV)
3.	Victoria George (EPA Region IV)
4.	Susan Schub (EPA Region IV)
5.	Mindy Waitsman (EPA Region IV)
6.	Lisa Duchene (Florida)
7.	Richard (Dick) Swanson (Georgia)
8.	Robin Thomerson (Kentucky)
9.	Lauren Anderson (Kentucky)
10.	Trudy Fisher (Mississippi)
11.	Philip Telpher (North Carolina)
12.	Kathleen Waylett (North Carolina)
13.	Donald Laton (North Carolina)
14.	Elizabeth Levy (South Carolina)
15.	Jacquelyn Dickman (South Carolina)
16.	Nancy Kerastas (Tennessee)

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LIST OF REGION IV DST ATTORNEYS
US EPA Region IV
Victoria George (Chief, Wetlands/UIC/UST Section)
Office of Regional Counsel
US Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, GA 30365
(404) 347-2309, ex. 2912
(404) 347-4568 FAX
David L. Harbin (UST Lead)
Office of Regional Counsel
US Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, GA 30365
(404) 347-2309, ex 2917
(404) 347-4568 FAX
Susan Schub
Office of Regional Counsel
US Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, GA 30365
(404) 347-2309, ex 2918
(404) 347-4568 FAX
Mindy Waitsman
Office of Regional Counsel
US Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, GA 30365
(404) 347-2309, ex 2919
(404) 347-4568 FAX
Alabama
James (Jim) G. Stevens (UST Lead)
Offic of General Counsel
Department of Environmental Management
1751 Cong. W.L. Dickenson Drive
Montgomery, AL 36130
(205) 271-7860
(205) 271-7950 FAX

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2
Florida
Lisa Duchene (DST Lead)
Office of General Counsel
Department of Environmental regulation
2600 Blair Stone Road
Tallahassee, FL 32399
(904) 488-9730
(904) 488-2439 FAX
Georgia
Richard (Dick) W. Swanson (DST Lead)
Department of Natural Resources
4244 International Parkway, Suite 100
Atlanta, GA 30354
(404) 362-2687
(404) 362-2654 FAX
Kentucky:
Robin Thomerson (DST Lead)
Department of Law
Natural Resources and Environmental Protection Cabinet
5th Floor, Capital Plaza Tower
Franffort, KY 40601
(502) 564-5576
(502) 564-6131 FAX
Lauren Anderson
Department of Law
Natural Resources and Environmental Protection Cabinet
5th Floor, Capital Plaza Tower
Franffort, KY 40601
(502) 564-5576
(502) 564-6131 FAX
Mississippi
Trudy Fisher (DST Lead)
Chief of Legal Division
Department of Environmental Quality
P.O. Box 20305
Jackson, MS 39289-1305
(601) 961-5076
(601) 354-6965 FAX

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3
North Carolina
Philip Telfer (DST Lead)
Special Deputy Attorney General
Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
(919) 733-7247
(919) 733-0791 FAX
Kathleen M. Waylett
Assistant Attorney General
Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
(919) 733-7247
(919) 733-0791 FAX
Donald W. Laton
Assistant Attorney General
Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
(919) 733-7247
(919) 733-0791 FAX
South Carolina
Elizabeth Levy (DST Lead)
Legal Office
Department of Health and Environmental Control
2600 Bull Street
Columbia, SC 29209
(803) 734-4910
(803) 734-5519 FAX
Jacquelyn Dickman
Legal Office
Department of Health and Environmental Control
2600 Bull Street
Columbia, SC 29209
(803) 734-4910
(803) 734-5519 FAX

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4
Tennessee
Nancy R. Kerastas (DST Lead)
Office of General Counsel
Department of Environment and Conservation
20th Floor, L & C Tower
401 Church Street
Nashville, TN 37243-1548
(615) 532-0146
(615) 532-0120 FAX

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683
SOLID WASTE DISPOSAL
42 § 6991
SWDA 99001
(1)	may be made only in the amount of the
Federal share of (A) the estimated total design
and construction costs, plus (B) in the case of a
grant to which subsection (b)(1) of this section
applies, the first-year operation and maintenance
costs;
(2)	may not be provided for land acquisition or
(except as otherwise provided in paragraph (1MB))
for operating or maintenance costs;
(3)	may not be made until the applicant has
made provision satisfactory to the Administrator
for proper and efficient operation and mainte-
nance of the project (subject to paragraph (1KB));
and
(4)	may be made subject to such conditions and
requirements, in addition to those provided in this
section, as the Administrator may require to prop-
erly carry out his functions pursuant to this chap-
ter.
For purposes of paragraph (1), the non-Federal
share may be in any form, including, but not limited
to, lands or interests therein needed for the project
or personal property or services, the value of which
shall be determined by the Administrator.
f) Single State
(1)	Not more than 15 percent of the total of funds
authorized to be appropriated for any fiscal year to
carry out this section shall be granted under this
section for projects in any one State.
(2)	The Administrator shall prescribe by regula-
tion the manner in which this subsection shall apply
to a grant under this section for a project in an area
which includes all or part of more than one State.
(Pub.L 89-272, Title II, § 8006, as added Oct 21, 1976,
Pub.L 94-580, § 2, 90 Stat 2838.)
Code of Federal Regulations
Grants, see 40 CFR 40.100 et seq.
Library References
United States «»82(3).
CJ.S, United States { 122.
§ 6987. Authorization of appropriations
[SWDA § 8007]
There are authorized to be appropriated not to
exceed $35,000,000 for the fiscal year 1978 to carry
out the purposes of this subchapter (except for
section 6982 of this title).
(Pub.L 89-272, Title II, $ 8007, as added Oct 21, 1976,
'b.L. 94-580, 8 2, 90 Stat 2839.)
Library References
United States «=>82(3).
CJ.S. United States § 122.
SUBCHAPTER IX—REGULATION OF
UNDERGROUND STORAGE
TANKS
§ 6991. Definitions and exemptions
[SWDA § 9001]
For the purposes of this subchapter—
(1) The term "underground storage, tank"
means any one or combination of tanks (including
underground pipes connected thereto) which is
used to contain an accumulation of regulated sub-
stances, and the volume of which (including the
volume of the underground pipes connected there-
to) is 10 per centum or more beneath the surface
of the ground. Such term does not include any—
(A)	farm or residential tank of l,iuu gallons
or less capacity used for storing motor'fuel for
noncommercial purposes,
(B)	tank used for storing heating oil for con-
sumptive use on the premises where stored,
(C)	septic tank,
(D)	pipeline facility (including garnering
lines) regulated under—
(i) the Natural Gas Pipeline Safety Act of
1968 (49 U.S.C.App. 1671, et seq.),
(U) the Hazardous Liquid Pipeline Safety
Act of 1979 (49 U.S.C.App. 2001, et seq.), or
(iii) which is an intrastate pipeline facility
regulated under State laws comparable to the
provisions of law referred to in clause (i) or
(ii) of this subparagraph,
(E)	surface impoundment, pit, pond. or . la-
goon,
(F)	storm water or waste water collection
system,
(G)	flow-through process tank,
(H)	liquid trap or associated gathering lines
directly related to oil or gas production and
gathering operations, or
(I)	storage tank situated in an underground
area (such as a basement, cellar, mineworking,
drift, shaft, or tunnel) if the storage tank is
situated upon or above the surface of the floor.
The term "underground storage tank" shall not
include any pipes connected to any tank which is
described in subparagraphs (A) through (I).

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42 § 6991
SWDA |9001
FEDERAL ENVIRONMENTAL LAWS
684
(2)	The term "regulated substance" means—
(A)	any substance defined in section 9601(14)
of this title (but not including any substance
regulated as a hazardous waste under subchap-
ter III of this chapter), and
(B)	petroleum.
(3)	The term "owner" means—
(A)	in the case of an underground storage
tank in use on November 8, 1984, or brought
into use after that date, any person who owns
an underground storage tank used for the stor-
age, use, or dispensing of regulated sustances,1
and
(B)	in the case of any underground storage
tank in use before November 8, 1984, but no
longer in use on November 8, 1984, any person
who owned such tank immediately before the
discontinuation of its use.
(4)	The term "operator" means any person in
control of, or having responsibility for, the daily
operation of the underground storage tank.
(5)	The term "release" means any spilling,
leaking, emitting, discharging, escaping, leaching,
or disposing from an underground storage tank
into ground water, surface water or subsurface
soils.
(6)	The term "person" has the same meaning
as provided in section 6903(16) of this title, except
that Buch term includes a consortium, a joint
venture, and a commercial entity, and the United
States Government
(7)	The term "nonoperational storage tank"
means any underground storage tank in which
regulated substances will not be deposited or
from which regulated substances will not be dis-
pensed after November 8, 1984.
(8)	The term "petroleum" means petroleum, in-
cluding crude oil or any fraction thereof which is
liquid at standard conditions of temperature and
pressure (60 degrees Fahrenheit and 14.7 pounds
per square inch absolute).
(Pub.L. 89-272, Title II, § 9001, as added Nov. 8, 1984,
Pub.L 98-616, Title VI, $ 601(a), 98 Stat 3277, and
amended Oct 17, 1986, Pub.L. 99-499, Title II, § 205(a),
100 Stat 1696.)
l So in original. Probably should be "substances".
. Library References
Health and Environment *=>25.5(3).
CJ.S. Health and Environment j 91 et seq.
§ 6991a. Notification [SWDA § 9002]
(a)	Underground storage tanks
(1)	Within 18 months after November 8, 1984,
each owner of an underground storage tank shall
notify the State or local agency or department des-
ignated pursuant to subsection (b)(1) of this section
of the existence of such tank, specifying the age,
size, type, location, and uses of such tank.
(2)(A)	For each underground storage tank taken
out of operation after January 1, 1974, the owner of
such tank shall, within eighteen months after No-
vember 8, 1984, notify^ the State or local agency, or
department designated pursuant to subsection (b)(1)
of this section of the existence of such tanks (unless
the owner knows the tank subsequently was re-
moved from the ground). The owner of a tank
taken out of operation on.or before January 1,1974,
shall not be required to notify the State or local
agency under this subsection.
(B) Notice under subparagraph (A) shall specify,
to the extent known to the owner—
(i)	the date the tank was taken out of opera-
tion,
(ii)	the age of the tank on the date taken out of
operation,
(iii)	the size, type and location of the tank, and
(iv)	the. ,type and quantity of substances left
stored in such tank on the date taken out of
operation.
(3)	Any owner which brings into use an under-
ground storage tank after the initial notification
period specified under paragraph (1), shall notify
the designated State or local agency or department
within thirty days of the existence of such tank,
specifying the age, size, type, location and uses of
such tank.
(4)	Paragraphs (!) through (3) of this subsection
shall not apply to tanks for which notice was given
pursuant to section 9603(c) of this title.
(5)	Beginning thirty days after the Administrator
prescribes the form of notice pursuant to subsection
(b)(2)	of this section and for eighteen months there-
after, any person who deposits regulated sub-
stances in an underground storage tank shall rea-
sonably notify the owner or operator of such tank
of the owners notification requirements pursuant
to this subsection..
(6)	Beginning thirty aays aner the Administrator
issues new tank performance standards pursuant to
section 6991b(c) of this title, any person who sells a
tank intended to be used as an underground storage

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42 §6991
SWDA S 9001
FEDERAL ENVIRONMENTAL LAWS
684
(2)	The term "regulated substance" means—
(A)	any substance defined in section 9601(14)
of this title (but not including any substance
regulated as a hazardous waste under subchap-
ter III of this chapter), and
(B)	petroleum.
(3)	The term "owner" means—
(A)	in the case of an underground storage
tank in use on November 8, 1984, or brought
into use after that date, any person who owns
an underground storage tank used for the stor-
age, use, or dispensing of regulated sustances,1
and
(B)	in the case of any underground storage
tank in use before November . 8, 1984, but no
longer in use on November 8, 1984, any person
who owned such tank immediately before the
discontinuation of its use.
(4)	The term "operator^' means any person in
control of, or having responsibility for, the daily
operation of the underground storage tank.
(5)	The term "release", means. any spilling,
leaking, emitting, discharging, escaping, leaching,
or disposing from an underground storage tank
into ground water, surface water or subsurface
soils.
(6)	The term "person" has the same meaning
as provided in section 6903(15) of this title, except
that such term includes a consortium, a joint
venture, and a commercial entity, and the United
States Government
(7)	The term "nonoperational storage tank"
means any underground storage tank in which
regulated substances will not be deposited or
from which regulated substances will not be dis-
pensed after November 8, 1984.
(8)	The term "petroleum" means petroleum, in-
cluding crude oil or any fraction thereof which is
liquid at standard conditions of temperature and
pressure (60 degrees Fahrenheit and 14.7 pounds
per square inch absolute).
(Pub.L 89-272, Title II, § 9001, as added Nov. 8, 1984,
Pub.L 98-616, Title VI, § 601(a), 98 Stat 3277, and
amended Oct 17, 1986, Pub.L 99-499, Title II, § 205(a),
100 Stat 1696.)
I So in original. Probably should be "substances".
Library References
Health and Environment «=25,5(3).
CJ.S. Health and Environment j 91 et seq.
§ 6991a. Notification [SWDA § 9002]
(a)	Underground storage tanks
(1) Within 18 months after November 8, 1984,
each owner of an underground storage tank shall
notify the State or local agency or department des-
ignated pursuant to subsection (bXl) of this section
of the existence of such tank, specifying the age,
size, type, location, and uses of such tank.
(2XA) For each underground storage tank taken
out of operation after January 1, 1974, the owner of
such tank shall, within eighteen months after No-
vember 8, 1984, notify the State or local agency, or
department designated pursuant to subsection (b)(1)
of this section of the existence of such tanks (unless
the owner knows the tank subsequently was re-
moved from the ground). The owner of a tank
taken out of operation on or before January 1, 1974,
shall not be required to notify the State or local
agency under this subsection.
(B) Notice under subparagraph (A) shall specify,
to the extent known to the owner—
(i)	the date the tank was taken out of opera-
tion,
(ii)	the age of the tank on the date taken out of
operation,
(iii)	the size, type and location of the tank, and
(iv)	the type and quantity of substances left
stored in such tank on the date taken out of
operation.
(3)	Any owner which brings into use an under-
ground storage tank after the initial notification
period specified under paragraph (1), shall notify
the designated State or local agency or department
within thirty days , of the existence of such tank,
specifying the age, size, type, location and uses of
such tank.
(4)	Paragraphs (1) through (3) of this subsection
shall not apply to tanks for which notice was given
pursuant to section 9603(c) of this title.
(5)	Beginning thirty days after the Administrator
prescribes the form of notice pursuant to subsection
(b)(2)	of this section and for eighteen months there-
after, any person who deposits regulated sub-
stances in an underground storage tank shall rea-
sonably notify the owner or operator of such tank
of the owner's notification requirements pursuant
to this subsection.
(6)	Beginning thirty days after tiie Administrator
issues new tank performance standards pursuant to
section 6991b(c) of this title, any person who sells a
tank intended to be used as an underground storage

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685
SOLID WASTE DISPOSAL
42 § 6991b
SWDA §0003
tank shall notify the purchaser of such tank of the
owner's notification requirements pursuant to this
subsection.
(b)	Agency designation
(1)	Within one hundred and eighty days after
November 8, 1984, the Governors of each State
shall designate the appropriate State agency or
department or local agencies or departments to re-
ceive the notifications under subsection (a)(1), (2), or
(3) of this section.
(2)	Within twelve months after November 8,
1984, the Administrator, in consultation with State
and local officials designated pursuant to subsection
(bKl) of this section, and after notice and opportuni-
ty for public comment, shall prescribe the form of
the notice and the information to be included in the
notifications under subsection (a)(1), (2), or (3) of
this section. In prescribing the form of such notice,
the Administrator shall take into account the effect
on small businesses and other owners and opera-
tors.
(c)	State inventories
Each State shall make 2 separate inventories of
all underground storage tanks in such State contain-
ing regulated substances. One inventory shall be
made with respect to petroleum and one with re-
spect to other regulated substances. In making
such inventories, the State shall utilize and aggre-
gate the data in the notification forms submitted
pursuant to subsections (a) and (b) of this section.
Each State shall submit such aggregated data to
the Administrator not later than 270 days after
October 17, 1986.
(Pub.L 89-272, Title II, § 9002, as added Nov. 8, 1984,
Pub.L 98-616, Title VI, § 601(a), 98 Stat 3278, and
amended Oct 17, 1986, Pub.L. 99-499, Title II, § 205(b),
100 Stat 1696.)
§ 6991b. Release, detection, prevention,
and correction regulations
[SWDA § 9003]
(a)	Regulations
The Administrator, after notice and opportunity
for public comment, and at least three months be-
fore the effective dates specified in subsection (f) of
this section, shall promulgate release detection, pre-
vention, and correction regulations applicable to all
owners and operators of underground storage
tanks, as may be necessary to protect human health
and the environment
(b)	Distinctions In regulations
In promulgating regulations under this section,
the Administrator may distinguish between types,
classes, and ages of underground storage tanks. In
making such distinctions, the Administrator may
take into consideration factors, including, but not
limited to: location of the tanks, soil and climate
conditions, uses of the tanks, history of mainte-
nance, age of the tanks, current industry recom-
mended practices, national consensus codes, hydro-
geology, water table, size of the tanks, quantity of
regulated substances periodically deposited in or
dispensed from the tank, the technical capability of
the owners and operators, and the compatibility of
the regulated substance and the materials of which
the tank is fabricated.
(c)	Requirements
The regulations promulgated pursuant to this sec-
tion shall include, but need not be limited to, the
following requirements respecting all underground
storage tanks—
(1)	requirements for maintaining a leak detec-
tion system, an inventory control system together
with tank testing, or a comparable system or
method designed to identify releases in a manner
consistent with the protection of human health
and the environment;
(2)	requirements for maintaining records of
any monitoring or leak detection system or inven-
tory control system or tank testing or comparable
system;
(3)	requirements for reporting of releases and
corrective action taken in response to a release
from an underground storage tank;
(4)	requirements for taking corrective action in
response to a release from an underground stor-
age tank;
(5)	requirements for the closure of tanks to
prevent future releases of regulated substances
into the environment; and
(6)	requirements for maintaining evidence of
financial responsibility for taking corrective ac-
tion and compensating third parties for bodily
injury and property damage caused by sudden
and nonsudden accidental releases arising from
operating an underground storage tank.
(d)	Financial responsibility
(1) Financial responsibility required by this sub-
section may be established in accordance with regu-
lations promulgated by the Administrator by any
one, or any combination, of the following: insur-
ance, guarantee, surety bond, letter of credit, quali-
fication as a self-insurer or any other method satis-
factory to the Administrator. In promulgating re-
quirements under this subsection, the Administrator

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42 § 6991b
SWDA S 9003
FEDERAL ENVIRONMENTAL LAWS
686
is authorized to specify policy or other contractual
terms, conditions, or defenses which are necessary
or are unacceptable in establishing such evidence of
financial responsibility in order to effectuate the
purposes of this subchapter.
(2)	In any case where the owner or operator is in
bankruptcy, reorganization, or arrangement pursu-
ant to the Federal Bankruptcy Code or where with
reasonable diligence jurisdiction in any State court
of the Federal Courts cannot be obtained over an
owner or operator likely to be solvent at the time of
judgment, any claim arising from conduct for which
evidence of financial responsibility must be provided
under this subsection may be asserted directly
against the guarantor providing such evidence of
financial responsibility. In the case of any action
pursuant to this paragraph such guarantor shall be
entitled to invoke all rights and defenses which
would have been available to the owner or operator
if any action had been brought against the owner or
operator by the claimant and which would have
been available to the guarantor if an action had
been brought against the guarantor by the owner or
operator.
(3)	The total liability of any guarantor shall be
limited to the aggregate amount which the guaran-
tor has provided as evidence of financial responsibil-
ity to the owner or operator under this section.
Nothing in this subsection shall be construed to
limit any other State or Federal statutory, contrac-
tual or common law liability of a guarantor to its
owner or operator including, but not limited to, the
liability of such guarantor for bad faith either in
negotiating or in failing to negotiate the settlement
of any claim. Nothing in this subsection shall be
construed to diminish the liability of any person
under section 9607 or 9611 of this title or other
applicable law.
(4)	For the purpose of this subsection, the term
"guarantor" means any person, other than the own-
er or operator, who provides evidence of financial
responsibility for an owner or operator under this
subsection.
(5)(A)	The Administrator, in promulgating finan-
cial responsibility regulations under this section,
may establish an amount of coverage for particular
classes or categories of underground storage tanks
containing petroleum which shall satisfy such regu-
lations and which shall not be less than $1,000,000
for each occurrence with an appropriate aggregate
requirement
(B) The Administrator may set amounts lower
than the amounts required by subparagraph (A) of
this paragraph for underground storage tanks con-
taining petroleum which are at facilities not en-
gaged in petroleum production, refining, or market-
ing and which are not used to handle substantial
quantities of petroleum.
(C)	In establishing classes and categories for
purposes of this paragraph, the Administrator may
consider the following factors:
(i)	The size, type, location, storage, and han-
dling capacity of underground storage tanks in
the class or category and the volume of petroleum
handled by such tanks.
(ii)	The likelihood of release and the potential
extent of damage from any release from under-
ground storage tanks in the class or category.
(iii)	The economic impact of the limits on the
owners and operators of each such class or cate-
gory, particularly relating to the small business
segment of the petroleum marketing industry.
(iv)	The availability of methods of financial
responsibility in amounts greater than the
amount established by this paragraph.
(v)	Such other factors as the Administrator
deems pertinent
(D)	The Administrator may suspend enforcement
of the financial responsibility requirements for a
particular class or category of underground storage
tanks or in a particular State, if the Administrator
makes a determination that methods of financial
responsibility satisfying the requirements of this
subsection are not generally available for under-
ground storage tanks in that class or category,
and—
(i)	steps are being taken to form a risk reten-
tion group for such class of tanks; or
(ii)	such State is taking steps to establish a
fund pursuant to section 6991c(c)(l) of this title to
be submitted as evidence of financial responsibili-
ty.
A suspension by the Administrator pursuant to this
paragraph shall extend for a period not to exceed
180 days. A determination to suspend may be made
with respect to the same class or category or for the
same State at the end of such period, but only if
substantial progress has been made in establishing
a risk retention group, or the owners or operators in
the class or category demonstrate, and the Adminis-
trator finds, that the formation of such a group is
not possible and that the State is unable or unwill-
ing to establish such a fund pursuant to clause (ii).

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687
SOLID WASTE DISPOSAL
42 § 6991b
SWOA 99003
(e) New tank performance standards
The Administrator shall, not later than three
months prior to the effective date specified in sub-
section (f) of this section, issue performance stan-
dards for underground storage tanks brought into
use on or after the effective date of such standards.
The performance standards for new underground
storage tanks shall include, but need not be limited
to, design, construction, installation, release detec-
tion, and compatibility standards.
(0 Effective dates
(1)	Regulations issued pursuant to subsection1 (c)
and (d) of this section, and standards issued pursu-
ant to subsection (e) of this section, for under-
ground storage tanks containing regulated sub-
stances defined in section 6991(2)(B) of this title
(petroleum, including crude oil or any fraction there-
of which is liquid at standard conditions of tempera-
ture and pressure) shall be effective not later than
thirty months after November 8, 1984.
(2)	Standards issued pursuant to subsection (e) of
this section (entitled "New Tank Performance Stan-
dards") for underground storage tanks containing
regulated substances defined in section 6991(2)(A)
of this title shall be effective not later than thirty-
six months after November 8, 1984.
(3)	Regulations issued pursuant to subsection (c)
of this section (entitled "Requirements") and stan-
dards issued pursuant to subsection (d) of this sec-
tion (entitled "Financial Responsibility") for under-
ground storage tanks containing regulated sub-
stances defined in section 6991(2XA) of this title
shall be effective not later than forty-eight months
after November 8, 1984.
(g) Interim prohibition
(1) Until the effective date of the standards
promulgated by the Administrator under subsection
(e) of this section and after one hundred and eighty
days after November 8, 1984, no person may install
an underground storage tank for the purpose of
storing regulated substances unless such tank
(whether of single or double wall construction)—
(A)	will prevent releases due to corrosion or
structural failure for the operational life of the
tank;
(B)	is cathodically protected against corrosion,
constructed of noncorrosive material, steel clad
with a noncorrosive material, or designed in a
manner to prevent the release or threatened re-
lease of any stored substance; and
(C) the material used in the construction or
lining of the tank is compatible with the sub-
stance to be stored.
(2) Notwithstanding paragraph (1), if soil tests
conducted in accordance with ASTM Standard
G57-78, or another standard approved by the Ad-
ministrator, show that soil resistivity in an installa-
tion location is 12,000 ohm/cm or more (unless a
more stringent standard is prescribed by the Admin-
istrator by rule), a storage tank without corrosion
protection may be installed in that location during
the period referred to in paragraph (1).
(h) EPA Response Program for Petroleum
(1)	Before regulations
Before the effective date of regulations under
subsection (c) of this section, the Administrator
(or a State pursuant to paragraph (7)) is autho-
rized to—
(A)	require the owner or operator of an un-
derground storage tank to undertake corrective
action with respect to any release of petroleum
when the Administrator (or the State) deter-
mines that such corrective action will be done
properly and promptly by the owner or operator
of the underground storage tank from which
the release occurs; or
(B)	undertake corrective action with respect
to any release of petroleum into the environ-
ment from an underground storage tank if such
action is necessary, in the judgment of the
Administrator (or the State), to protect human
health and the environment
The corrective action undertaken or required under
this paragraph shall be such as may be necessary to
protect human health and the environment. The
Administrator shall use funds in the Leaking Under-
ground Storage Tank Trust Fund for payment of
costs incurred for corrective action under subpara-
graph (B), enforcement action under subparagraph
(A), and cost recovery under paragraph (6) of this
subsection. Subject to the priority requirements of
paragraph (3), the Administrator (or the State) shall
give priority in undertaking such actions under sub-
paragraph (B) to cases where the Administrator (or
the State) cannot identify a solvent owner or opera-
tor of the tank who will undertake action properly.
(2)	After regulations
Following the effective date of regulations un-
der subsection (c) of this section, all actions or
orders of the Administrator (or a State pursuant
to paragraph (7)) described in paragraph (1) of
this subsection shall be in conformity with such

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42 § 6991b
SWDA §9003
FEDERAL ENVIRONMENTAL LAWS
688
regulations. Following such effective date, the
Administrator (or the State) may undertake cor-
rective action with respect to any release of petro-
leum into the environment from an underground
storage tank only if such action is necessary, in
the judgment of the Administrator (or the State),
to protect human health and the environment and
one or more of the following situations exists:
(A) No person can be found, within 90 days
or such shorter period as may be necessary to
protect human health and the environment, who
is—
(i) an owner or operator of the tank con-
cerned,
(ii) subject to such corrective action regu-
lations, and
(ill) capable of carrying out such correc-
tive action properly.
(B) A situation exists which requires prompt
action by the Administrator (or the State) under
this paragraph .to protect human health and the
environment
-------
689
SOLID WASTE DISPOSAL
42 § 6991b
SWDA §9003
person who may be liable for a release or
threat of release under this subsection, to
any other person the liability imposed under
this subsection. Nothing in this subsection
shall bar any agreement to insure, hold harm-
less, or indemnify a party to such agreement
for any liability under this section.
(it) No bar to cause of action
Nothing in this Bubsection, including the
provisions of clause (i) of this subparagraph,
shall bar a cause of action that an owner or
operator or any other person subject to liabili-
ty under this section, or a guarantor, has or
would have, by reason of subrogation or oth-
erwise against any person.
(D) Facility
For purposes of this paragraph, the term
"facility" means, with respect to any owner or
operator, all underground storage tanks used
for the storage of petroleum which are owned
or operated by such owner or operator and
located on a single parcel of property (or on any
contiguous or adjacent property).
(7) State authorities
(A) General
A State may exercise the authorities in para-
graphs (1) and (2) of this subsection, subject to
the terms and conditions of paragraphs (3), (5),
(9), (10), and (11), and including the authorities
of paragraphs (4), (6), and (8) of this subsection
if—
(i) the Administrator determines that the
State has the capabilities to carry out effec-
tive corrective actions and enforcement activi-
ties; and
(ii) the Administrator enters into a cooper-
ative agreement with the State setting out
the actions to be undertaken by the State.
The Administrator may provide funds from the
Leaking Underground Storage Tank Trust Fund
for the reasonable costs of the State's actions
under the cooperative agreement.
(B) Cost share
Following the effective date of the regula-
tions under subsection (c) of this section, the
State shall pay 10 per centum of the cost of
corrective actions undertaken either by the Ad-
ministrator or by the State under a cooperative
agreement, except that the Administrator may
take corrective action at a facility where imme-
diate action is necessary to respond to an immi-
nent and' substantial endangerment to human
health or the environment if the State fails to
pay the cost share.
<8) Emergency procurement powers
Notwithstanding any other provision of law, the
Administrator may authorize the use of such
emergency procurement powers as he deems nec-
essary.
(9) Definition of owner
As used in this subsection, the term "owner"
does not include any person who, without partici-
pating in the management of an underground
storage tank and otherwise not engaged in petro-
leum production, refining, and marketing, holds
indicia of ownership primarily to protect the own-
er's security interest in the tank.
(10) Definition of exposure assessment
As used in this subsection, the term "exposure
assessment" means an assessment to determine
the extent of exposure of, or potential for expo-
sure of, individuals to petroleum from a release
from an underground storage tank based on such
factors as the nature and extent of contamination
and the existence of or potential for pathways of
human exposure (including ground or surface wa-
ter contamination, air emissions, and food chain
contamination), the size of the community within
the likely pathways of exposure, and the compari-
son of expected human exposure levels to the
short-term and long-term health effects associat-
ed with identified contaminants and any available
recommended exposure or tolerance limits for
such contaminants. Such assessment shall not
delay corrective action to abate immediate haz-
ards or reduce exposure.
(11) Facilities without financial responsibility
At any facility where the owner or operator has
failed to maintain evidence of financial responsi-
bility in amounts at least equal to the amounts
established by subsection (d)(5XA) of this section
(or a lesser amount if such amount is applicable to
such facility as a result of subsection (dX5)(B) of
this section) for whatever reason the Administra-
tor shall expend no monies from the Leaking
Underground Storage Tank Trust Fund to clean
up releases at such facility pursuant to the provi-
sions of paragraph (1) or (2) of this subsection.
At such facilities the Administrator shall use the
authorities provided in subparagraph (A) of para-
graph (1) and paragraph (4) of this subsection and
-------
42 § 6991b
SWDA §9003
FEDERAL ENVIRONMENTAL LAWS
690
section 6991e of this title to order corrective ac-
tion to clean up such releases. States acting
pursuant to paragraph (7) of this subsection shall
use the authorities provided in subparagraph (A)
of paragraph (1) and paragraph (4) of this subsec-
tion to order corrective action to clean up such
releases. Notwithstanding the provisions of this
paragraph, the Administrator may use monies
from the fund to take the corrective actions au-
thorized by paragraph (5) of this subsection to
protect human health at such facilities and shall
seek full recovery of the costs of all such actions
pursuant to the provisions of paragraph (6)(A) of
this subsection and without consideration of the
factors in paragraph (6XB) of this subsection.
Nothing in this paragraph shall prevent the Ad-
ministrator (or a State pursuant to paragraph (7)
of this subsection) from taking corrective action
at a facility where there is no solvent owner or
operator or where immediate action is necessary
to respond to an imminent and substantial endan-
germent of human health or the environment.
(Pub.L. 89-272, Title II, § 9003, as added Nov. 8, 1984,
Pub.L. 98-616, Title VI, § 601(a), 98 Stat 3279, and
amended Oct 17, 1986, Pub.L. 99-499, Title II, § 205(c),
(d), 100 Stat 1697, 1698.)
l So in original. Probably should be "subsections".
§ 6991c. Approval of State programs
[SWDA § 9004]
(a) Elements of State program
Beginning 30 months after November 8,1984, any
State may,1 submit an underground storage tank
release detection, prevention, and correction pro-
gram for review and approval by the Administrator.
The program may cover tanks used to store regulat-
ed substances referred to in' 6991(2)(A) or (B) or
both of this title. A State program may be ap-
proved by the Administrator under this section only
if the State demonstrates that the State program
includes the following requirements and standards
and provides for adequate enforcement of compli-
ance with such requirements and standards—
(1) requirements for maintaining a leak detec-
tion system, an inventory control system together
with tank testing, or a comparable system or
method designed to identify releases in a manner
consistent with the protection of human health
and the environment;
(2) requirements for maintaining records of
any monitoring or leak detection system or inven-
tory control system or tank testing system;
(3) requirements for reporting of any releases
and corrective action taken in response to a re-
lease from an underground storage tank;
(4) requirements for taking corrective action in
response to a release from an underground stor-
age tank;
(5) requirements for the closure of tanks to
prevent future releases of regulated substances
into the environment;
(6) requirements for maintaining evidence of
financial responsibility for taking corrective ac-
tion and compensating third parties for bodily
injury and property damage caused by sudden
and nonsudden accidental releases arising from
operating an underground storage tank;
(7) standards of performance for new under-
ground storage tanks; and
(8) requirements—
(A) for notifying the appropriate State agen-
cy or department (or local agency or depart-
ment) designated according to section
6991a(b)(l) of this title of the existence of any
operational or non-operational underground
storage tank; and
(B) for providing the information required on
the form issued pursuant to section 6991a(b)(2)
of this title.
(b) Federal standards
(1) A State program submitted under this section
may be approved only if the requirements under
paragraphs (1) through (7) of subsection (a) of this
section are no less stringent than the corresponding
requirements standards promulgated by the Admin-
istrator pursuant to section 6991b(a) of this title.
(2)(A) A State program may be approved without
regard to whether or not the requirements referred
to in paragraphs (1), (2), (3), and (5) of subsection (a)
of this section are less stringent than the corre-
sponding standards under section 6991b(a) of this
title during the one-year period commencing on the
date of promulgation of regulations under section
6991b(a) of this title if State regulatory action but
no State legislative action is required in. order to
adopt a State program.
(B) If such State legislative action is required,
the State program may be approved without regard
to whether or not the requirements referred to in
paragraphs (1), (2), (3), and (5) of subsection (a) of
this section are less stringent than the correspond-
ing standards under section 6991b(a) of this title
during the two-year period commencing on the date
of promulgation of regulations under section
-------
691
SOLID WASTE DISPOSAL
42 § 699Id
SWDA 39005
6991b(a) of this title (and during an additional one-
year period after such legislative action if regula-
tions are required to be promulgated by the State
pursuant to Buch legislative action).
(c) Financial responsibility
(1) Corrective action and ' jmpensation programs
administered by State or local agencies or depart-
ments may be submitted for approval under subsec-
tion (a)(6) of this section as evidence of financial
responsibility.
(2) Financial responsibility required by this sub-
section may be established in accordance with regu-
lations promulgated by the Administrator by any
one, or any combination, of the following: insur-
ance, guarantee, surety bond, letter of credit, quali-
fication as a self-insurer or any other method satis-
factory to the Administrator. In promulgating re-
quirements under this subsection, the Administrator
is authorized to specify policy or other contractual
terms including the amount of coverage required
for various classes and categories of underground
storage tanks pursuant to section 6991b(dX5) of this
title, conditions, or defenses which are necessary or
are unacceptable in establishing such evidence of
financial responsibility in order to effectuate the
purposes of this subchapter.
(3) In any case where the owner or operator is in
bankruptcy, reorganization, or arrangement pursu-
ant to the. Federal Bankruptcy Code or where with
reasonable diligence jurisdiction in any State court
of the Federal courts cannot be obtained over an
owner or operator likely to be solvent at the time of
judgment, any claim arising from conduct for which
evidence of financial responsibility must be provided
under this Bubsection may be asserted directly
against the guarantor providing such evidence of
financial responsibility. In the case of any action
pursuant to this paragraph such guarantor shall be
entitled to invoke all rights and defenses which
would have been available to the owner or operator
if any action had been brought against the owner or
operator ' by the claimant and which would have
been available to the guarantor if an action had
been brought against the guarantor by the owner or
operator.
(4) The total liability of any guarantor shall be
limited to the aggregate amount which the guaran-
tor has provided as evidence of financial responsibil-
ity to the owner or operator under this section.
Nothing in this subsection shall be construed to
limit any other State or Federal statutory, contrac-
tual or common law liability of a guarantor to its
owner or operator including, but not limited to, the
liability of such guarantor for bad faith either in
negotiating or in failing to negotiate the settlement
of any claim. Nothing in this subsection shall be
construed -to diminish the liability of any person
under section 9607 or 9611 of this title or other
applicable law.
(5) For the purpose of this subsection, the term
"guarantor" means any person, other than the own-
er or operator, who provides evidence of financial
responsibility for an owner or operator under this
subsection.
(d) EPA determination
(1) Within one hundred and eighty days of the
date of receipt of a proposed State program, the
Administrator shall, after notice and opportunity for
public comment, make a determination whether the
State's program complies with the provisions of this
section and provides for adequate enforcement of
compliance with the requirements and standards
adopted pursuant to this section.
(2) If the Administrator determines that a State
program complies with the provisions of this section
and provides for adequate enforcement of compli-
ance with the requirements and standards adopted
pursuant to this section, he shall approve the State
program in lieu of the Federal program and the
State shall have primary enforcement responsibility
with respect to requirements of its program.'
(e) Withdrawal of authorization
Whenever the Administrator determines after
public hearing that a State is not administering and
enforcing a program authorized under this subchap-
ter in accordance with the provisions of this .section,
he shall so notify the State. If appropriate action is
not taken within a reasonable time, not to exceed
one hundred and twenty days after such notifica-
tion, the Administrator shall withdraw approval of
such program and reestablish the Federal program
pursuant to this subchapter.
(Pub.L. 89-272, Title II, { 9004, as added Nov. 8, 1984,
Pub.L. 98-616, Title VI, g 601(a), 98 Stat 3282, and
amended Oct 17, 1986, ihib.L. 99-499, Title II, { 205(e),
100 Stat 1702.)
1 So in original.
l So in original. Probably should be followed by "section".
§ 699Id. Inspections, monitoring, testing,
and corrective action [SWDA
§ 9005]
(a) Furnishing information
. For the purposes of developing or assisting :in the
development of .. any regulation, conducting any
study1 taking any corrective action, or enforcing the
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42 § 6991d
SWDA §9005
FEDERAL ENVIRONMENTAL LAWS
692
provisions of this subchapter, any owner or operator
of an underground storage tank (or any tank sub-
ject to study under section 6991h of this title that is
used for storing regulated substances) shall, upon
request of any officer, employee or representative
of the Environmental Protection Agency, duly des-
ignated by the Administrator, or upon request of
any duly designated officer, employee, or represent-
ative of a State acting pursuant to subsection (h)(7)
of section 6991b of this title or with an approved
program, furnish information relating to such
tanks, their associated equipment, their contents,
conduct monitoring or testing, permit such officer
at all reasonable times to have access to, and to
copy all records relating to such tanks and permit
such officer to have access for corrective action.
For the purposes of developing or assisting in the
development of any regulation, conducting any
study, taking corrective action, or enforcing the
provisions of this subchapter, such officers, employ-
ees, or representatives are authorized—
(1) to enter at reasonable times any establish-
ment or other place where an underground stor-
age tank is located;
(2) to inspect and obtain samples from any
person of any regulated substances contained in
such tank;
(3) to conduct monitoring or testing of the
tanks, associated equipment, contents, or. sur-
rounding soils, air, surface water or ground wa-
ter; and
(4) w take corrective action.
Each such inspection shall be commenced and com-
pleted with reasonable promptness.
(b) Confidentiality
(1) Any records, reports, or information obtained
from any persons under this section shall be avail-
able to the public, except that upon a showing
satisfactory to the Administrator (or the State, as
the case may be) by any person that records, re-
ports, or information, or a particular part thereof, to
which the Administrator (or the State, as the case
may be) or any officer, employee, or representative
thereof has access under this section if made public,
would divulge information entitled to protection un-
der section 1905 of Title 18, such information or
particular portion thereof shall be considered confi-
dential in accordance with the purposes of that
section, except that such record, report, document,
or information may be disclosed to other officers,
employees, or authorized representatives of the
United States concerned with carrying out this
chapter, or when relevent * in any proceeding under
this chapter.
(2) Any person not subject to the provisions of
section 1905 of Title 18 who knowingly and willfully
divulges or discloses any information entitled to
protection under this subsection shall, upon convic-
tion, be subject to a fine of not more than $5,000 or
to imprisonment not to exceed one year, or both.
(3) In submitting data under this subchapter, a
person required to provide such data may—
(A) designate the data which such person be-
lieves is entitled to protection under this subsec-
tion, and
(B) submit such designated data separately
from other data submitted under this subchapter.
A designation under this paragraph shall be made in
writing and in such manner as the Administrator
may prescribe.
(4) Notwithstanding any limitation contained in
this section or any other provision of law, all infor-
mation reporteid to, or otherwise obtained, by the
Administrator (or any representative of the Admin-
istrator) under this chapter shall be made available,
upon written request of any duly authorized com-
mittee of the Congress, to such committee (includ-
ing records, reports, or information obtained by
representatives of the Environmental Protection
Agency).
(Pub.L 89-272, Title II, S 9005, as added Nov. 8, 1984,
Pub.L 9M16, Title VI, 5 601(a), 98 Stat 3284, and
amended Oct 17, 1986, Pub.L. 99-199, Title II, § 205(f),
100 Stat 1702.)
lSo in original. Probably should be followed by a comma.
* So in original. Probably should be "relevant".
§ 699le. Federal enforcement [SWDA
§ 9006]
(a) Compliance orders
(1) Except as-provided in paragraph (2), whenev-
er on the basis of any information, the Administra-
tor determines that any person is in violation of any
requirement of this subchapter, the Administrator
may issue an order requiring compliance within a
reasonable specified time period or the Administra-
tor may commence a civil action in the United States
district court in which the violation occurred for
appropriate relief, including a temporary or perma-
nent injunction.
(2) In the case of a violation of any requirement
of this subchapter where such violation occurs in a
State with a program approved under, section 6991c
of this title the Administrator shall give notice to
the State in which such violation has occurred prior
-------
693
SOLID WASTE DISPOSAL
42 § 6991g
SWDA §9006
to issuing an order or commencing a civil action
under this section.
(3) If a violator fails to comply with an order
under this subsection within the time specified in
the order, he shall be liable for a civil penalty of not
more than $25,000 for each day of continued non-
compliance.
(b) Procedure
Any order issued under this section shall become
final unless, no later than thirty days after the
order is served, the person or persons named there-
in request a public hearing. Upon such request the
Administrator shall promptly conduct a public hear-
ing. In connection with any proceeding under this
section the Administrator may issue subpoenas for
the attendance and testimony of witnesses and the
production of relevant papers, books, and doc-
uments, and may promulgate rules for discovery
procedures.
(c) Contents of order
Any order issued under this section shall state
with reasonable specificity the nature of the viola-
tion, specify a reasonable time, for compliance, and
assess a penalty, if any, which the Administrator
determines is reasonable taking into account the
seriousness "of the violation and any good faith
efforts to comply with the applicable requirements.
(d) Civil penalties
(1) Any owner who knowingly fails to notify or
submits false information pursuant to section
6991a(a) of this title shall be subject to a civil
penalty not to exceed $10,000 for each tank for
which notification is not given or false information
is submitted.
(2) Any owner or operator of an underground
storage tank who fails to comply with—
(A) any requirement or standard promulgated
by the Administrator under section 6991b of this
title;
(B) any requirement or standard of a State
program approved pursuant to section 6991c of
this title; or
(C) the provisions of section 6991b(g) of this
title (entitled "Interim Prohibition")
shall be subject to a civil penalty not to exceed
$10,000 for each tank for each day of violation.
(Pub.L 89-272, Title II, § 9006, as added Nov. 8, 1984,
Pub.L. 98-616, Title VI, § 601(a), 98 Stat 8286.)
§ 699If. Federal facilities [SWDA § 9007]
(a) Application of subchapter
Each department, agency, and instrumentality of
the executive, legislative, and judicial branches of
the Federal Government having jurisdiction over
any underground storage tank shall be subject to
and comply with all Federal, State, interstate, and
local requirements, applicable to such tank, both
substantive and procedural, in the same manner,
and to the same extent, as any other person is
subject to such requirements, including payment of
reasonable service charges. Neither the United
States, nor any agent, employee, or officer thereof,
shall be immune or exempt from any process or
sanction of any State or Federal court with respect
to the enforcement of any such injunctive relief.
(b) Presidential exemption
The President may iexempt any underground stor-
age tanks of any department, agency, or instrumen-
tality in the executive branch from compliance with
such a requirement if he determines it to be in the
paramount interest of the United States to do so.
No such exemption shall be granted due to lack of
appropriation unlesB the President shall have specif-
ically requested such appropriation as a part of the
budgetary process and the Congress shall have
failed to make available such requested appropria-
tions. Any exemption shall be for a period not in
excess of one year, but additional exemptions may
be granted for periodB not to exceed :one year upon
the President's making a new determination. The
President shall report each January to the Congress
all exemptions from the requirements of this section
granted during the preceding calendar year, togeth-
er with his reason for granting each such exemp-
tion.
(Pub.L. 89-272, Title II, § 9007, as added Nov. 8, 1984,
Pub.L. 98-616, Title VI, § 601(a), 98 Stat. 8286.)
§ 6991g. State authority, [SWDA § 9008]
Nothing in this subchapter shall preclude or deny
any right of any State or political subdivision there-
of to adopt or enforce any regulation/ requirement,
or standard of performance respecting underground
storage tanks that is more stringent than a regula-
tion, requirement, or standard of performance in
effect under this subchapter or to impose any addi-
tional liability with respect to the release of regulatr
ed substances within such State or political subdivi-
sion.
(Pub.L. 89-272, Tide II, § 9008, as added Nov. 8, 1984,
Pub.L. 98-616, Title VI, § 601(a), 98 Stat 3286, and
amended Oct 17, 1986, Pub.L. 99-499, Title II, § 205(g),
100 Stat 1702.) '
-------
FEDERAL ENVIRONMENTAL LAWS 694
42 § 699lh
SWDA 99009
§ 6991 h. Study of underground storage
tanks [SWDA § 9009]
(a) Petroleum tanks
Not later than twelve months after November 8,
1984, the Administrator shall complete a study of
underground storage tanks used for the storage of
regulated substances defined in section 6991(2XB)
of this title.
(b) Other tanks
Not later than thirty-six months after November
8, 1984, the Administrator shall complete a study of
all other underground storage tanks.
(c) Elements of studies
The studies under subsections (aj and (b) of this
section shall include an assessment of the ages,
types (including methods of manufacture, coatings,
protection systems, the compatibility of the con-
struction materials and the installation methods)
and locations (including the climate of the locations)
of such tanks; soil conditions, water tables, and the
hydrogeology of tank locations; the relationship
between the foregoing factors and the likelihood of
releases from underground storage tanks; the ef-
fectiveness and costs of inventory systems, tank
testing, and leak detection systems; and such other
factors as the Administrator deems appropriate.
(d) Farm and heating oil tanks
Not later than thirty-six months after November
8, 1984, the Administrator shall conduct a study
regarding the tanks referred to in section 6991(1)(A)
and (B) of this title. Such study shall include esti-
mates of the number and location of such tanks and
an analysis of the extent to which there may be
releases or threatened releases from such tanks into
the environment.
(e) Reports
Upon completion of the studies authorized by this
section, the Administrator shall submit reports to
the President and to the Congress containing the
results of the studies and recommendations respect-
ing whether or not such tanks should be subject to
the preceding provisions of this subchapter.
(f) Reimbursement
(1) If any owner or operator (excepting an agen-
cy, department, or instrumentality of the United
States Government, a State or a political subdivision
thereof) shall incur costs, including the loss of busi-
ness opportunity, due to the closure or interruption
of operation of an underground storage tank solely
for the purpose of conducting studies authorized by
this section, the Administrator shall provide such
person fair and equitable reimbursement for such
costs.
(2) All claims for reimbursement shall be filed
with the Administrator not later than ninety days
after the closure or interruption which gives rise to
the claim.
(3) Reimbursements made under this section
shall be from funds appropriated by the Congress
pursuant to the authorization contained in section
6916(g) of this title.
(4) For purposes of judicial review, a determina-
tion by the Administrator under this subsection
shall be considered final agency action.
(Pub.L 89-272, Title II, g 9009, as added Nov. 8, 1984,
Pub.L 98-616, Title VI, 5 601(a), 98 Stat 3287.)
§ 699li. Authorization of appropriations
[SWDA § 9010]
For authorization of appropriations to carry out
this subchapter, see section 6916(g) of this title.
(Pub.L 89-272, Title II, g 9010, as added Nov. 8, 1984,
Pub.L 98-616, Title VI, $ 601(a), 98 Stat 8287.)
SUBCHAPTER X—DEMONSTRATION
MEDICAL WASTE TRACKING
PROGRAM
§ 6992. Scope of demonstration program
for medical waste [SWDA
§ 11001]
(a) Covered states
The States within the demonstration program es-
tablished under this subchapter for tracking medical
wastes shall be New York, New Jersey, Connecti-
cut, the States contiguous to the Great Lakes and
any State included in the program through the
petition procedure described in subsection (c) of this
section, except for any of such States in which the
Governor notifies the Administrator under subsec-
tion (b) of this section that such State shall not be
covered by the program.
(b) Opt out
(1) If the .Governor of any State covered under
subsection (a) of this section which is not contiguous
to the Atlantic Ocean notifies the Administrator
that such State elects not to participate in the
demonstration program, the Administrator shall re-
move such State from the program.
(2) If the Governor of any other State covered
under subsection (a) of this section notifies the
Administrator that such State has implemented a
medical waste tracking program that is no less
-------

1 (7-1-92 Edition)
lications for final
pproved by EPA
1, 1986, June 6
1990.
and Regulations.
isconsln statutory
tlons are incorpo-:
id codified as part
iste management
,itle C of RCRA,
j. This incorpora-
s approved by the
ral Register in ac-
2. 552(a).
tutes, Volume 3,
44.43-433; 144.44
); 144.441(l)-(2);
, '(f)/ and (g);
CcMg); 144.441(5)
14.442(1), (4)-(ll);
(4.60-144.63; and,
(3) (except for
15-86): Copies of
tes that are incor-
in this paragraph
le Revlsor of Stat-
esf 'n Street,
53'
cdIl /e. Code,.
R: i^i.01-181,02;
i(3)-181.07; 181.09;
81.12(4)(b)-181.27;
181.49-181.54;
181.55(10); Appen-
2 (Effective April
tie Wisconsin regu-
>rporated by refer-
¦aph are available
of Statutes, suite
n Street, Madison,
statutory and reg-
concerning State
>m of information,
nation procedures,
led herein for en-
are part of the au-
ratn.
atutes. Volume 1,
2 (2) and (5); 19.35
19.37 (1) and (2):
Les, Volume 3.
14.73-144.74; 144.76
isconsin Statutes,
37; 227.09, 227.14;
sconsin Statutes,
1985-86).
Iministrative Code,
2.19; 2.195(1); and
Environmental Protection Agency
2.195(5) (effective April 1, 1984): Wis-
consin Administrative Code, Volume
12, § NR: 181.56 (Effective April 1.
1988).
(3) The following statutory and reg-
ulatory provisions are broader in scope
than the Federal program, are hot
part of the authorized program, and
are not codified herein for enforce-
ment purposes.
(1) Wisconsin Statutes, Volume 3,
Sections: 144.434-144.439; 144.41;
144.44(4)(a); 144.441(3) (a) (c) and (e);
144.441(4) (b) and (h); 144.441(5)(a);
144.441(7); 144.442 (2) and (3); 144.445-
144.48; 144.64(1); 144.64(2)(e)(l);
144.64(4); 144.645-144.68; 144.725;
144.75-144.76(1); and . 144.76(4)-
144.799(6) (1985-86).
(ii) Wisconsin Administrative Code,
Volume 12, Sections NR: 181.06 (1)
and (2); 181.08; 181.12(4)(a); 181.31(1);
181.48; and 181.55 (1) and (3) (effective
July 1,1985).
(b) Memorandum of Agreement. The
Memorandum of Agreement between
EPA Region V and the Wisconsin De-
partment of Natural Resources, signed
by the EPA Deputy Regional Adminis-
trator on October 19, 1989, is codified
as part of the authorized hazardous
waste management program under
subtitle C of RCRA, 42 U.S.C. 6921 et
seq.
(c) Statement of Legal Authority. (1)
"Attorney General's Statement for
Pinal Authorization" signed by the At-
torney General of Wisconsin on July
23, 1985 is codified as part of the au-
thorized hazardous waste management
program under Subtitle C of RCRA,
42 U.S.C. 6921 et seq.
(2) Supplemental "Attorney Gener-
al's Statement for Final Authoriza-
tion", signed by the Attorney General
of Wisconsin on December 27, 1985,
June 30, 1987, July 22, 1987, and
March 29, 1988, are codified as part of
the authorized hazardous waste man-
agement program under subtitle C of
RCRA, 42 U.S.C. 6921 et seq.
r (d) Program Description. The Pro-
gram Description and any other mate-
: rials submitted as part of the original
application or as supplements thereto
are codified as part of the authorized
Hazardous waste management pro-
sram under subtitle C of RCRA, 42
O.S.C. 6921 et seq. The Program De-
Pt. 280
scription Addendums dated October
1986, June 30. 1987, July 23, 1987,
March 29, 1988, and September 14,
1988, are codified as part of the au-
thorized hazardous waste management
program under subtitle C of RCRA, 42
U.S.C. 6921 et sen.
[54 PR 7424, Feb. 21, 1989, as amended at 55
FR 11911, Mar. 30, 1990)
§9 272.2502—272.2549 [Reserved]
Subport 12—Wyoming
§§272.2550—272.2599 [Reserved!
Subpart AAA—Guam
§§ 272.2600—272.2649 [Reserved]
Subpart BBB—Puerto Rico
§§ 272.2650—272.2699 [Reserved]
Subpart CCC—Virgin Islands
§§272.2700—272.2749 [Reserved]
Subpart DDD—American Samoa
§§ 272.2750—272.2799 [Reserved]
Subpart EEE—Commonwealth of the
Northern Mariana Islands
§§ 272.2800—272.2849 [Reserved]
PART 280—TECHNICAL STANDARDS
AND CORRECTIVE ACTION RE-
QUIREMENTS FOR OWNERS AND
OPERATORS OF UNDERGROUND
STORAGE TANKS (UST)
Subpart A—Program Scope and Interim
Prohibition
Sec.
280.10 Applicability.
280.11 Interim prohibition for deferred
UST systems.
280.12 Definitions.
Subpart B—UST Detign, Contraction,
Inatallatlon and Notification
280.20 Performance standards for new
UST systems.
280.21 Upgrading ol existing US'"' systems.
989
-------
§280.10
40 CFR Ch. I (7-1-92 Edition)
Sec..
280.22 Notification requirements.
Subpart C—General Operating Requirements
280.30 Spill and overfill control.
280.31 Operation and maintenance of cor-
rosion protection.
280.32 Compatibility.
280.33 Repairs allowed.
280.34 Reporting and recordkeeping.
Subpart D—Release Detection
280.40 General requirements for all UST
systems.
280.41 Requirements for petroleum UST
systems.
280.42 Requirements for hazardous sub-
stance UST systems.
280.43 Methods of release detection for
tanks.
280.44 Methods of release detection for
piping.
280.45 Release detection recordkeeping.
Subpart £—Release Reporting, Investigation,
and Confirmation
280.50 Reporting of suspected releases.
280.51 Investigation due to off-site Im-
pacts.
•280.52 Release Investigation and confirma-
tion steps.
280.53 Reporting and cleanup of spills and
overfills.
Subpart F—Release Response and Corrective
Action for UST Systems Containing Retro-
teum or Hazardous Substances
280.60 General.
280.81 Initial response.
280.62 Initial abatement measures and site
. check.
280.63 Initial site characterization.
280.64 Free product removal.
280.65 Investigations for soil and ground-
water cleanup.
280.66 Corrective action plan.
280.67 Public participation.
Subpart G—Oirt-of-Servlce UST Systems and
Closure
280.70 Temporary closure.
280.71 Permanent closure and changes-in-
servlce.
280.72 Assessing the site at closure or
change-in-service.
280.73 Applicability to previously closed
UST systems.
280.74 Closure records.
Subpart H—Financial Responsibility
260.90 Applicability.
Sec.
280.91 Compliance dates.
280.92 Definition of terms.
280.93 Amount and scope of required fi-
nancial responsibility.
280.94 Allowable mechanisms "and combi-
nations of .mechanisms.
280.95 Financial test of self-Insurance.
280.96 Guarantee.
280.97 Insurance and risk retention group
coverage.
280.98 Surety bond.
280.99 Letter of credit.
280.100 Use of state-requirea mechanism.
280.101 State fund or other state assur-
ance.
280.102 Trust fund.
2B0.103 Standby trust fund.
280.104 Substitution of financial assurance"
mechanisms by owner or operator.
280.105 Cancellation or nonrenewal by a
provider of financial assurance.
280.106 Reporting by owner or operator.
280.107 Recordkeeping.
280.108 Drawing on financial assurance
mechanisms.
280.109 Release from the requirements.
280.110 Bankruptcy or other Incapacity ui„
owner or operator or provider of fin>m-
clal assurance.
280.111 Replenishment of guarantees, let-
ters of credit, or surety bonds.
280.112 Suspension of enforcement. [Re-
served]
Appendices to Part 280
Appendix I to Part 280—Notification for
Underground Storage Tanks (Form)
Appendix II to Part 280—List of Agencies
Designated to Receive Notifications
Appendix III to Part 280—Statement for
Shipping Tickets and Invoices
Authority: 42 U.S.C. 6912, 6991, 6991a,
6991b. 6991c, 6991d. 6991e, 6991f,and 699lh.
Source: 53 FR 37194, Sept. 23, 1988,
unless otherwise noted.
Subpart A—Program Scope and
Interim Prohibition
§ 280.10 Applicability.
(a) The requirements of this part
apply to all owners and operators of
an UST system as defined in-§ 280.12
except as otherwise provided lii para-
graphs (b), (c), and (d) of this section.
Any UST system listed in paragraph'
(c) of this section must meet the re--:
qulrements of § 280.11.
(b) The following UST systems are"
excluded from the requirements of-i
this part:
nnn
Environmental Protection Agency
(1) Any UST system holding hazard-
ous wastes listed or Identified under
Subtitle C of the Solid Waste Disposal
Act, or a mixture of such hazardous
waste and other regulated substances.
(2) Any wastewater treatment tank
system that is part of a wastewater
treatment facility regulated under sec-
tion 402 or 307(b) of the Clean Water
Act.
(3) Equipment or machinery that
contains regulated substances for
operational purposes such as hydrau-
lic lift tanks and electrical equipment
tanks.
(4) Any UST system whose capacity
is 110 gallons or less.
(5) Any UST system that contains a
de minimis concentration of regulated
substances.
(6) Any emergency spill or overflow
containment UST system that is expe-
ditiously emptied after use.
(c) Deferrals. Subparts B, C, D, E,
and G do not apply to any of the fol-
lowing types of UST systems:
(1) Wastewater treatment tank sys-
tems;
(2) Any UST systems containing ra-
dioactive material that are regulated
-under the Atomic Energy Act of 1954
(42 U.S.C. 2011 and following);
(3) Any UST system that is part of
an emergency generator system at nu-
clear power generation facilities regu-
lated by the Nuclear Regulatory Com-
mission under 10 CFR part 50, appen:
dlx A;
(4) Airport hydrant fuel distribution
systems; and
(5) UST systems with field-con-
structed tanks.
(d) Deferrals. Subpart D does not
apply to any UST system that stores
fuel solely for use by emergency power
generators.
1280.11 Interim prohibition for deferred
UST systems.
(a) No person may install an UST
system listed in $ 280.10(c) for the pur-
pose of storing regulated substances
unless the UST system (whether of
single- or double-wall construction):
v(l) Will prevent releases due to cor-
rosion or structural failure for the
operational life of the UST system;
(2) Is cathodically protected against
corrosion, constructed of noncorrodi-
§280.12
ble material, steel clad with a noncor-
rodlble material, or designed in a
manner to prevent the release or
threatened release of any stored sub-
stance; and
(3) Is constructed or lined with ma-
terial that is compatible with the
stored substance.
(b) Notwithstanding paragraph (a)
of this section, an UST system without
corrosion protection may be installed
at a site that is determined by a corro-
sion expert not to be corrosive enough
to cause it to have a release due to cor-
rosion during its operating life.
Owners and operators must maintain
records that demonstrate compliance
with the requirements of this para-
graph for the remaining life of the
tank.
Note: The National Association of Corro-
sion Engineers Standard RP-02-85, "Con-
trol of External Corrosion on Metallic
Buried. Partially Burled, or Submerged
Liquid Storage Systems," may be used as
guidance for complying with paragraph (b)
of this section.
8 280.12 Definitions.
A boveground release means any re-
lease to the surface of the land or to
surface water. This includes, but is not
limited to, releases from the above-
ground portion of an UST system and
aboveground releases associated with
overfills and transfer operations as the
regulated substance moves to or from
an UST system.
Ancillary equipment means any de-
vices including, but not limited to,
such devices as piping, fittings,
flanges, valves, and pumps used to dis-
tribute, meter, or control the flow of
regulated substances to and from an
UST.
Belowground release means any re-
lease to the subsurface of the land and
to ground water. This includes, but is
not limited to, releases from the be-
lowground portions of an underground
storage tank system and belowground
releases associated with overfills and
transfer operations as the regulated
substance moves to or from an under-
ground storage tank.
Beneath the surface of the ground
means beneath the ground surface or
otherwise covered with earthen mate-
rials.
-------
§280.12
40 CFR Ch. I (7-1-92 Edition)
Cathodic protection is a technique
to prevent corrosion of a metal surface
by making that surface the cathode of
an electrochemical cell. For example, a
tank system can be cathodically pro-
tected through the application of
either galvanic anodes or impressed
current.
Cathodic protection tester means a
person who can demonstrate an under-
standing of the principles and meas-
urements of all common types of ca-
thodic protection systems as applied to
buried or submerged metal piping and
tank systems. At a minimum, such per-
sons must have education and experi-
ence in soil resistivity, stray current,
structure-to-soil potential, and compo-
nent electrical isolation measurements
of buried metal piping and tank sys-
tems.
CERCLA means the Comprehensive
Environmental Response, Compensa-
tion. and Liability Act of 1980, as
amended.
Compatible means the ability of two
or more substances to maintain their
respective physical and chemical prop-
erties upon contact with one another
for the design life of the tank system
under conditions likely to be encoun-
tered in the UST.
Connected piping means all under-
ground piping including valves, elbows,
joints, flanges, and flexible connectors
attached to a tank system through
which regulated substances flow. For
the purpose of determining how much
piping is connected to any individual
UST system, the piping that joins two
UST systems should be allocated
equally between them.
Consumptive use with respect to
heating oil means consumed on the
premises.
Corrosion expert means a person
who, by reason of thorough knowledge
of the physical sciences and the princi-
ples of engineering and mathematics
acquired by a professional education
and related practical experience, is
qualified to engage in the practice of
corrosion control on buried or sub-
merged metal piping systems and
metal tanks. Such a person must be
accredited or certified as being quali-
fied by the National Association of
Corrosion Engineers or be a registered
professional engineer who has certifi-
cation or licensing that includes edu-
cation and experience in corrosion
control of buried or submerged metal
piping systems and metal tanks.
Dielectric material means a material
that does not conduct direct electrical
current. Dielectric coatings are used to
electrically isolate UST systems from
the surrounding soils. Dielectric bush-
ings are used to electrically isolate
portions of the UST system (e.g., tank
from piping).
Electrical equipment means under-
ground equipment that contains di-
electric fluid that is necessary for the
operation of equipment such as trans-
formers and buried electrical cable.
Excavation zone means the volume
containing the tank system and back-
fill material bounded by the ground
surface, walls, and floor of the pit and
trenches into which the UST system is
placed at the time of installation.
Existing tank system means a tank
system used to contain an accumula-
tion of regulated substances or for
which installation has commenced on
or before December 22, 1988. Installa-
tion is considered to have commenced
if:
(a) The owner or operator has ob-
tained all federal, state, and local ap-
provals or permits necessary to begin
physical construction of the site or in-
stallation of the tank system; and if,
(b)(1) Either a continuous on-site
physical construction or installation
program has begun; or,
(2) The owner or operator has en-
tered into contractual obligations—
which cannot be cancelled or modified
without substantial loss—for physical
construction at the site or installation
of the tank system to be completed
within a reasonable time.
Farm tank is a tank located on a
tract of land devoted to the produc-
tion of crops or raising animals, in-
cluding fish, and associated residences
and Improvements. A farm tank must
be located on the farm property.
"Farm" includes fish hatcheries,
rangeland and nurseries with growing
operations.
Flow-through process tank is a tank
that forms an integral part of a pro-
duction process through which there
is a steady, variable, recurring, or
intermittent flow of materials during
Environmental Protection Agency
the operation of the process. Flow-
through process tanks do not include
tanks used for the storage of materials
prior to their introduction into the
production process or for the storage
of finished products or by-products
from the production process.
Free product refers to a regulated
substance that is present as a non-
aqueous phase liquid (e.g., liquid not
dissolved in water.)
Gathering lines means any pipeline,
equipment, facility, or building used in
the transportation of oil or. gas during
oil or gas production or gathering op-
erations.
Hazardous substance UST system
means an underground storage tank
system that contains a hazardous sub-
stance defined in section 101(14) of
the Comprehensive Environmental
Response. Compensation and Liability
Act of 1980 (but not including any sub-
stance regulated as a hazardous waste
under subtitle C) or any mixture of
such substances and petroleum, and
which is not a petroleum UST system.
Heating oil means petroleum that is
No. 1, No. 2, No. 4—light, No. 4—
heavy. No. 5—light. No. 5—heavy, and
No. 6 technical grades of fuel oil; other
residual fuel oils (Including Navy Spe-
cial Fuel Oil and Bunker C); and other
fuels when used as substitutes for one
of these fuel oils. Heating oil is typi-
cally used in the operation of heating
equipment, boilers, or furnaces.
Hydraulic lift tank means a tank
holding hydraulic fluid for a closed-
loop mechanical system that uses com:
pressed air or hydraulic fluid to oper-
ate lifts, elevators, and other similar
devices.
Implementing agency means EPA,
or, in the case of a state with a pro-
gram approved under section 9004 (or
pursuant to a memorandum of agree-
ment with EPA), the designated state
or local agency responsible for carry-
ing out an approved UST program.
Liquid trap means sumps, well cel-
lars, and other traps used in associa-
tion with oil and gas production, gath-
ering, and extraction operations (in-
cluding gas production plants), for the
purpose of collecting oil, water, and
other liquids. These liquid traps may
temporarily collect liquids for subse-
quent disposition or reinjection into a
§ 280.12
production or pipeline stream, or may
collect and separate liquids from a gas
stream.
Maintenance means the normal
operational upkeep to prevent an un-
derground storage tank system from
releasing product.
Motor fuel means petroleum or a pe-
troleum-based substance that is motor
gasoline, aviation gasoline. No. 1 or
No. 2 diesel fuel, or any grade of gaso-
hol, and is typically used in the oper-
ation of a motor engine.
New tank system means a tank
system that will be used to contain an
accumulation of regulated substances
and for which installation has com-
menced after December 22, 1988. (See
also "Existing Tank System.")
Noncommercial purposes with re-
spect to motor fuel means not for
resale.
On the premises where stored with
respect to heating oil means UST sys-
tems located on the same property
where the stored heating oil is used.
Operational life refers to the period
beginning when installation of the
tank system has commenced until the
time the tank system is properly
closed under Subpart G.
Operator means any person in con-
trol of, or having responsibility for,
the daily operation of the UST
system.
Overfill release is a release that
occurs when a tank is filled beyond its
capacity, resulting in a discharge of
the regulated substance to the envi-
ronment.
Owner means:
(a) In the case of an UST system in
use on November 8, 1984, or brought
into use after that date, any person
who owns an UST system used for
storage, use, or dispensing of regulated
substances; and
(b) In the case of any UST system in
use before November 8. 1984, but no
longer in use on that date, any person
who owned such UST immediately
before the discontinuation of its use.
Person means an individual, trust,
firm, joint stock company, Federal
agency, corporation, state, municipal-
ity, commission, political subdivision
of a state, or any interstate body.
"Person" also includes a consortium, a
OQ3
-------
§280.12
40 CFR Ch. I (7-1-92 Edition)
joint venture, a commercial entity, and
the United States Government.
Petroleum UST system means an un-
derground storage tank system that
contains petroleum or a mixture of pe-
troleum with de minimis quantities of
other regulated substances. Such sys-
tems Include those containing motor
fuels, jet fuels, distillate fuel oils, re-
sidual fuel oils, lubricants, petroleum
solvents, and used oils.
Pipe or Piping means a hollow cylin-
der or tubular conduit that is con-
structed of non-earthen materials.
Pipeline facilities
-------
§ 280.20
40 CFR Ch. I (7-1-92 Edition)
(A) Steel Tank Institute "Specification for
STI-P3 System of External Corrosion Pro-
tection of Underground Steel Storage
Tanks";
(B) Underwriters Laboratories Standard
1746. "Corrosion Protection Systems for Un-
derground Storage Tanks";
(C) Underwriters Laboratories of Canada
CAN4-S603-M85, "Standard for Steel Un-
derground Tanks for Flammable and Com-
bustible Liquids." and CAN4-G03.1-M85.
"Standard, for Galvanic Corrosion Protec-
tion Systems for Underground Tanks for
Flammable and Combustible Liquids." and
CAN4-S631-M84, "Isolating Bushings for
Steel Underground Tanks Protected with
Coatings and Galvanic Systems"; or
(D) National Association of Corrosion En-
gineers Standard RP-02-85. "Control of Ex-
ternal Corrosion on Metallic Burled, Partial-
ly Burled, or Submerged Liquid Storage Sys-
tems," and Underwriters Laboratories
Standard 58. "Standard for Steel Under-
ground Tanks for Flammable and Combusti-
ble Liquids."
(3) The tank is constructed of a
steel-fiberglass-reinforced-plastlc com-
posite; or
Note; The following industry codes may
be used to comply with paragraph (a)(3) of
this section; Underwriters Laboratories
Standard 17.46, "Corrosion Protection Sys-
tems for Underground Storage Tanks," or
the Association for Composite Tanks ACT-
100, "Specification for the Fabrication of
FRP Clad Underground Storage Tanks."
(4) The tank is constructed of metal
without additional corrosion protec-
tion measures provided that:
(i) The tank is installed at a site that
is determined by a corrosion expert
not to be corrosive enough to cause it
to have a release due to corrosion
during its operating life; and
(ii) Owners and operators maintain
records that demonstrate compliance
with the requirements of paragraphs
(a)(4)(i) for the remaining life of the
tank; or
(5) The tank construction and corro-
sion protection are determined by the
implementing agency to be designed to
prevent the release or threatened re-
lease of any stored regulated sub-
stance in a manner that is no less pro-
tective of human health and the envi-
ronment than paragraphs (a) (1)
through (4) of this section.
(b) Piping. The piping that routinely
contains regulated substances and is in
contact with the ground must be prop-
erly designed, constructed, and pro-
tected from corrosion in accordance
with a code of practice developed by a
nationally recognized association^'in-
dependent testing laboratory as speci-
fied below:
(1) The piping is constructed of fi-
berglass-reinforced plastic; or
Note; The following codes and standards
may be used to comply with naragraph
(b)(1) of this section:
(A) Underwriters Laboratories Subject
971. "UL Listed Non-Metal Pipe";
(B) Underwriters Laboratories Standard
567, "Pipe Connectors for Flammable and
Combustible and LP Gas";
(C) Underwriters Laboratories of Canada
Guide ULC-107, "Glass Fiber Reinforced
Plastic Pipe and Fittings for Flammable
Liquids"; and
(D) Underwriters Laboratories of Canada
Standard CAN 4-S633-M81, "Flexible Un-
derground Hose Connectors."
(2) The piping is constructed of steel
and cathodically protected in the fol-
lowing manner:
(i) The piping is coated with a suita-
ble dielectric material;
(ii) Field-installed cathodic protec-
tion systems are designed by a corro-
sion expert;
(iii) Impressed current systems are
designed to allow determination of
current operating status as required in
§ 280.31(c); and
(iv) Cathodic protection systems are
operated and maintained in accord-
ance with § 280.31 or guidelines estab-
lished by the implementing agency; or
Note: The following codes and standards
may be used to comply with paragraph
(b)(2) of this section:
(A) National Fire Protection Association
Standard 30, "Flammable and Combustible
Liquids Code";
(B) American Petroleum, Institute Publi-
cation 1615, '"Installation of Underground
Petroleum Storage Systems";
-------
§ 280.21
40 CFR Ch. I (7-1-92 Edition)
(5) All work listed in the manufac-
turer's installation checklists has been
completed: or
(6) The owner and operator have
complied with another method for en-
suring compliance with paragraph (d)
of this section that is determined by
the implementing agency to be no less
protective of human health and the
environment.
[S3 FR 37194, Sept. 23, 1988, as amended at
56 FR 38344, Aug. 13. 1991]
§ 280.21 Upgrading of existing UST sys-
tems.
(a) Alternatives allowed. Not later
than December 22, 1998, all existing
UST systems must comply with one of
the following requirements:
(1) New UST system performance
standards under § 280.20:
(2) The upgrading requirements in
paragraphs (b) through (d) of this sec-
tion; or
(3) Closure requirements under sub-
part G of this part, including applica-
ble requirements for corrective action
under subpart F.
(b) Tank upgrading requirements.
Steel tanks must be upgraded to meet
one of the following requirements in
accordance with a code of practice de-
veloped by a nationally recognized as-
sociation or independent testing labo-
ratory:
(1) Interior lining. A tank may be
upgraded by internal lining if:
(1) The lining is installed in accord-
ance with the requirements of
§ 280.33, and
(ii) Within 10 years after lining, and
every 5 years. thereafter, the lined
tank is internally inspected and found
to be structurally sound with the
lining still performing in accordance
with original design specifications.
(2) Cathodic protection. A tank may
be upgraded by cathodic protection if
the cathodic protection system meets
the requirements of § 280.20
-------
§ 280.31
40 CFR Ch. I (7-1-92 Edition)
transfer is made and that the transfer
operation is monitored constantly to
prevent overfilling and spilling.
Note: The transfer procedures described
In National Fire Protection Association Pub-
lication 385 may be used to comply with
paragraph (a) of this section. Further guid-
ance on spill and overfill prevention appears
in American Petroleum Institute Publica-
tion 1621, "Recommended Practice for Bulk
Liquid Stock Control at Retail Outlets." and
National Fire Protection Association Stand-
ard 30, "Flammable and Combustible Liq-
uids Code."
(b) The owner and operator must
report, investigate, and clean up any
spills and overfills in accordance with
.§ 280.53.
§ 280.31 Operation and maintenance of
corrosion protection.
All owners and operators of steel
UST systems with corrosion protection
must comply with the following re-
quirements to ensure that releases due
to corrosion are prevented for as long
as the UST system is used to store reg-
ulated substances:
(a) All corrosion protection systems
must be operated and maintained to
continuously provide corrosion protec-
tion to the metal components of that
portion of the tank and piping that
routinely contain regulated substances
and are in contact with the ground.
(b) All UST systems equipped with
cathodic protection systems must be
inspected for proper operation by a
qualified cathodic protection tester in
accordance with the following require-
ments:
(1) Frequency. All cathodic protec-
tion systems must be tested within 6
months of installation and at least
every 3 years thereafter or according
to another reasonable time frame es-
tablished by the implementing agency;
and
(2) Inspection criteria. The criteria
that are used to determine that ca-
thodic protection is adequate as re-
quire^.by this section must be in ac-
cordance with a code of practice devel-
oped by a nationally recognized asso-
ciation.
Note: National Association of Corrosion
Engineers Standard RP-02-85, "Control of
External Corrosion on Metallic Buried, Par-
tially. Buried, or Submerged Liquid Storage
Systems," may be used to comply with para-
graph (b)(2) of this section.
(c) UST systems with impressed cur-
rent cathodic protection systems must
also be inspected every 60 days to
ensure the equipment is running prop-
erly.
' (d) For UST systems using cathodic
protection, records of the operation of
the cathodic protection must be main-
tained (in accordance with § 280.34) to
demonstrate compliance with the per-
formance standards in this section.
These records must provide the follow-
ing:
(1) The results of the last three in-
spections required in paragraph (c) of
this section; and
(2) The results of testing from the
last two inspections required in para-
graph (b) of this section;
§ 280.32 Compatibility.
Owners and operators must use an
UST system made of or lined with ma-
terials that are compatible with the
substance stored in the UST system.
Note: Owners and operators storing alco-
hol blends may use the following codes to
comply with the requirements of this sec-
tion:
(a) American Petroleum Institute Publica-
tion 1626, "Storing and Handling Eth&nol
and Gasoline-Ethanol Blends at Distribu-
tion Terminals and Service Stations": and
(b) American Petroleum Institute Publica-
tion 1627, "Storage and Handling of Qaso-
line-Methanol/Cosolvent Blends at Distri-
bution Terminals and Service Stations."
§ 280.33 Repairs allowed.
Owners and operators of UST sys-
tems must ensure that repairs will pre-
vent releases due to structural failure
or corrosion as long as the UST system
is used to store regulated substances.
The repairs must meet the following
requirements:
(a) Repairs to UST systems must be
properly conducted in accordance with
a code of practice developed by a na-
tionally recognized association or an
independent testing laboratory.
Note: The following codes and standards
may be used to comply with paragraph (a)
of this section: National Fire Protection As-
sociation Standard 30, "Flammable and
Combustible Liquids Code"; American Pe-
troleum Institute Publication 2200, "Repalr-
mnn
Environmental Protection Agency
ing Crude Oil, Liquified Petroleum Gas, and
Product "ipelines"; American Petroleum In-
stitute Publication 1631, "Recommended
Practice for the Interior Lining of Existing
Steel Underground Storage Tanks": and Na-
tional Leak Prevention Association Stand-
ard 631, "Spill Prevention, Minimum 10
Year Life Extension of Existing Steel Un-
derground Tanks by Lining Without the Ad-
dition of Cathodic Protection."
(b) Repairs to fiberglass-reinforced
plastic tanks may be made by the
manufacturer's authorized representa-
tives or in accordance with a code of
practice developed by a nationally rec-
ognized association or an independent
testing laboratory.
(c) Metal pipe sections and fittings
that have released product as a result
of corrosion or other damage must be
replaced. Fiberglass pipes and fittings
may be repaired in accordance with
the manufacturer's specifications.
(d) Repaired tanks and piping must
be tightness tested in accordance with
§ 280.43(c> and § 280.44(b) within 30
days following the date of the comple-
tion of the repair except as provided in
paragraphs (d) (1) through (3), of this
section:
(1) The repaired tank is internally
Inspected In accordance with a code of
practice developed by a nationally rec-
ognized association or an independent
testing laboratory; or
(2) The repaired portion of the UST
system is monitored monthly for re-
leases in accordance with a method
specified in § 280.43 (d) through (h); or
(3) Another test method is used that
is determined by the implementing
agency to be no less protective of
human health and the environment
than those listed above.
(e) Within 6 months following the
repair of any cathodically protected
UST system, the cathodic protection
system must be tested in accordance
with § 280.31 (b) and (c) to ensure that
it is operating properly.
(f) UST system owners and opera-
tors must maintain records of each
repair for the remaining operating life
of the UST system that demonstrate
compliance with the requirements of
this section.
§ 280.34 Reporting and recordkeeping.
Owners and operators of UST sys-
tems must cooperate fully with inspec-
§ 280.34
tions, monitoring and testing conduct-
ed by the implementing agency, as
well as requests for document submis-
sion, testing, and monitoring by the
owner or operator pursuant to section
9005 of Subtitle I of the Resource
Conservation and Recovery Act, as
amended.
(a) Reporting. Owners and operators
must submit the following information
to the implementing agency:
(1) Notification for all UST systems
(§ 280.22), which includes certification
of installation for new UST systems
(§ 280.20(e)),
(2) Reports of all releases including
suspected releases (§ 280.50), spills and
overfills (§ 280.53), and confirmed re-
leases (§ 280.61);
(3) Corrective actions planned or
taken including initial abatement
measures (§ 280.62), initial site charac-
terization (§ 280.63), free product re-
moval (§ 280.64), investigation of soil
and ground-water cleanup (§ 280.65),
and corrective action plan (§ 280.66);
and
(4) A notification before permanent
closure or change-in-service (§ 280.71).
(b) Recordkeeping. Owners and oper-
ators must maintain the following in-
formation:
(1) A corrosion expert's analysis of
site corrosion potential if corrosion
protection equipment is not used
(§ 280.20(a)(4); § 280.20(b)(3)).
(2) Documentation of operation of
corrosion protection equipment
(§ 280.31);
(3) Documentation of UST system
repairs (§ 280.33(f));
(4) Recent compliance with release
detection requirements (§ 280.45); and
(5) Results of the site investigation
conducted at permanent closure
(§ 280.74).
(c) Availability and Maintenance of
Records. Owners and operators must
keep the records required either:
(1) At the UST site and immediately
available for inspection by the imple-
menting agency; or
(2) At a readily available alternative
site and be provided for inspection to
the implementing agency upon re-
quest.
(3) In the case of permanent closure
records required under § 280.74,
owners and operators are also provid-
-------
§ 280.40
40 CFR Ch. I (7-1-92 Edition,
ed with the additional alternative of
mailing closure records to the imple-
menting agency if they cannot be kept
at the site or an alternative site as in-
dicated above.
Note The recordkeeping and reporting re-
quirements in this section have been ap-
proved by the Office of Management and
Budget and have been assigned OMB Con-
trol No. 2050-0068.
Subpart D—Release Detection
§ 280.40 General requirements for all UST
systems.
(a) Owners and operators of new and
existing UST systems must provide a
method, or combination of methods,
of release detection that:
(1) Can detect a release from any
portion of the tank and the connected
underground piping that routinely
contains product;
(2) Is installed, calibrated, operated,
and maintained in accordance with the
manufacturer's instructions, including
routine maintenance and service
checks for operability or running con-
dition; and
(3) Meets the performance require-
ments in § 280.43 or 280.44, with any
performance claims and their manner
of determination described in writing
by the equipment manufacturer or in-
staller. In addition, methods used
after the date shown in the following
table corresponding with the specified
method except for methods perma-
nently installed prior to that date,
must be capable of detecting the leak
rate or quantity specified for that
method in the corresponding section
of the rule (also shown in the table)
with a probability of detection (Pd) of
0.95 and a probability of false alarm
(Pfa) of 0.05.
Method
Section
Date after which Pd/Pfa
must be demonstrated
Manual Tank
280.43(b)
December 22, 1990.
Gauging.

Tank Tightness
280.43(c)
December 22, 1990.
Testing.

Automatic Tank
280.43(d)
December 22, 1990.
Gauging.

Automatic Line
280.44(a)
September 22, 1991.
Leak

Detectors.

Method
Section
Date after which Pd/Pfa
must be demonstrated
Line Tightness
Testing.
280.44(b)
December 22, 1990.
(b) When a release detection method
operated in accordance with the per-
formance standards in § 280.43 and
§ 280.44 indicates a release may have
occurred, owners and operators must
notify the implementing agency in ac-
cordance with subpart E.
(c) Owners and operators of all UST
systems must comply with the release
detection requirements of this subpart
by December 22 of the year listed in
the following table:
Schedule for Phase-in of Release
Detection
Year system
was
Vear when release detection is required (by
December 22 o< the year indicated)
installed
1989
1990
1991
1992
1993
Before 1965
or date
unknown.
1965-69
1970-74
1975-79
1980-88
RD
P
P/RD
P
P
P
RD
RD
RD
New tanks (after December 22) immediately upon
installation.
P = Must begin release detection tor all pressurized piping
as defined in 9 280.41(b)(1).
RO-Must begin release detection for tanks and suction
piping in accordance with 5 280.41(a), $ 280.41(b)(2), and
$ 280.42.
(d) Any existing UST system that
cannot apply a method of release de-
tection that complies with the require-
ments of this subpart must complete
the closure procedures in subpart G by
the date on which release detection is
required for that UST system under
paragraph (c) of this section.
[53 PR 37194, Sept. 23, 1988, as amended at
55 FR 17753, Apr. 27, 1990; 55 FR 23738,
June 12, 1990; 56 FR 26, Jan. 2, 1991]
§280.41 Requirements for petroleum UST
systems.
Owners and operators of petroleum
UST systems must provide release de-
tection for tanks and piping as follows:
(a) Tanks. Tanks must be monitored
at least every 30 days for releases
1 A AO
Environmental Protection Agency
§ 280.42
using one of the methods listed in
§ 280.43 (d) through (h) except that:
(1) UST systems that meet the per-
formance standards in § 280.20 or
§ 280.21, and the monthly inventory
control requirements in § 280.43 (a) or
(b), may use tank tightness testing
(conducted in accordance with
§ 280.43(c)) at least every 5 years until
December 22, 1998, or until 10 years
after the tank is installed or upgraded
under $ 280.21(b), whichever is later;
(2) UST systems that do not meet
the performance standards in § 280.20
or § 280.21 may use monthly inventory
controls (conducted in accordance
with 1 280.43(a) or (b.)) and annual
tank tightness testing (conducted in
accordance with § 280.43(c)) until De-
cember 22, 1998 when the tank must
be upgraded under § 280.21 or perma-
nently closed under § 280.71; and
(3) Tanks with capacity of 550 gal-
lons or less may use weekly tank gaug-
ing (conducted in accordance with
§ 280.43(b)).
(b) Piping. Underground piping that
routinely contains regulated sub-
stances must be monitored for releases
in a manner that meets one of the fol-
lowing requirements:
(1) Pressurized piping. Underground
piping that conveys regulated sub-
stances under pressure must:
(1) Be equipped with an automatic
line leak detector conducted in accord-
ance with § 280.44(a); and
(ii) Have an annual line tightness
test conducted in accordance with
§ 280.44(b) or have monthly monitor-
ing conducted in accordance with
§ 280.44(c).
(2) Suction piping. Underground
piping that conveys regulated sub-
stances under suction must either
have a line tightness test conducted at
least every 3 years and in accordance
with § 280.44(b), or use a monthly
monitoring method conduct in accord-
ance with § 280.44(c). No release detec-
tion is required for suction piping that
is designed and constructed to meet
the following standards:
(i) The below-grade piping operates
at less than atmospheric pressure;
(il) The below-grade piping is sloped
so that the contents of the pipe will
drain back into the storage tank if the
suction is released;
(iii) Only one check valve is included
in each suction line;
(iv) The check valve is located direct-
ly below and as close as practical to
the suction pump; and
(v) A method is provided that allows
compliance with paragraphs (b)(2) (ii)-
(iv) of this section to be readily deter-
mined.
§ 280.42 Requirements for hazardous sub-
stance UST systems.
Owners and operators of hazardous
substance UST systems must provide
release detection that meets the fol-
lowing requirements:
(a) Release detection at existing
UST systems must meet the require-
ments for petroleum UST systems in
§ 280.41. By December 22. 1998, all ex-
isting hazardous substance UST sys-
tems must meet the release detection
requirements for new systems in para-
graph (b) of this section.
(b) Release detection at new hazard-
ous substance UST systems must meet
the following requirements:
(1) Secondary containment systems
must be designed, constructed and in-
stalled to:
(1) Contain regulated substances re-
leased from the tank system until they
are detected and removed;
(ii) Prevent the release of regulated
substances to the environment at any
time during the operational life of the
UST system; and
(iii) Be checked for evidence of a re-
lease at least every 30 days.
Note.—The provisions of 40 CFR 265.193,
Containment and Detection of Releases,
may be used to comply with these require-
ments.
(2) Double-walled tanks must be de-
signed. constructed, and installed to:
(i) Contain a release from any por-
tion of the inner tank within the outer
wall; and
(ii) Detect the failure of the inner
wall.
(3) External liners (including vaults)
must be designed, constructed, and in-
stalled to:
(i) Contain 100 percent of the capac-
ity of the largest tank within its
boundary;
(ii) Prevent the interference of pre-
cipitation or ground-water intrusion
-------
§ 280.43
40 CFR Ch. I (7-U92 Edition)
with the ability to contain or detect a
release of regulated substances; and
(ill) Surround the tank completely
(i.e., it Is capable of preventing lateral
as well as vertical migration of regulat-
ed substances).
(4) Underground piping must be
equipped with secondary containment
that satisfies the requirements of
paragraph (b)(1) of this section (e.g..
trench liners, jacketing of double-
walled pipe). In addition, underground
piping that conveys regulated sub-
stances under pressure must be
equipped with an automatic line leak
detector in accordance with
5 280.44(a).
(5) Other methods of release detec-
tion may be used if owners and opera-
tors:
(i) Demonstrate to the implementing
agency that tin alternate method can
detect a release of the stored sub-
stance as effectively as any of the
methods allowed in §§ 280.43(b)
through (h) can detect a release of pe-
troleum;
(Ji) Provide iniormation to the im-
plementing agency on effective correc-
tive action technologies, health risks,
and chemical and physical properties
of the stored substance, and the char-
acteristics of the UST site; and,
(lii) Obtain approval from the imple-
menting agency to use the alternate
release detection method before the
installation and operation of the new
UST system.
8 280.43 Methods of release detection for
tanks.
Each method of release detection for
tanks used to meet the requirements
of § 280.41 must be conducted in ac-
cordance with the following;
(a) Inventory control Product inven-
tory control (or another test of equiva-
lent performance) must be conducted
monthly to detect a release of at least
1.0 percent of flow-through plus 130
gallons on a monthly basis in the fol-
lowing manner:
(1) Inventory volume measurements
for regulated substance Inputs, with-
drawals, and the amount still remain-
ing In the tank are recorded each oper-
ating day;
(2) The equipment used is capable of
measuring the level of product over
the full range of the tank's height to
the nearest one-eighth of an inch;
(3) The regulated substance inputs
are reconciled with delivery receipts
by measurement of the tank inventory
volume before and after delivery;
(4) Deliveries are made through a
drop tube that extends to within one
foot of the tank bottom;
(5) Product dispensing is metered
and recorded within the local stand-
ards for meter calibration or an accu-
racy of 6 cubic inches for every 5 gal-
lons of product withdrawn; and
(6) The measurement of any water
level in the bottom of the tank is made
to the nearest one-eighth of an inch at
least once a month.
Note: Practices described in the American
Petroleum Institute Publication 1821, "Rec-
ommended Practice for Bulk Liquid Stock
Control at Retail Outlets." may be used,
where applicable, as guidance In meeting
the requirements of this paragraph.
(b) Manual tank gauging. Manual
tank gauging must meet the following
requirements:
(1) Tank liquid level measurements
are taken at the beginning and ending
of a period of at least 36 hours during
which no liquid Is added to or removed
from the tank;
(2) Level measurements are based on
an average of two consecutive stick
readings at both the beginning and
ending of the period;
(3) The equipment used is capable of
measuring the level of product over
the full range of the tank's height to
the nearest one-eighth of an inch;
(4) A leak is suspected and subject to
the requirements of subpart E if the
variation between beginning and
ending measurements exceeds the
weekly or monthly standards in the
following table:
Nominal
lank
capacity
Weekly standard (one
test)
Monthly standard
(average of (our
tests)
550 gallons
10 gallons
5 gallons.
or less.

551-1,000
13 gallons
7 gallons.
gallons.

1,001-2.000
26 gallons
13 gallons.
gallons.

¦
Environmental Protection Agency
(5) Only tanks of 550 gallons or less
nominal capacity may use this as the
sole method of release detection.
Tanks of 551 to 2,000 gallons may use
the method in place of manual inven-
tory control in § 280.43(a). Tanks of
greater than 2,000 gallons nominal ca-
pacity may not use this method to
meet the requirements of this subpart.
(c) Tank tightness testing. Tank
tightness testing (or another test of
equivalent performance) must be capa-
ble of detecting a 0.1 gallon per hour
leak rate from any portion of the tank
that routinely contains product while
accounting for the effects of thermal
expansion or contraction of the prod-
uct, vapor pockets, tank deformation,
evaporation or condensation, and the
location of the water table.
(d) Automatic tank gauging. Equip-
ment for automatic tank gauging that
tests for the loss of product and con-
ducts inventory control must meet the
following requirements:
(1) The automatic product level
monitor test can detect a 0.2 gallon
per hour leak rate from any portion of
the tank that routinely contains prod-
uct; and
(2) Inventory control (or another
test of equivalent performance) is con-
ducted in accordance with the require-
ments of § 280.43(a).
(e) Vapor monitoring. Testing or
monitoring for vapors within the soil
gas of the excavation zone must meet
the following requirements:
(1) The materials used as backfill are
sufficiently porous (e.g., gravel, sand,
crushed rock) to readily allow diffu-
sion of vapors from releases into the
excavation area;
(2) The stored regulated substance,
or a tracer compound placed in the
tank system, is sufficiently volatile
(e.g., gasoline) to result in a vapor
level that is detectable by the monitor-
ing devices located in the excavation
zone in the event of a release from the
tank;
(3) The measurement of vapors by
the monitoring device is not rendered
inoperative by the ground water, rain-
fall, or soil moisture or other known
Interferences so that a release could
go undetected for more than 30 days;
(4) The level of background contami-
nation in the excavation zone will not
§ 280.43
interfere with the method used to
detect releases from the tank;
(5) The vapor monitors are designed
and operated to detect any significant
increase in concentration above back-
ground of the regulated substance
stored in the tank system, a compo-
nent or components of that substance,
or a tracer compound placed. in the
tank system;
(6) In the UST excavation zone, the
site is assessed to ensure compliance
with the requirements in paragraphs
(e) (1) through (4) of this section and
to establish the number and position-
ing of monitoring wells that will detect
releases within the excavation zone
from any portion of the tank that rou-
tinely contains product; and
(7) Monitoring wells are clearly
marked and secured to avoid unau-
thorized access and tampering.
(f) Ground-water monitoring. Test-
ing or monitoring for liquids on the
ground water must meet the following
requirements:
(1) The regulated substance stored is
Immiscible in water and has a specific
gravity of less than one;
(2) Ground water is never more than
20 feet from the ground surface and
the hydraulic cpnductivity of the
soll(s) between the UST.system and
the monitoring wells or devices is not
less than 0.01 cm/sec (e.g., the soil
should consist of. gravels, coarse to
medium sands, coarse silts or other
permeable materials);
(3) The slotted portion of the moni-
toring well casing must be designed to
prevent migration of natural soils or
filter pack into the well and to allow
entry of regulated substance on the.
water table into the well under both
high and low ground-water conditions;
(4) Monitoring wells shall be sealed
from the ground surface to the top of
the filter pack;
(5) Monitoring wells or devices inter-
cept the excavation zone or are as
close to it as is technically feasible;
(6) The continuous monitoring de-
vices or manual methods used can
detect the presence of at least one-
eighth of an inch of free product on
top of the ground water in the moni-
toring wells;
(7) Within and immediately beiow
the UST system excavation zone, the
-------
§ 280.44
40 CFR Ch. I (7.1-92 Edition)
site is assessed to ensure compliance
with the requirements in paragraphs
(f) (1) through (5) of this section and
to establish the number and position-
ing of monitoring wells or devices that
will detect releases from any portion
of the tank that routinely contains
product; and
(8) Monitoring wells are clearly
marked and secured to avoid unau-
thorized access and tampering.
(g) Interstitial monitoring. Intersti-
tial monitoring between the UST
system and a secondary barrier imme-
diately around or beneath it may be
used, but only if the system is de-
signed, constructed and installed to
detect a leak from any portion of the
tank that routinely contains product
and also meets one of the following re-
quirements:
(1) For double-walled UST systems,
the sampling or testing method can
detect a release through the inner wall
in any portion of the tank that rou-
tinely contains product;
Note: The provisions outlined in the Steel
Tank Institute's "Standard for Dual Wall
Underground Storage Tanks" may be used
as guidance for aspects of the design and
construction of underground steel double-
walled tanks.
(2) For UST systems with a second-
ary barrier within the excavation
zone, the sampling or testing method
used can detect a release between the
UST system and the secondary bar-
rier;
(i) The secondary barrier around or
beneath the UST system consists of
artificially constructed material that is
sufficiently thick and impermeable (at
least 10'6 cm/sec for the regulated
substance stored) to direct a release to
the monitoring point and permit its
detection;
(li) The barrier is compatible with
the regulated substance stored so that
a release from the UST system will
not cause a deterioration of the bar-
rier allowing a release to pass through
undetected;
(ill) For cathodically protected
tanks, the secondary barrier must be
installed so that it does not interfere
with the proper operation of the ca-
thodic protection system;
(iv) The ground water, soil moisture,
or rainfall will not render the testing
or sampling method used inoperative
so that a release could go undetected
for more than 30 days;
Cv) The site is assessed to ensure
that the secondary barrier is always
above the ground water and not in a
25-year flood plain, unless the barrier
and monitoring designs are for use
under such conditions; and,
(vi) Monitoring wells are clearly
marked and secured to avoid unau-
thorized access and tampering.
(3) For tanks with an internally
fitted liner, an automated device can
detect a release between the inner wall
of the tank and the liner, and the liner
is compatible with the substance
stored.
(h) Other methods. Any other type
of release detection method, or combi-
nation of methods, can be used if:
(1) It can detect a 0.2 gallon per
hour leak rate or a release of 150 gal-
lons within a month with a probability
of detection of 0.95 and a probability
of false alarm of 0.05; or
(2) The implementing agency may
approve another method if the owner
and operator can demonstrate that
the method can detect a release as ef-
fectively as any of the methods al-
lowed in paragraphs (c) through (h) of
this section. In comparing methods,
the implementing agency shall consid-
er the size of release that the method
can detect and the frequency and reli-
ability with which it can be detected.
If the method is approved, the owner
and operator must comply with any
conditions imposed by the implement-
ing agency on its use to ensure the
protection of human health and the
environment.
§ 280.44 Methods of release detection for
piping.
Each method of release detection for
piping used to meet the requirements
of 1280.41 must be conducted in ac-
cordance with the following:
(a) Automatic line leak detectors.
Methods which alert the operator to
the presence of a leak by restricting or
shutting off the flow of regulated sub-
stances through piping or triggering
an audible or visual alarm may be used
only if they detect leaks of 3 gallons
per hour at 10 pounds per square inch
Environmental Protection Agency
line pressure within I hour. An annual
test of the operation of the leak detec-
tor must be conducted in accordance
with the manufacturer's requirements.
(b) Line tightness testing. A periodic
test of piping may be conducted only
if it can detect a 0.1 gallon per hour
leak rate at one and one-half times the
operating pressure.
(c) Applicable tank methods. Any of
the methods in § 280.43 (e) through
(h) may be used if they are designed
to detect a release from any portion of
the underground piping that routinely
contains regulated substances.
§ 280.45 Release detection recordkeeping.
All UST system owners and opera-
tors must maintain records in accord-
ance with § 280.34 demonstrating com-
pliance with all applicable require-
ments of this subpart. These records
must include the following:
(a) All written performance claims
pertaining to any release detection
system used, and the manner in which
these claims have been justified or
tested by the equipment manufacturer
or installer, must be maintained for 5
years, or for another reasonable
period of time determined by the im-
plementing agency, from the date of
installation;
(b) The results of any sampling, test-
ing, or monitoring must be maintained
for at least 1 year, or for another rea-
sonable period of time determined by
the implementing agency, except that
the results of tank tightness testing
conducted in accordance with
§ 280.43(c) must be retained until the
next test is conducted; and
(c) Written documentation of all
calibration, maintenance, and repair
of release detection equipment perma-
nently located on-site must be main-
tained for at least one year after the
servicing work is completed, or for an-
other reasonable time period deter-
mined by the implementing agency.
Any schedules of required calibration
and maintenance provided by the re-
lease detection equipment manufac-
turer must be retained for 5 years
from the date of installation.
§ 280.51
Subpart E—Release Reporting,
Investigation, and Confirmation
§ 280.50 Reporting of suspected releases.
Owners and operators of UST sys-
tems must report to the implementing
agency within 24 hours, or another
reasonable time period specified by
the implementing agency, and follow
the procedures in § 280.52 for any of
the following conditions:
(a) The discovery by owners and op-
erators or others of released regulated
substances at the UST site or in the
surrounding area (such as the pres-
ence of free product or vapors in soils,
basements, sewer and utility lines, and
nearby surface water).
(b) Unusual operating conditions ob-
served by owners and operators (such
as the erratic behavior of product dis-
pensing equipment, the sudden loss of
product from the UST system, or an
unexplained presence of water in the
tank), unless system equipment is
found to be defective but not leaking,
and is immediately repaired or re-
placed; and,
(c) Monitoring results from a release
detection method required under
§ 280.41 and § 280.42 that indicate a re-
lease may have occurred unless:
(1) The monitoring device is found
to be defective, and is immediately re-
paired, recalibrated or replaced, and
additional monitoring does not con-
firm the initial result; or
(2) In the case of inventory control,
a second month of data does not con-
firm the initial result.
§ 280.51 Investigation due to off-site im-
pacts.
When required by the implementing
agency, owners and operators of UST
systems must follow the procedures in
1 280.52 to determine if the UST
system is the source of off-site im-
pacts. These Impacts include the dis-
covery of regulated substances (such
as the presence of free product or
vapors in soils, basements, sewer and
utility lines, and nearby surface and
drinking waters) that has been ob-
served by the implementing agency or
brought to its attention by another
party.
-------
§ 280.52
40 CFR Ch. I (7-1-92 Edition)
§ 280.52 Release investigation and confir-
mation steps.
Unless corrective action is Initiated
in accordance with subpart F, owners
and operators must Immediately inves-
tigate and confirm all suspected re-
leases of regulated substances requir-
ing reporting under § 280.50 within 7
days, or another reasonable time
period specified by the implementing
agency, using either the following
steps or another procedure approved
by the implementing agency:
(a) System test Owners and opera-
tors must conduct tests (according to
the requirements for tightness testing
in § 280.43(c) and § 280.44(b)) that de-
termine whether a leak exists in that
portion of the tank that routinely con-
tains product, or the attached delivery
piping, or both.
(1) Owners and operators must
repair, replace or upgrade the UST
system, and begin corrective action in
accordance with subpart F if the test
results for the system, tank, or deliv-
ery piping indicate that a leak exists.
(2) Further investigation is not re-
quired if the test results for the
system, tank, and delivery piping do
not indicate that a leak exists and if
environmental contamination is not
the basis for suspecting a release.
(3) Owners and operators must con-
duct a site check as described in para-
graph (b) of this section if the test re-
sults for the system, tank, and delivery
piping do not indicate that a leak
exists but environmental contamina-
tion is the basis for suspecting a re-
lease.
(b) Site check. Owners and operators
must measure for the presence of a re-
lease where contamination is most
likely to be present at the UST site. In
selecting sample types, sample loca-
tions, and measurement methods,
owners and operators must consider
the nature of the stored substance,
the type of initial alarm or cause for
suspicion, the type of backfill, the
depth of ground water, and other fac-
tors appropriate for identifying the
presence and source of the release.
(1) If the test results for the excava-
tion zone or the UST site indicate that
a release has occurred, owners and op-
erators must begin corrective action in
accordance with subpart F;
._) If the test results for the excava-
tion zone or the UST site do not indi-
cate that a release has occurred, fur-
ther investigation is not required.
§ 280.53 Reporting and cleanup of spills
and overfills.
(a) Owners and operators of UST
systems must contain and immediately
clean up a spill or overfill and report
to the implementing agency within 24
hours, or another reasonable -time
period specified by the implementing
agency, and begin corrective action in
accordance with subpart F in the fol-
lowing cases:
(1) Spill or overfill of petroleum that
results in a release to the environment
that exceeds 25 gallons or another rea-
sonable amount specified by the im-
plementing agency, or that causes a
sheen on nearby surface water; and
(2) Spill or overfill of a hazardous
substance that results in a release to
the environment that equals or ex-
ceeds its reportable quantity under
CERCLA (40 CFR part 302).
(b) Owners and operators of UST
systems must contain and immediately
clean up a spill or overfill of petrole-
um that is less than 25 gallons or. an-
other reasonable amount specified by
the implementing agency, and a spill
or overfill of a hazardous substance
that is less than the reportable quanti-
ty. If cleanup cannot be accomplished
within 24 hours, or another reasonable
time period established by the imple-
menting agency, owners and operators
must immediately notify the imple-
menting agency.
Note: Pursuant to 5 5 302.6 and 355.40, a
release of a hazardous substance equal to or
in excess of its reportable quantity must
also be reported immediately (rather than
within 24 hours) to the National Response
Center under sections 102 and 103 of the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1080 and
to appropriate state and local authorities
under Title III of the Superfund Amend-
ments and Reauthorization Act of 1986.
Environmental Protection Agency
Subpart F—Release Response and
Corrective Action for UST Sys-
tems Containing Petroleum or
Hazardous Substances.
§ 280.60 General.
Owners and operators of petroleum
or hazardous substance UST systems
must, in response to a confirmed re-
lease from the UST system, comply
with the requirements of this subpart
except for USTs excluded under
§ 280.10(b) and UST systems subject to
RCRA Subtitle C corrective action re-
quirements under section 3004(u) of
the Resource Conservation and Recov-
ery Act, as amended.
§ 280.61 Initial response.
Upon confirmation of a release in ac-
cordance with § 280.52 or after a re-
lease from the UST system is identi-
fied in any other manner, owners and
operators must perform the following
initial response actions within 24
hours of a release or within another
reasonable period of time determined
by the implementing agency:
(a) Report the release to the imple-
menting agency (e.g.. by telephone or
electronic mail);
(b) Take immediate action to pre-
vent any further release of the regu-
lated substance into the environment;
and
(c) Identify and mitigate fire, explo-
sion, and vapor hazards.
§ 280.62 Initial abatement measures and
site check.
(a) Unless directed to ao otherwise
by the implementing agency, owners
and operators must perform the fol-
lowing abatement measures:
(1) Remove as much of the regulated
substance from the UST system as is
necessary to prevent further release to
the environment;
(2) Visually inspect any aboveground
releases or exposed belowground re-
leases and prevent further migration
of the released substance into sur-
rounding soils and ground water;
(3) Continue to monitor and miti-
gate any additional fire and safety
hazards posed by vapors or free prod-
uct that have migrated from the UST
excavation zone and entered into sub-
§ 280.63
surface structures (such as sewers or
basements):
(4) Remedy hazards posed by con-
taminated soils that are excavated or
exposed as a result of release confir-
mation. site investigation, abatement,
or corrective action activities. If these
remedies include treatment or disposal
of soils, the owner and operator must
comply with applicable State and local
requirements;
(5) Measure for the presence of a re-
lease where contamination is most
likely to be present at the UST site,
unless the presence and source of the
release have been confirmed in accord-
ance with the site check required by
§ 280.52(b) or the closure site assess-
ment of § 280.72(a). In selecting
sample types, sample locations, and
measurement methods, the owner and
operator must consider the nature of
the stored substance, the type of back-
fill, depth to ground water and other
factors as appropriate for identifying
the presence and source of the release:
and
(6) Investigate to determine the pos-
sible presence of free product, and
begin free product removal as soon as
practicable and in accordance with
§ 280.64.
(b) Within 20 days after release con-
firmation, or within another reasona-
ble period of time determined by the
implementing agency, owners and op-
erators must submit a report to the
implementing agency summarizing the
initial abatement steps taken under
paragraph (a) of this section and any
resulting information or data.
§ 280.63 Initial site characterization.
(a) Unless directed to do otherwise
by the implementing agency, owners
and operators must assemble informa-
tion about the site and the nature of
the release, including information
gained while confirming the release or
completing the initial abatement
measures in §§ 280.60 and 280.61. This
information must include, but is not
necessarily limited to the following:
(1) Data on the nature and estimat-
ed quantity of release;
(2) Data from available sources
and/or site investigations concerning
the following factors: surrounding
-------
§ 280.64
40 CFR Ch. I (7-1-92 Edition)
populations, water quality, use and ap-
proximate locations of wells potential-
ly affected by the release, subsurface
soil conditions, locations of subsurface
sewers, climatological conditions, and
land use;
(3) Results of the site check required
under § 280.62(a)(5); and
(4) Results of the free product inves-
tigations required under § 280.62(a)(6),
to be used by owners and operators to
determine whether free product must
be recovered under § 280.64.
(b) Within 45 days of release confir-
mation or another reasonable period
of time determined by the implement-
ing agency, owners and operators must
submit the information collected in
compliance with paragraph (a) of this
section to the implementing agency in
a manner that demonstrates its appli-
cability and technical adequacy, or in
a format and according to the sched-
ule required by the implementing
agency.
§ 280.64 Free product removal.
At sites where investigations under
§ 280.62(a)(6) indicate the presence of
free product, owners and operators
must remove free product to the maxi-
mum extent practicable as determined
by the implementing agency while
continuing, as necessary, any actions
initiated under §§ 280.61 through
280.63, or preparing for actions re-
quired under §§ 280.65 through 280.66.
In meeting the requirements of this
section, owners and operators must:
(a) Conduct free product removal in
a manner that minimizes the spread of
contamination into previously uncon-
taminated zones by using recovery and
disposal techniques appropriate to the
hydrogeologic conditions at the site,
and that properly treats, discharges or
disposes of recovery byproducts in
compliance with applicable local, State
and Federal regulations;
(b) Use abatement of free product
migration as a minimum objective for
the design of the free product removal
system;
(c) Handle any flammable products
in a safe and competent manner to
prevent fires or explosions; and
(d) Unless directed to do otherwise
by the implementing agency, prepare
and submit to the implementing
agency, within 45 days after confirm-
ing a release, a free product removal
report that provides at least the fol-
lowing information;
(1) The name of the person(s) re-
sponsible for implementing the free
product removal measures;
(2) The estimated quantity, type,
and thickness of free product observed
or measured in wells, boreholes, and
excavations;
(3) The type of free product recov-
ery system used;
(4) Whether any discharge will take
place on-site or off-site during the re-
covery operation and where this dis-
charge will be located;
(5) The type of treatment applied to,
and the effluent quality expected
from, any discharge;
(6) The steps that have been or are
being taken to obtain necessary per-
mits for any discharge; and
(7) The disposition of the recovered
free product.
§ 280.65 Investigations for soil and
ground-water cleanup.
(a) In order to determine the full
extent and location of soils contami-
nated by the release and the presence
and concentrations of dissolved prod-
uct contamination in the ground
water, owners and operators must con-
duct investigations of the release, the
release site, and the surrounding area
possibly affected by the release if any
of the following conditions exist;
(1) There is evidence that ground-
water wells have been affected by the
release (e.g., as found during release
confirmation or previous corrective
action measures);
(2) Free product is found to need re-
covery in compliance with § 280.64;
(3) There is evidence that contami-
nated soils may be in contact with
ground water (e.g., as found during
conduct of the initial response meas-
ures or investigations required under
§§ 280.60 through 280.64); and
(4) The implementing agency re-
quests an investigation, based on the
potential effects of contaminated soil
or ground water on nearby surface
water and gr< ind-water resources.
(b) Owne. ; and operators must
submit the information collected
Environmental Protection Agency
under paragraph (a) of this section as
soon as practicable or in accordance
with a schedule established by the im-
plementing agency.
8 280.66 Corrective action plan.
(a) At any point after reviewing the
information submitted in compliance
with §§ 280.61 through 280.63, the im-
plementing agency may require
owners and operators to submit addi-
tional information or to develop and
submit a corrective action plan for re-
sponding to contaminated soils and
ground water. If a plan is required,
owners and operators must submit the
plan according to a schedule and
format established by the implement-
ing agency. Alternatively, owners and
operators may, after fulfilling the re-
quirements of §§ 280.61 through
280.63, choose to submit a corrective
action plan for responding to contami-
nated soil and ground water. In either
case, owners and operators are respon-
sible for submitting a plan that pro-
vides for adequate protection of
human health and the environment as
determined by the implementing
agency, and must modify their plan as
necessary to meet this standard.
(b) The implementing agency will
approve the corrective action plan
only after ensuring that implementa-
tion of the plan will adequately pro-
tect human health, safety, and the en-
vironment. In making this determina-
tion, the implementing agency should
consider the following factors as ap-
propriate:
(1) The physical and chemical char-
acteristics of the regulated substance,
including its toxicity, persistence, and
potential for migration;
(2) The hydrogeologic characteris-
tics of the facility and the surrounding
area;
(3) The proximity, quality, and cur-
rent and future uses of nearby surface
water and ground water;
(4) The potential effects of residual
contamination on nearby surface
water and ground water;
(5) An exposure assessment; and
(6) Any information assembled in
compliance with this subpart.
(c) Upon approval of the corrective
action plan or as directed by the im-
plementing agency, owners and opera-
§ 280.67
tors must implement the plan, includ-
ing modifications to the plan made by
the implementing agency. They must
monitor, evaluate, and report the re-
sults of implementing the plan in ac-
cordance with a schedule and in a
format established by the implement-
ing agency.
(d) Owners and operators may, in
the interest of minimizing environ-
mental contamination and promoting
more effective cleanup, begin cleanup
of soil and ground water before the
corrective action plan is approved pro-
vided that they:
(1) Notify the implementing agency
of their intention to begin cleanup;
(2) Comply with any conditions im-
posed by the implementing agency, in-
cluding halting cleanup or mitigating
adverse consequences from cleanup ac-
tivities; and
(3) Incorporate these self-initiated
cleanup measures in the corrective
action plan that is submitted to the
implementing agency for approval.
§ 280.67 Public participation.
(a) For each confirmed release that
requires a corrective action plan, the
implementing agency must provide
notice to the public by means designed
to reach those members of the public
directly affected by the release and
the planned corrective action. This
notice may include, but is not limited
to, public notice in local newspapers,
block advertisements, public service
announcements, publication in a state
register, letters to individual house-
holds, or personal contacts by field
staff.
(b) The implementing agency must
ensure that site release information
and decisions concerning the correc-
tive action plan are made available to
the public for inspection upon request.
(c) Before approving a corrective
action plan, the implementing agency
may hold a public meeting to consider
comments on the proposed corrective
action plan if there is sufficient public
interest, or for any other reason.
(d) The implementing agency must
give public notice that complies with
paragraph (a) of this section if imple-
mentation of an approved corrective
action plan does not achieve the estab-
-------
§ 280.70
40 CFR Ch. I (7-1-92 Edition)
lished cleanup levels in the plan and
termination of that plan Is under con-
sideration by the implementing
agency.
Subpart G—Out-of-Service UST
Systems and Cloture
§ 280.70 Temporary closure.
(a) When an UST system is tempo-
rarily closed, owners and operators
must continue operation and mainte-
nance of corrosion protection in ac-
cordance with § 280.31, and any re-
lease detection in accordance with sub-
part D. Subparts E and F must be
complied with if a release is suspected
or confirmed. However, release detec-
tion is not required as long as the UST
system is empty. The UST system is
empty when all materials have been
removed using commonly employed
practices so that no more than 2.5 cen-
timeters (one inch) of residue, or 0.3
percent by weight of the total capacity
of the UST system, remain in the
system.
(b) When an UST system is tempo-
rarily closed for 3 months or more,
owners and operators must also
comply with the following require-
ments:
(1) Leave vent lines open and func-
tioning; and
(2) Cap and secure all other lines,
pumps, manways, and ancillary equip-
ment.
(c) When an UST system is tempo-
rarily closed for more than 12 months,
owners and operators must perma-
nently close the UST system if it does
not meet either performance stand-
ards in § 280.20 for new UST systems
or the upgrading requirements in
$ 280.21, except that the spill and over-
fill equipment requirements do not
have to be met. Owners and operators
must permanently close the substand-
ard UST systems at the end of this 12-
month period in accordance with
S§ 280.71-280.74, unless the imple-
menting agency provides an extension
of the 12-month temporary closure
period. Owners and operators must
complete a site assessment in accord-
ance with { 280.72 before such an ex-
tension can be applied for.
§ 280.71 Permanent closure and changes-
in-service.
(a) At least 30 days before beginning
either permanent closure or a change-
in-service under paragraphs (b) and (c)
of this section, or within another rea-
sonable time period determined by the
implementing agency, owners and op-
erators must notify the implementing
agency of their intent to permanently
close or make the change-in-service,
unless such action is in response to
corrective action. The required assess-
ment of the excavation zone under
§ 280.72 must be performed sifter noti-
fying the implementing agency but
before completion of the permanent
closure or a change-in-service.
-------
§ 280.92
40 CFR Ch. I (7-1-92 Edition)
(c) All petroleum marketing firms
owning 13-99 USTs at more than one
faculty; April 26, 1991.
(d) All petroleum UST owners not
described in paragraphs (a), (b), or (c)
of this section, excluding local govern-
ment entities; December 31, 1993.
(e) All local government entities; one
year from the date of promulgation of
additional mechanisms for use by local
government entities to comply with fi-
nancial responsibility requirements for
underground storage tanks containing
petroleum.
[S3 FR 43370, Oct. 26, 1988, as amended at
54 FR 5452, Feb. 3, 1989; 55 FR 18567, May
2, 1990; 55 FR 46025, Oct. 31. 1990; 56 FR
66373, Dec. 23. 1991]
§ 280.92 Definition of terms.
When used in this subpart, the fol-
lowing terms shall have the meanings
given below:
(a) Accidental release means any
sudden or nonsudden release of petro-
leum from an underground storage
tank that results in a need for correc-
tive action and/or compensation for
bodily injury or property damage nei-
ther expected nor intended by the
tank owner or operator.
(b) Bodily injury shall have the
meaning given to this term by applica-
ble state law; however, this term shall
not include those liabilities which,
consistent with standard insurance in-
dustry practices, are excluded from
coverage in liability insurance policies
for bodily injury.
(c) Controlling interest means direct
ownership of at least 50 percent of the
voting stock of another entity.
(d) Director of the Implementing
Agency means the EPA Regional Ad-
ministrator, or, in the case of a state
with a program approved under sec-
tion 9004, the Director of the designat-
ed state or local agency responsible for
carrying out an approved UST pro-
gram.
(e) Financial reporting year means
the latest consecutive twelve-month
period for which any of the following
reports used to support a financial test
Is prepared:
(1) a 10-K report submitted to the
SEC;
(2) an annual report of tangible net
worth submitted to Dun and Brad-
street; or
(3) annual reports submitted to the
Energy Information Administration or
the Rural Electrification Administra-
tion.
"Financial reporting year" may thus
comprise a fiscal or a calendar year
period.
(f) Legal defense cost is any expense
that an owner or operator or provider,
of financial assurance incurs in de-
fending against claims or actions
brought,
(1) By EPA or a state to require cor-
rective action or to recover the costs of
corrective action;
(2) By or on behalf ol a third party
for bodily injury or property damage
caused by an accidental release; or
(3) By any person to enforce the
terms of a financial assurance mecha-
nism.
(g) Occurrence means an accident,
including continuous or repeated ex-
posure to conditions, which results in
a release from an underground storage
tank.
Note: This definition Is Intended to assist
In the understanding of these regulations
and Is not Intended either to limit the
meaning of "occurrence" In a way that con-
flicts with standard insurance usage or to
prevent the use of other standard Insurance
terms In place of "occurrence."
(h) Owner or operator, when the
owner or operator are separate parties,
refers to the party that is obtaining or
has obtained financial assurances.
(i) Petroleum marketing facilities in-
clude all facilities at which petroleum
is produced or refined and all facilities
from which petroleum is sold or trans-
ferred to other petroleum marketers
or to the public.
(J) Petroleum marketing firms are all
firms owning petroleum marketing fa-
cilities. Firms owning other types of
facilities with USTs as well as petrole-
um marketing facilities are considered
to be petroleum marketing firms.
(k) Property damage shall have the
meaning given this term by applicable
state law. This term shall not Include
those liabilities which, consistent with
standard insurance industry practices,
are excluded from coverage in liability
Environmental Protection Agency
insurance policies for property
damage. However, such exclusions for
property damage shall not include cor-
rective action associated with releases
from tanks which are covered by the
policy.
(1) Provider of financial assurance
means an entity that provides finan-
cial assurance to an owner or operator
of an underground storage tank
through one of the mechanisms listed
in §5 280.95-280.103, including a guar-
antor, insurer, risk retention group,
surety. Issuer of a letter of credit,
issuer of a state-required mechanism,
or a state.
(m) Substantial business relation-
ship means the extent of a business re-
lationship necessary under applicable
state law to make a guarantee contract
issued incident to that relationship
valid and enforceable. A guarantee
contract is issued "incident to that re-
lationship" if it arises from and de-
pends on existing economic transac-
tions between the guarantor and the
owner or operator.
(n) Tangible net worth means the
tangible assets that remain after de-
ducting liabilities; such assets do not
Include intangibles such as goodwill
and rights to patents or royalties. For
purposes of this definition, "assets"
means all existing and all probable
future economic benefits obtained or
controlled by a particular entity as a
result of past transactions.
(o) Termination under 8 280.97(b)(1)
and S 280.97(b)(2) means only those
changes that could result in a gap in
coverage as where the insured has not
obtained substitute coverage or has
obtained substitute coverage with a
different retroactive date than the ret-
roactive date of the original policy.
[53 FR 43370, Oct. 26, 1988, as amended at
54 FR 47081, Nov. 9. 1989]
8 280.93 Amount and scope of required fi-
nancial responsibility.
(a) Owners or operators of petrole-
um underground storage tanks must
demonstrate financial responsibility
for taking corrective action and for
compensating third parties for bodily
injury and property damage caused by
accidental releases arising from the
operation of petroleum underground
§ 280.93
storage tanks in at least the following
per-occurrence amounts:
(1) For owners or operators of petro-
leum underground storage tanks that
are located at petroleum marketing fa-
cilities. or that handle an average of
more than 10,000 gallons of petroleum
per month based on annual through-
put for the previous calendar year; $1
million.
(2) For all other owners or operators
of petroleum underground storage
tanfo;; $500,000.
(b) Owners or operators of petrole-
um underground storage tanks must
demonstrate financial responsibility
for taking corrective action and for
compensating third parties for bodily
injury and property damage caused by
accidental releases arising from the
operation of petroleum underground
storage tanks in at least the following
annual aggregate amounts:
(1) For owners or operators of 1 to
100 petroleum underground storage
tanks, $1 million; and
(2) For owners or operators of 101 or
more petroleum underground storage
tanks, $2 million.
(c) For the purposes of paragraphs
(b) and (f) of this section, only, "a pe-
troleum underground storage tank"
means a single containment unit and
does not mean combinations of single
containment units.
(d) Except as provided in paragraph
(e) of this section, if the owner or op-
erator uses separate mechanisms or
separate combinations of mechanisms
to demonstrate financial responsibility
for:
(1) Taking corrective action;
(2) Compensating third parties for
bodily injury and property damage
caused by sudden accidental releases;
or
(3) Compensating third parties for
bodily injury and property damage
caused by nonsudden accidental re-
leases, the amount of assurance pro-
vided by each mechanism or combina-
tion of mechanisms must be in the full
amount specified in paragraphs (a)
and (b) of this section.
(e) If an owner or operator uses sep-
arate mechanisms or separate combi-
nations of mechanisms to demonstrate
financial responsibility for different
petroleum underground storage tanks,
1015
-------
§ 280.94
40 CFR Ch. I (7-1-92 Edition)
the annual aggregate required shall be
based on the number of tanks covered
by each such separate mechanism or
combination of mechanisms.
(f) Owners or operators shall review
the amount of aggregate assurance
provided whenever additional petrole-
um underground storage tanks are ac-
quired or installed. If the number of
petroleum underground storage tanks
for which assurance must be provided
exceeds 100, the owner or operator
shall demonstrate financial responsi-
bility in the amount of at least $2 mil-
lion of annual aggregate assurance by
the anniversary of the date on which
the mechanism demonstrating finan-
cial responsibility became effective. If
assurance is being demonstrated by a
combination of mechanisms, the
owner or operator shall demonstrate
financial responsibility in the amount
of at least $2 million of annual aggre-
gate assurance by the first-occurring
effective date anniversary of any one
of the mechanisms combined (other
than a financial test or guarantee) to
provide assurance.
(g) The amounts of assurance re-
quired under this section exclude legal
defense costs.
(h) The required per-occurrence and
annual aggregate coverage amounts do
not in any way limit the liability of
the owner or operator.
§ 280.94 Allowable mechanisms and com-
binations of mechanisms.
(a) Subject to the limitations of
paragraphs (b) and (c) of this section,
an owner or operator may use any one
or combination of the mechanisms
listed in §§ 280.95 through 280.103 to
demonstrate financial responsibility
under this subpart for one or more un-
derground storage tanks.
(b) An owner or operator may use a
guarantee or surety bond to establish
financial responsibility only if the
Attorney(s) General of the state(s) in
which the underground storage tanks
are located has (have) submitted a
written statement to the implement-
ing agency that a guarantee or surety
bond executed as described in this sec-
tion is a legally valid and enforceable
obligation in that state.
(c) An owner' or operator may use
self-insurance in combination with a
guarantee only if. for the purpose of
meeting the requirements of the fi-
nancial test under this rule, the finan-
cial statements of the owner or opera-
tor are not consolidated with the fi-
nancial statements of the guarantor.
§ 280.95 Financial test of self-insurance.
(a) An owner or operator, and/or
guarantor, may satisfy the require-
ments of § 280.93 by passing a finan-
cial test as specified In this section. To
pass the financial test of self-insur-
ance. the owner or operator, and/or
guarantor must meet the criteria of
paragraph (b) or (c) of this section
based on year-end financial statements
for the latest completed fiscal year.
(b)(1) The owner or operator, and/or
guarantor, must have a tangible net
worth of at least ten times:
(1) The total of the applicable aggre-
gate amount required by § 280.93,
based on the number of underground
storage tanks for which a financial
test is used to demonstrate financial
responsibility to EPA under this sec-
tion or to a state implementing agency
under a state program approved by
EPA under 40 CFR part 281;
(11) The sum of the corrective action
cost estimates, the current closure and
post-closure care cost estimates, and
amount of liability coverage for which
a financial test is used to demonstrate
financial responsibility to EPA under
40 CFR 264.101, 264.143, 264.145,
265.143, 165.145, 264.147, and 265.147
or to a state Implementing agency
under a state program authorized by
EPA under 40 CFR part 271; and
(iii) The sum of current plugging
and abandonment cost estimates for
which a financial test is used to dem-
onstrate financial responsibility to
EPA under 40 CFR 144.63 or to a state
implementing agency under a state
program authorized by EPA under 40
CFR part 145.
(2) The owner or operator, and/or
guarantor, must have a tangible net
worth of at least $10 million.
(3) The owner or operator, and/or
guarantor, must have a letter signed
by the chief financial officer worded
as specified In paragraph (d) of this
section.
Environmental Protection Agency
(4) Tl>e owner or operator, and/or
guarantor, must either:
(1) File financial statements annual-
ly with the U.S. Securities and Ex-
change Commission, the Energy Infor-
mation Administration, or the Rural
Electrification Administration; or
(11) Report annually the firm's tangi-
ble net worth to Dun and Bradstreet,
and Dun and Bradstreet must have as-
signed the firm a financial strength
rating of 4A or 5A.
(5) The firm's year-end financial
statements, if Independently audited,
cannot Include an adverse auditor's
opinion, a disclaimer of opinion, or a
"going concern" qualification.
(c)(1) The owner or operator, and/or
guarantor must meet the financial test
requirements of 40 CFR 264.147(f)(1),
substituting the appropriate amounts
specified in § 280.93 (b)(1) and (b)(2)
for the "amount of liability coverage"
each time specified in that section.
(2) The fiscal year-end financial
statements of the owner or operator,
and/or guarantor, must be examined
by an independent certified public ac-
countant and be accompanied by the
accountant's report of the examina-
tion.
(3) The firm's year-end financial
statements cannot include an adverse
auditor's opinion, a disclaimer of opin-
ion, or a "going concern" qualification.
(4) The owner or operator, and/or
guarantor, must have a letter signed
by the chief financial officer, worded
as specified in paragraph (d) of this
section.
(5) If the financial statements of the
owner or operator, and/or guarantor,
are not submitted annually to the U.S.
Securities and Exchange Commission,
the Energy Information Administra-
tion or the Rural Electrification Ad-
ministration, the owner or operator,
and/or guarantor, must obtain a spe-
cial report by an independent certified
public accountant stating that:
(i) He has compared the data that
the letter form the chief financial offi-
cer specifies as having been derived
from the latest year-end financial
statements of the owner or operator,
and/or guarantor, with the amounts
in such financial statements; and
(ii) In connection with that compari-
son. no matters came to his attention
§ 280.95
which caused him to believe that the
specified data should be adjusted.
(d) To demonstrate that it meets the
financial test under paragraph (b) or
(c) of this section, the chief financial
officer of the owner or operator, or
guarantor, must sign, within 120 days
of the close of each financial reporting
year, as defined by the twelve-month
period for which financial statements
used to support the financial test are
prepared, a letter worded exactly as
follows, except that the instructions in
brackets are to be replaced by the rele-
vant information and the brackets de-
leted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert:
name and address of the owner or operator,
or guarantor]. This letter is in support of
the use of [insert: "the financial test of self-
insurance." and/or "guarantee") to demon-
strate financial responsibility for [insert:
"taking corrective action" and/or "compen-
sating third parties for bodily injury and
property damage"] caused by [insert: "sud-
dent accidential releases" and/or "nonsud-
den £i?cidential releases"] in the amount of
at least [insert: dollar amount] per occur-
rence and [insert: dollar amount] annual ag-
gregate arising from operating (an) under-
ground storage tank(s).
Underground storage tanks at the follow-
ing facilities are assured by this financial
test or a financial test under an authorized
State program by this [insert: "owner or op-
erator." and/or "guarantor"]: [List for each
facility: the name and address of the facility
where tanks assured by this financial test
are located, and whether tanks are assured
by this financial test or a financial test
under a State program approved under 40
CFR part 281. If separate mechanisms or
combinations of mechanisms are being used
to assure any of the tanks at this facility,
list each tank assured by this financial test
or a financial test under a State program
authorized under 40 CFR part 281 by the
tank Identification number provided In the
notification submitted pursuant to 40 CFR
280.22 or the corresponding State require-
ments.]
A [insert: "financial test." and/or "guar-
antee"] is also used by this [insert: "owner
or operator," or "guarantor"] to demon-
strate evidence of financial responsibility in
the following amounts under other EPA
regulations or state programs authorized by
EPA under 40 CFR parts 271 and 145:
-------
§ 280.95
40 CFR Ch. I (7-1-92 Edition)
EPA Regulations Amount
Closure (5S 264.143 and 285.143) $
Post-Closure Care (55 264.145 and
265.145) $
Liability Coverage (55 264.147 and
265.147) $
Corrective Action (SS 264.101(b)) $
Plugging and Abandonment
(5 144.63) $
Closure $
Post-Closure Care $
Liabilltly Coverage J
Corrective Action $
Plugging and Abandonment $
Total $
This [insert: "owner or operator." or
"guarantor"] has not received an adverse
opinion, a disclaimer of opinion, or a "going
concern" qualification from an independent
auditor on his financial statements for the
latest completed fiscal year.
[Fill in the information for Alternative I
if the criteria of paragraph (b) of 5 280.95
are being used to demonstrate compliance
with the financial test requirements. Fill in
the Information for Alternative II if the cri-
teria of paragraph (c) of S 280.95 are being
used to demonstrate compliance with the fi-
nancial test requirements.]
Alternative I
1. Amount of annual UST ag-
gregate coverage being as-
sured by a financial test,
and/or guarantee $
2. Amount of corrective action,
closure and post-closure
care costs, liability cover-
age, and plugging and aban-
donment costs covered by a
financial test, and/or guar-
antee $
3. Sum of lines 1 and 2 $
4. Total tangible assets $
5. Total liabilities llf any of the
amount reported on line 3
is included In total liabil-
ities, you may deduct that
amount from this line and
add that amount to line 6].... $
6. Tangible net worth [subtract
line 5 from line 4] $
Yes No
7. Is line 6 at least $10 million?.... _
8. Is line 6 at least 10 times line
3? _
9. Have financial statements for
' the latest fiscal year been
filed with the Securities
and Exchange Commission?.. _
Alternative /—Continued
10. Have financial statements for
the latest fiscal year been
filed with the Energy Infor-
mation Administration?
11. Have financial statements for
the lastest fiscal year been
filed with the Rural Electri-
fication Administration?
12. Has financial information
been provided to Dun and
Bradstreet. and has Dun
and Bradstreet provided a
financial strength rating of
4A or 5A? [Answer "Yes"
only if both criteria have
been met.] _
Alternative II
1. Amount of annual UST ag-
gregate coverage being as-
sured by a test, and/or
guarantee $_
2. Amount of corrective action,
closure and post-closure
care costs, liability cover-
age, and plugging and aban-
donment costs covered by a
financial test, and/or guar-
antee $.
3. Sum of lines 1 and 2 $.
4. Total tangible assets $.
5. Total liabilities [if any of the
amount reported on line 3
is included in total liabil-
ities, you may deduct that
amount from this line and
add that amount to line 6].... $_
6. Tangible net worth (subtract
line 5 from line 4] $_
7. Total assets in the U.S. [re-
quired only if less than 90
percent of assets are locat-
ed In the U.S.] $.
r Yes No
8. Is line 6 at least 310 million? ....$ _
9. Is line 6 at least 6 times line
3? _
10. Are at least 90 percent of
assets located In the U.S.?
(If "No." complete line 11.]... _
11. Is line 7 at least 6 times line
3? .' _
[Pill In either lines 12-15 or lines 16-18:]
12. Current assets $
13. Current liabilities
14. Net working capital [subtract
line 13 from line 12]
Yes No
15. Is line 14 at least 6 times line
3? _
16. Current bond rating of most
recent bond Issue _
17. Name of rating service _
18. Date of maturity of bond _
Environmental Protection Agency
Alternative /—Continued
19. Have financial statements for
the latest fiscal year been
filed with the SEC. the
Energy Information Admin-
istration. or the Rural Elec-
trification Administration?.... _
[If "No." please attach a report from an
independent certified public accountant cer-
tifying that there are no material differ-
ences between the data as reported in lines
4-18 above and the financial statements for
the latest fiscal year.]
[For both Alternative I and Alternative II
complete the certification with this state-
ment.]
I hereby certify that the wording of this
letter is Identical to the wording specified in
40 CFR part 280.95(d) as such regulations
were constituted on the date shown immedi-
ately below.
[Signature]
[Name]
[Title]
[Date]
(e) If an owner or operator using the
test to provide financial assurance
finds that he or she no longer meets
the requirements of the financial test
based on the year-end financial state-
ments, the owner or operator must
obtain alternative coverage within 150
days of the end of the year for which
financial statements have been pre-
pared.
(f) The Director of the implement-
ing agency may require reports of fi-
nancial condition at any time from the
owner or operator, and/or guarantor.
If the Director finds, on the basis of
such reports or other information,
that the owner or operator, and/or
guarantor, no longer meets the finan-
cial test requirements of § 280.95(b) or
(c) and (d), the owner or operator
must obtain alternate coverage within
30 days after notification of such a
finding.
(g) If the owner or operator fails to
obtain alternate assurance within 150
days of finding that he or she no
longer meets the requirements of the
financial test based on the year-end fi-
nancial statements, or within 30 days
of notification by the Director of the
implementing agency that he or she
no longer meets the requirements of
the financial test, the owner or opera-
§ 280.96
tor must notify the Director of such
failure within 10 days.
9 280.96 Guarantee.
(a) An owner or operator may satisfy
the requirements of § 280.93 by obtain-
ing a guarantee that conforms to the
requirements of this section. The
guarantor must be:
(1)A firm that (i) possesses a con-
trolling interest in the owner or opera-
tor; (ii) possesses a controlling interest
in a firm described under paragraph
(a)(l)(i) of this section; or, (iii) is con-
trolled through stock ownership by a
common parent firm that possesses a
controlling interest in the owner or op-
erator; or,
(2) A firm engaged in a substantial
business relationship with the owner
or operator and issuing the guarantee
as an act incident to that business re-
lationship.
(b) Within 120 days of the close of
each financial reporting year the guar-
antor must demonstrate that it meets
the financial test criteria of § 280.95
based on year-end financial statements
for the latest completed financial re-
porting year by completing the letter
from the chief financial officer de-
scribed in § 280.95(d) and must deliver
the letter to the owner or operator. If
the guarantor fails to meet the re-
quirements of the financial test at the
end of any financial reporting year,
within 120 days of the end of that fi-
nancial reporting year the guarantor
shall send by certified mail, before
cancellation or nonrenewal of the
guarantee, notice to the owner or op-
erator. If the Director of the imple-
menting agency notifies the guarantor
that he no longer meets the require-
ments of the financial test of § 280.95
(b) or (c) and (d), the guarantor must
notify the owner or operator within 10
days of receiving such notification
from the Director. In both cases, the
guarantee will terminate no less than
120 days after the date the owner or
operator receives the notification, as
evidenced by the return receipt. The
owner or operator must obtain alter-
native coverage as specified in
§ 280.110(c).
(c) The guarantee must be worded as
follows, except that Instructions in
1019
-------
§ 280.96
40 CFR Ch. I (7-1-92 Edition)
brackets are to be replaced with the
relevant information and the brackets
deleted:
Guarantee
Guarantee made this [date] by (name of
guaranteeing entity], a business entity orga-
nized under the laws of the state of [name
of state), herein referred to as guarantor, to
[the state Implementing agency] and to any
and all third parties, and obligees, on behalf
of [owner or operator] of [business ad-
dress].
Recitals.
(1) Guarantor meets or exceeds the finan-
cial test criteria of 40 CFR 280.95
-------
§ 280.97
40 CFR Ch. I (7-1-92 Edition)
different for different tanks or locations, in-
dicate the type of coverage applicable to
each tank or location] arising from operat-
ing the underground storage tank(s) identi-
fied above.
The limits of liability are [insert the
dollar amount of the "each occurrence" and
"annual aggregate" limits of the Insurer's
or Group's liability; if the amount of cover-
age is different for different types of cover-
age or for different underground storage
tanks or locations, indicate the amount of
coverage for each type of coverage and/or
for each underground storage tank or loca-
tion], exclusive of legal defense costs, which
are subject to a separate limit under the
policy. This coverage is provided under
[policy number]. The effective date of said
policy is [date],
2. The insurance afforded with respect to
such occurrences is subject to all of the
terms and conditions of the policy; provided,
however, that any provisions inconsistent
with subsections (a) through (e) of this
Paragraph 2 are hereby amended to con-
form with subsections (a) through (e);
a. Bankruptcy or insolvency of the insured
shall not relieve the {"Insurer" or "Group"]
of its obligations under the policy to which
this endorsement is attached.
b. The ["Insurer" or "Group"] is liable for
the payment of amounts within any deduct-
ible applicable to the policy to the provider
of corrective action or a damaged third-
party. with a right of reimbursement by the
insured for any such payment made by the
["Insurer" or "Group"]. This provision does
not apply with respect to that amount of
any deductible for which coverage is demon-
strated under another mechanism or combi-
nation of mechanisms as specified in 40
CFR 280.95-280.102.
c. Whenever requested by [a Director of
an implementing agency], the ["Insurer" or
"Group"] agrees to furnish to [the Direc-
tor] a signed duplicate original of the policy
and all endorsements.
d. Cancellation or any other termination
of the insurance by the ["Insurer" or
"Group"], except for non-payment of pre-
mium or misrepresentation by the Insured,
will be effective only upon written notice
and only after the expiration of 60 days
after a copy of such written notice is re-
ceived by the insured. Cancellation for non-
payment of premium or misrepresentation
by the insured will be effective only upon
written notice and only after expiration of a
minimum of 10 days after a copy of such
written notice is received by the insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise
covered by the policy that are reported to
the ("Insurer" or "Group"! within six
months of the effective date of cancellation
or non-renewal of the policy except where
the new or renewed policy has the same ret-
roactive date or a retroactive date earlier
than that of the prior policy, and which
arise out of any covered occurrence that
commenced after the policy retroactive
date, if applicable, and prior to such policy
renewal or termination date. Claims report-
ed during such extended reporting period
are subject to the terms, conditions, limits,
including limits of liability, and exclusions
of the policy ]
I hereby certify that the wording of this
Instrument is identical to the wording in 40
CFR 280.97(b)(1) and that the ["Insurer" or
"Group"] is ["licensed to transact the busi-
ness of insurance or eligible to provide in-
surance as an excess or surplus lines insurer
in one or more states"].
[Signature of authorized representative of
Insurer or Risk Retention Group]
[Name of person signing]
[Title of person signing). Authorized Repre-
sentative of [name of Insurer or Risk Re-
tention Group]
[Address of Representative]
(2) Certificate of Insurance
Name: [name of each covered location]
Address: [address of each covered location]
Policy Number:
Endorsement (If applicable):
Period of Coverage: [current policy period]
Name of [Insurer or Risk Retention
Group]:
Address of [Insurer or Risk Retention
Group];
Name of Insured: -
Address of Insured:
Certification:
1. [Name of Insurer or Risk Retention
Group], [the "Insurer" or "Group"], as
identified above, hereby certifies that it has
issued liability insurance covering the fol-
lowing underground storage tank(s):
[List the number of tanks at each facility
and the name(s) and address(es) of the
facility(les) where the tanks are located.
If more than one instrument is used to
assure different tanks at any one facili-
ty, for each tank covered by this instru-
ment, list the tank identification
number provided in the notification sub-
mitted pursuant to 40 CFR 280.22, or
Environmental Protection Agency
§ 280.98
the corresponding state requirement,
and the name and address of the facili-
ty.]
for [insert: "taking corrective action" and/
or "compensating third parties for bodily
injury and property damage caused by"
either "sudden accidental releases" or "non-
sudden accidental releases" or "accidental
releases"; in accordance with and subject to
the limits of liability, exclusions, conditions,
and other terms of the policy: if coverage is
different for different tanks or locations, in-
dicate the type of coverage applicable to
each tank or location] arising from operat-
ing the underground storage tank(s) identi-
fied above.
The limits of liability are (insert the
dollar amount of the "each occurrence" and
"annual aggregate" limits of the Insurer's
or Group's liability; if the amount of cover-
age is different for different types of cover-
age or for different underground storage
tanks or locations, indicate the amount of
coverage for each type of coverage and/or
for each underground storage tank or loca-
tion], exclusive of legal defense costs, which
are subject to a separate limit under the
policy. This coverage is provided under
[policy number]. The effective date of said
policy is [date].
2. The ["Insurer" or "Group"] further
certifies the following with respect to the
insurance described in Paragraph 1:
a. Bankruptcy or insolvency of the insured
shall not relieve the ["Insurer" or "Group"]
of its obligations under the policy to which
this certificate applies.
b. The ["Insurer" or "Group"] is liable for
the payment of amounts within any deduct-
ible applicable to the policy to the provider
of corrective action or a damaged third-
party. with a right of reimbursement by the
insured for any such payment made by the
["Insurer" or "Group"J. This provision does
not apply with respect to that amount of
any deductible for which coverage is demon-
strated under another mechanism or combi-
nation of mechanisms as specified in 40
CFR 280.95-280.102.
c. Whenever requested by [a Director of
an implementing agency], the ["Insurer" or
"Group"] agrees to furnish to [the Direc-
tor] a signed duplicate original of the policy
and all endorsements.
d. Cancellation or any other termination
of the insurance by the ["Insurer" or
"Group"], except for non-payment of pre-
mium or misrepresentation by the insured,
will be effective only upon written notice
and only after the expiration of 60 days
after a copy of such written notice is re-
ceived by the insured. Cancellation for non-
payment of premium or misrepresentation
by the insured will be effective only upon
written notice and only after expiration of a
minimum of 10 days after a copy of such
written notice is received by the insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise
covered by the policy that are reported to
the ["Insurer" or "Group"] within six
months of the effective date of cancellation
or non-renewal of the policy except where
the new or renewed policy has the same ret-
roactive date or a retroactive date earlier
than that of the prior policy, and which
arise out of any covered occurrence that
commenced after the policy retroactive
date. If applicable, and prior to such policy
renewal or termination date. Claims report-
ed during such extended reporting period
are subject to the terms, conditions, limits.
Including limits of liability, and exclusions
of the policy.]
I hereby certify that the wording of this
instrument is identical to the wording in 40
CFR 280.97(b)(2) and that the ["Insurer" or
"Group"] is ["licensed to transact the busi-
ness of Insurance, or eligible to provide in-
surance as an excess or surplus lines insurer,
in one or more states"].
[Signature of authorized representative of
Insurer]
[Type name]
[Title], Authorized Representative of [name
of Insurer or Risk Retention Group]
[Address of Representative]
(c) Each insurance policy must be
issued by an insurer or a risk retention
group that, at a minimum, is licensed
to transact the business of insurance
or eligible to provide insurance as an
excess or surplus lines insurer in one
or more states.
[53 FR 43370, Oct. 26, 1988, as amended at
54 FR 47081, Nov. 9. 1989]
§ 280.98 Surety bond.
(a) An owner or operator may satisfy
the requirements of § 280.93 by obtain-
ing a surety bond that conforms to the
requirements of this section. The
surety company issuing the bond must
be among those listed as acceptable
sureties on federal bonds in the latest
Circular 570 of the U.S. Department
of the Treasury.
(b) The surety bond must be worded
as follows, except that instructions in
brackets must be replaced with the
relevant information and the brackets
deleted;
Performance Bond
Date bond executed:
Period of coverage:
Principal: [legal name and business address
of owner or operator]
-------
§ 280.98
40 CFR Ch. I (7-1-92 Edition)
Type of organization: [insert "individual,"
"Joint venture," "partnership," or "corpora-
tion"]
State of incorporation (if applicable):
Surety(ies): [name(s) and business
address(es)]
Scope of Coverage: [List the number of
tanks at each facility and the name(s) and
address(es) of the facillty(ies) where the
tanks are located. If more than one instru-
ment is used to assure different tanks at
any one facility, for each tank covered by
this Instrument, list the tank identification
number provided in the notification submit-
ted pursuant to 40 CFR 280.22, or the corre-
sponding state requirement, and the name
and address of the facility. List the coverage
guaranteed by the bond: "taking corrective
action" and/or "compensating third parties
for bodily injury and property damage
caused by" either "sudden accidental re-
leases" or "nonsudden accidental releases"
or "accidental releases" "arising from oper-
ating the underground storage tank"].
Penal sums of bond:
Per occurrence $
Annual aggregate $
Surety's bond number:
Know All Persons by These Presents, that
we, the Principal and Surety(ies), hereto are
firmly bound to [the implementing agency],
in the above penal sums for the payment of
which we bind ourselves, our heirs, execu-
tors, administrators, successors, and assigns
jointly and severally: provided that, where
the Surety(ies) are corporations acting as
co-sureties, we, the Sureties, bind ourselves
in such sums Jointly and severally only for
the purpose of allowing a joint action or ac-
tions against any or all of us, and for all
other purposes each Surety binds itself,
jointly and severally with the Principal, for
the payment of such sums only as is set
forth opposite the name of such Surety, but
if no limit of liability is indicated, the limit
of liability shall be the full amount of the
penal sums.
Whereas said Principal is required under
Subtitle I of the Resource Conservation and
Recovery Act (RCRA), as amended, to pro-
vide financial assurance for [insert: "taking
corrective action" and/or "compensating
third parties for bodily Injury and property
damage caused by" either "sudden acciden-
tal releases" or "nonsudden accidental re-
leases" or "accidental releases"; if coverage
is different for different tanks or locations,
indicate the type of coverage applicable to
each tank or location] arising from operat-
ing the underground storage tanks identi-
fied above, and
Whereas said Principal shall establish a
standby trust fund as is required when a
surety bond is used to provide such financial
assurance:
Now, therefore, the conditions of the obli-
gation are such that if the Principal shall
faithfully ["take corrective action, in ac-
cordance with 40 CFR part 280. subpart F
and the Director of the state Implementing
agency's Instructions for," and/or "compen-
sate injured third parties for bodily injury
and property damage caused by" either
"sudden" or "nonsudden" or "sudden and
nonsudden"] accidental releases arising
from operating the tank(s) indentlfled
above, or if the Principal shall provide alter-
nate financial assurance, as specified in 40
CFR part 280, subpart H. within 120 days
after the date the notice of cancellation is
received by the Principal from the
Surety(ies), then this obligation shall be
null and void; otherwise it is to remain in
full force and effect.
Such obligation does not apply to any of
the following:
(a) Any obligation of [insert owner or op-
erator] under a workers' compensation, dis-
ability benefits, or unemployment compen-
sation law or other similar law;
-------
§280.100
40 CFR Ch. I (7-1-92 Edition)
source Conservation and Recovery Act of
1976. as amended."
This letter of credit may be drawn on to
cover [insert: "taking corrective action"
and/or "compensating third parties for
bodily injury and property damage caused
by" either "sudden accidental releases" or
"nonsudden accidental releases" or "acci-
dental releases"] arising from operating the
underground storage tank(s) Identified
below in the amount of [in words] $[insert
dollar amount] - per occurrence and [in
words] ([insert dollar amount] annual ag-
gregate:
[List the number of tanks at each facility
and the name(s) and address(es) of the
facility(les) where the tanks are located. If
more than one instrument is used to assure
different tanks at any one facility, for each
tank covered by this instrument, list the
tank identification number provided in the
notification submitted pursuant to 40 CFR
280.22, or the corresponding state require-
ment, and the name and address of the fa-
cility.]
The letter of credit may not be drawn on
to cover any of the following:
(a) Any obligation of [insert owner or op-
erator] under a workers' compensation, dis-
ability benefits, or unemployment compen-
sation law or other similar law;
(b) Bodily injury to an employee of [insert
owner or operator] arising from, and in the
course of, employment by [insert owner or
operator];
(c) Bodily injury or property damage aris-
ing from the ownership, maintenance, use.
or entrustment to others of any aircraft,
motor vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaned to. in the care, custo-
dy, or control of. or occupied by [insert
owner or operator] that is not the direct
result of a release from a petroleum under-
ground storage tank:
Ce) Bodily injury or property damage for
which [insert owner or operator] is obligat-
ed to pay damages by reason of the assump-
tion of liability in a contract or agreement
other than a contract or agreement entered
into to meet the requirements of 40 CFR
280.93.
This letter of credit is effective as of
[date] and shall expire on [date], but such
expiration date shall be automatically ex-
tended for a period of [at least the length of
the original term] on [expiration date] and
on each successive expiration date, unless,
at least 120 days before the curent expira-
tion date, we notify [owner or operator] by
certified mail that we have decided not to
extend this letter of credit beyond the cur-
rent expiration date. In the event that
[owner or operator] is so notified, any
unused portion of the credit shall be avail-
able upon presentation of your sight draft
for 120 days after the date of receipt by
[owner or operator], as shown on the signed
return receipt.
Whenever this letter of credit is drawn on
under and in compliance with the terms of
this credit, we shall duly honor such draft
upon presentation to us, and we shall depos-
it the amount of the draft directly into the
standby trust fund of [owner or operator] in
accordance with your instructions.
We certify that the wording of this letter
of credit is identical to the wording specified
in 40 CFR 280.99(b) as such regulations
were constituted on the date shown immedi-
ately below.
[Signature(s) and tltle(s) of officlal(s) of is-
suing Institution]
[Date]
This credit is subject to [Insert "the most
recent edition of the Uniform Customs and
Practice for Documentary Credits, pub-
lished by the International Chamber of
Commerce." or "the Uniform Commercial
Code"].
(c) An owner or operator who uses a
letter of credit to satisfy the require-
ments of § 280.93 must also establish a
standby trust fund when the letter of
credit is acquired. Under the terms of
the letter of credit, all amounts paid
pursuant to a draft by the Director of
the implementing agency will be de-
posited by the issuing institution di-
rectly into the standby trust fund in
accordance with instructions from the
Director under § 280.108. This standby
trust fund must meet the require-
ments specified in § 280.103.
(d) The letter of credit must be ir-
revocable with a term specified by the
issuing institution. The letter of credit
must provide that credit be automati-
cally renewed for the same term as the
original term, unless, at least 120 days
before the current expiration date, the
issuing institution notifies the owner
or operator by certified mail of its de-
cision not to renew the letter of credit.
Under the terms of the letter of credit,
the 120 days will begin on the date
when the owner or operator receives
the notice, as evidenced by the return
receipt.
§ 280.100 Use of state-required mecha-
nism.
(a) For underground storage tanks
located in a ; ate that does not have
an approved
-------
§ 280.102
40 CFR Ch. I (7-1-92 Edition)
slbility a letter or certificate describ-
ing the nature of the state's assump-
tion of responsibility. The letter or
certificate from the state must in-
clude, or have attached to it, the fol-
lowing information: the facility's name
and address and the amount of funds
for corrective action and/or for com-
pensating third parties that is assured
by the state. The owner or operator
must maintain this letter or certificate
on file as proof of financial responsi-
bility in accordance with
S 280.107(b)(5).
§ 280.102 Trust fund.
(a) An owner or operator may satisfy
the requirements of 5 280.93 by estab-
lishing a trust fund that conforms to
the requirements of this section. The
trustee must be an entity that has the
authority to act as a trustee and
whose trust operations are regulated
and examined by a federal agency or
an agency of the state in which the
fund is established.
(b) The wording of the trust agree-
ment must be identical to the wording
specified in § 280.103(b)(1), and must
be accompanied by a formal certifica-
tion of acknowledgement as specified
in § 280.103(b)(2).
(c) The trust fund, when established,
must be funded for the full required
amount of coverage, or funded for
part of the required amount of cover-
age and used in combination with
other mechanism(s) that provide the
remaining required coverage.
(d) If the value of the trust fund is
greater than the required amount of
coverage, the owner or operator may
submit a written request to the Direc-
tor of the implementing agency for re-
lease of the excess.
(e) If other financial assurance as
specified in this subpart is substituted
for all or part of the trust fund, the
owner or operator may submit a writ-
ten request to the Director of the im-
plementing agency for release of the
excess.
(f) Within 60 days after receiving a
request from the owner or operator
for release of funds as specified in
paragraph (d) or (e) of this section,
the Director of the implementing
agency will instruct the trustee to re-
lease to the owner or operator such
funds as the Director specifies in writ-
ing.
8 280.103 Standby trust fund.
(a) An owner or operator using any
one of the mechanisms authorized by
§§ 280.96, 280.98, or 280.99 must estab-
lish a standby trust fund when the
mechanism is acquired. The trustee of
the standby trust fund must be an
entity that has the authority to act as
a trustee and whose trust operations
are regulated and examined by a Fed-
eral agency or an agency of the state
in which the fund is established.
(b)(1) The standby trust agreement,
or trust agreement, must be worded as
follows, except that instructions in
brackets are to be replaced with the
relevant information and the brackets
deleted:
Trust Agreement
Trust agreement, the "Agreement," en-
tered into as of [date] by and between
[name of the owner or operator], a [name of
state] [insert "corporation," "partnership,"
"association," or "proprietorship"], the
"Grantor," and [name of corporate trustee],
[insert "Incorporated in the state of "
or "a national bank"], the "Trustee."
Whereas, the United States Environmen-
tal Protection Agency, "EPA," an agency of
the United States Government, has estab-
lished certain regulations applicable to the
Grantor, requiring that an owner or opera-
tor of an underground storage tank shall
provide assurance that funds will be avail-
able when needed for corrective action and
third-party compensation for bodily injury
and property damage caused by sudden and
nonsudden accidental releases arising from
the operation of the underground storage
tank. The attached Schedule A lists the
number of tanks at each facility and the
name
-------
§280.103
40 CFR Ch. I (7-1-92 Edition;
fined In the Investment Company Act of
1940. as amended. 15 U.S.C. 80a-2(a), shall
not be acquired or held, unless they are se-
curities or other obligations of the federal
or a state government;
Cii) The Trustee is authorized to invest the
Fund in time or demand deposits of the
Trustee, to the extent Insured by an agency
of the federal or state government; and
(iii) The Trustee Is authorized to hold
cash awaiting investment or distribution un-
invested for a reasonable time and without
liability for the payment of interest there-
on.
Section 7. Commingling and Investment
The Trustee Is expressly authorized in its
discretion;
(a) To transfer from time to time any or
all of the assets of the Fund to any
common, commingled, or collective trust
fund created by the Trustee in which the
Fund Is eligible to participate, subject to all
of the provisions thereof, to be commingled
with the assets of other trusts participating
therein; and
(b) To purchase shares in any investment
company registered under the Investment
Company Act of 1940. 15 U.S.C. 80a-l et
seq., including one which may be created,
managed, underwritten, or to which invest-
ment advice is rendered or the shares of
which are sold by the Trustee. The Trustee
may vote such shares in its discretion.
Section 8. Express Powers of Trustee
Without in any way limiting the powers
and discretions conferred upon the Trustee
by the other provisions of this Agreement
or by law, the Trustee is expressly author-
ized and empowered:
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by
it. by public or private sale. No person deal-
ing with the Trustee shall be bound to see
to the application of the purchase money or
to inquire Into the validity or expediency of
any such sale or other disposition;
(b) To make, execute, acknowledge, and
deliver any and all documents of transfer
and conveyance and any and all other in-
struments that may be necessary or appro-
priate to carry out the powers herein grant-
ed;
(c) To register any securities held in the
Fund In its own name or in the name of a
nominee and to hold any security in bearer
form or in book entry, or to combine certifi-
cates representing such securities with cer-
tificates of the same Issue held by the
Trustee in other fiduciary capacities, or to
deposit or arrange for the deposit of such
securities in a qualified central depository
even though, when so deposited, such secu-
rities may be merged and held in bulk In the
name of the nominee of such depository
with other securities deposited therein by
another person, or to deposit or arrange for
the deposit of any securities Issued by the
United States Government, or any agency
or instrumentality thereof, with a Federal
Reserve bank, but the books and records of
the Trustee shall at all times show that all
such securities are part of the Fund;
(d) To deposit any cash in the Fund in in-
terest-bearing accounts maintained or sav-
ings certificates issued by the Trustee, in its
separate corporate capacity, or in any other
banking institution affiliated with the
Trustee, to the extent insured by an agency
of the federal or state government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses
All taxes of any kind that may be assessed
or levied against or in respect of the Fund
and all brokerage commissions incurred by
the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in
connection with the administration of this
Trust, including fees for legal services ren-
dered to the Trustee, the compensation of
the Trustee to the extent not paid directly
by the Grantor, and all other proper
charges and disbursements of the Trustee
shall be paid from the Fund.
Section 10. Advice of Counsel
The Trustee may from time to time con-
sult with counsel, who may be counsel to
the Grantor, with respect to any questions
arising as to the construction of this Agree-
ment or any action to be taken hereunder.
The Trustee shall be fully protected, to the
extent permitted by law, in acting upon the
advice of counsel.
Section 11. Trustee Compensation
The Trustee shall be entitled to reasona-
ble compensation for its services as agreed
upon in writing from time to time with the
Grantor.
Section 12. Successor Trustee
The Trustee may resign or the Grantor
may replace the Trustee, but such resigna-
tion or replacement shall not be effective
until the Grantor has appointed a successor
trustee and this successor accepts the ap-
pointment. The successor trustee shall have
the same powers and duties as those con-
ferred upon the Trustee hereunder. Upon
the successor trustee's acceptance of the ap-
pointment, the Trustee shall assign, trans-
fer, and pay over to the successor trustee
the funds and properties then constituting
the Fund. If for any reason the Grantor
cannot or does not act In the event of the
resignation of the Trustee, the Trustee may
apply to a court of competent Jurisdiction
Environmental Protection Agency
§280.10:
for the appointment of a successor trustee
or for instructions. The successor trustee
shall specify the date on which it assumes
administration of the trust in writing sent
to the Grantor and the present Trustee by
certified mail 10 days before such change
becomes effective. Any expenses incurred by
the Trustee as a result of any of the acts
contemplated by this Section shall be paid
as provided in Section 9.
Section 13. Instructions to the Trustee
All orders, requests, and instructions by
the Grantor to the Trustee shall be in writ-
ing. signed by such persons as are designat-
ed in the attached Schedule B or such other
designees as the Grantor may designate by
amendment to Schedule B. The Trustee
shall be fully protected in acting without in-
quiry in accordance with the Grantor's
orders, requests, and instructions. All
orders, requests, and instructions by [the
Director of the implementing agency] to the
Trustee shall be in writing, signed by [the
Director], and the Trustee shall act and
shall be fully protected in acting in accord-
ance with such orders, requests, and instruc-
tions. The Trustee shall have the right to
assume, in the absence of written notice to
the contrary, that no event constituting a
change or a termination of the authority of
any person to act on behalf of the Grantor
or [the director] hereunder has occurred.
The Trustee shall have no duty to act in the
absence of such orders, requests, and in-
structions from the Grantor and/or [the Di-
rector], except as provided for herein.
Section 14. Amendment of Agreement
This Agreement may be amended by an
instrument in writing executed by the
Grantor and the Trustee, or by the Trustee
and [the Director of the implementing
agency] if the Grantor ceases to exist.
Section IS. Irrevocability and Termination
Subject to the right of the parties to
amend this Agreement as provided in Sec-
tion 14, this Trust shall be Irrevocable and
shall continue until terminated at the writ-
ten direction of the Grantor and the Trust-
ee, or by the Trustee and [the Director of
the implementing agency], if the Grantor
ceases to exist. Upon termination of the
Trust, all remaining trust property, less
final trust administration expenses, shall be
delivered to the Grantor.
Section 16. Immunity and Indemnification
The Trustee shall not incur personal li-
ability of any nature in connection with any
act or omission, made in good faith, in the
administration of this Trust, or in carrying
out any directions by the Grantor or [the
Director of the Implementing agency]
issued in accordance with this Agreement.
The Trustee shall be indemnified and savei
harmless by the Grantor, from and agains
any personal liability to which the Truste^
may be subjected by reason of any act o
conduct in its official capacity, including al
expenses reasonably incurred in its defens
in the event the Grantor fails to provid
such defense.
Section 17. Choice of Law
This Agreement shall be administcrec
construed, and enforced according to th
laws of the state of [insert name of state,
or the Comptroller of the Currency in th
case of National Association banks.
Section 18. Interpretation
As used in this Agreement, words in th
singular include the plural and words in th
plural include the singular. The descriptiv
headings for each section of this Agreemen
shall not affect the interpretation or th
legal efficacy of this Agreement.
In Witness whereof the parties hav
caused this Agreement to be executed b
their respective officers duly authorized an
their corporate seals (if applicable) to b
hereunto affixed and attested as of the dat
first above written. The parties below cert
fy that the wording of this Agreement i
identical to the wording specified in 40 CF1
280.103(b)(1) as such regulations were cor
stituted on the date written above.
[Signature of Grantor]
[Name of the Grantor]
[Title]
Attest:
[Signature of Trustee]
[Name of the Trustee]
[Title]
[Seal]
[Signature of Witness]
[Name of the Witness]
[Title]
[Seal]
(2) The standby trust agreement, or tru.'
agreement must be accompanied by
formal certification of acknowledgemer.
similar to the following. State requirement
may differ on the proper content of this a<
knowledgment.
State of
County of
On this [date], before me personally cam
[owner or operator] to me known, wh<
being by me duly sworn, did depose and sa
that she/he resides at [address], that she
he is [title] of [corporation], the corpon
tion described in and which executed th
above Instrument; that she/he knows th
seal of said corporation; that the seal a
fixed to such instrument is such corporat
seal; that it was so affixed by order of th
-------
§280.104
40 CFR Ch. I (7-1-92 Edition)
Board of Directors of said corporation: and
that she/he signed her/his name thereto by
like order.
[Signature of Notary Public3
[Name of Notary Public]
(c) The Director of the implement-
ing agency will instruct the trustee to
refund the balance of the standby
trust fund to the provider of financial
assurance if the Director determines
that no additional corrective action
costs or third-party liability claims will
occur as a result of a release covered
by the financial assurance mechanism
for which the standby trust fund was
established.
(d) An owner or operator may estab-
lish one trust fund as the depository
mechanism - for all funds assured in
compliance with this rule.
[53 FR 43370. Oct. 26, 1968: 53 PR 51274.
Dec. 21. 1988]
8 280.104 Substitution of financial assur-
ance mechanisms by owner or opera-
tor.
(a) An owner or operator may substi-
tute any alternate financial assurance
mechanisms as specified in this sub-
part, provided that at all times he
maintains an effective financial assur-
ance mechanism or combination of
mechanisms that satisfies the require-
ments of § 280.93.
(b) After obtaining alternate finan-
cial assurance as specified in this sub-
part, an owner or operator may cancel
a financial assurance mechanism by
providing notice to the provider of fi-
nancial assurance.
§ 280.105 Cancellation or nonrenewal by a
provider of financial assurance,
(a) Except as otherwise provided, a
provider of financial assurance may
cancel or fail to renew an assurance
mechanism by sending a notice of ter-
mination by certified mail to the
owner or operator.
(1) Termination of a guarantee, a
surety bond, or a letter of credit may
not occur until 120 days after the date
on which the owner or operator re-
ceives the notice of termination, as evi-
denced by the return receipt.
(2) Termination of Insurance or risk
retention group coverage, except for
non-payment or misrepresentation by
the insured, or state-funded assurance
may not occur until 60 days after the
date on which the owner or operator
receives the notice of termination, as
evidenced by the return receipt. Ter-
mination for non-payment of premium
or misrepresentation by the insured
may not occur until a minimum of 10
days after the date on which the
owner or operator receives the notice
of termination, as evidenced by the
return receipt.
(b) If a provider of financial respon-
sibility cancels or fails to renew for
reasons other than incapacity of the
provider as specified in §280.106, the
owner or operator must obtain alter-
nate coverage as specified in this sec-
tion within 60 days after receipt of the
notice of termination. If the owner or
operator fails to obtain alternate cov-
erage within 60 days after receipt of
the notice of termination, the owner
or operator must notify the Director
of the implementing agency of such
failure and submit:
(1) The name and address of the pro-
vider of financial assurance;
(2) The effective date of termina-
tion; and
(3) The evidence of the financial as-
sistance mechanism subject to the ter-
mination maintained in accordance
with § 280.107(b).
[53 FR 43370, Oct. 26, 1988, as amended at
54 FR 47082, Nov. 9, 1989]
§ 280.106 Reporting by owner or operator.
(a) An owner or operator must
submit the appropriate forms listed in
5 280.107(b) documenting current evi-
dence of financial responsibility to the
Director of the implementing agency:
(1) Within 30 days after the owner
or operator Identifies a release from
an underground storage tank required
to be reported under § 280.53 or
§ 280.61;
(2) If the owner or operator fails to
obtain alternate coverage as required
by this subpart, within 30 days after
the owner or operator receives notice
of:
(i) Commencement of a voluntary or
involuntary proceeding under Title 11
(Bakruptcy), U.S. Code, naming a pro-
vider of financial assurance as a
debtor.
Environmental Protection Agency
(ii) Suspension or revocation of the
authority of a provider of financial as-
surance to issue a financial assurance
mechanism.
(iii) Failure of a guarantor to meet
the requirements of the financial test,
(iv) Other incapacity of a provider of
financial assurance; or
(3) As required by | 280.95(g) and
§ 280.105(b).
(b) An owner or operator must certi-
fy compliance with the financial re-
sponsibility requirements of this part
as specified in the new tank notifica-
tion form when notifying the appro-
priate state or local agency of the in-
stallation of a new underground stor-
age tank under § 280.22.
(c) The Director of the Implement-
ing Agency may require an owner or
operator to submit evidence of finan-
cial assurance as described in
§ 280.107(b) or other information rele-
vant to compliance with this subpart
at any time.
(The information requirements in this sec-
tion have been approved by the Office of
Management and Budget under OMB con-
trol number 2050-0066)
§280.107 Recordkeeping.
(a) Owners or operators must main-
tain evidence of all financial assurance
mechanisms used to demonstrate fi-
nancial responsibility under this sub-
part for an underground storage tank
until released from the requirements
of this subpart under § 208.109. An
owner or operator must maintain such
evidence at the underground storage
tank site or the owner's or operator's
place of business. Records maintained
off-site must be made available upon
request of the implementing agency.
(b) An owner or operator must main-
tain the following types of evidence of
financial responsibility:
(1) An owner or operator using an
assurance mechanism specified in
§§ 280.95 through 280.100 or § 280.102
must maintain a copy of the instru-
ment worded as specified.
(2) An owner or operator using a fi-
nancial test or guarantee must main-
tain a copy of the chief financial offi-
cer's letter based on year-end financial
statements for the most recent com-
pleted financial reporting year. Such
evidence must be on file no later than
§280.107
120 days after the close of the finan-
cial reporting year.
(3) An owner or operator using a
guarantee, surety bond, or letter of
credit must maintain a copy of the
signed standby trust fund agreement
and copies of any amendments to the
agreement.
(4) An owner or operator using an
insurance policy or risk retention
group coverage must maintain a copy
of the signed insurance policy or risk
retention group coverage policy, with
the endorsement or certificate of in-
surance and any amendments to the
agreements.
(5) An owner or operator covered by
a state fund or other state assurance
must maintain on file a copy of any
evidence of coverage supplied by or re-
quired by the State under § 280.101(d).
(6) An owner or operator using an
assurance mechanism specified in
§§ 280.95 through 280.102 must main-
tain an updated copy of a certification
of financial responsibility worded as
follows, except that instructions in
brackets are to be replaced with the
relevant information and the brackets
deleted:
Certification of Financial Responsibility
[Owner or operator] hereby certifies that
it is in compliance with the rquirements of
subpart H of 40 CFR part 280.
The financial assurance mechanismls]
used to demonstrate financial responsiblity
under subpart H of 40 CFR part 280 is [are]
as follows:
[For each mechanism, list the type of
mechanism, name of issuer, mechanism
number (if applicable), amount of coverage,
effective period of coverage and whether
the mechanism covers "taking corrective
action" and/or "compensating third parties
for bodily injury and property damage
caused by" either "sudden accidentlal re-
leases" or "nonsudden accidentlal releases"
or "accidental releases."]
[Signature of owner or operator)
[Name of owner or operator!
[Title]
[Date]
[Signature of witness or notary]
[Name of witness or notary]
[Date]
The owner or operator must update
this certification whenever the finan-
cial assurance mechanism(s) used to
-------
§ 280.108
40 CFR Ch. I (7-1-92 Edition)
demonstrate financial responsibility
change(s).
(The Information requirements in this sec-
tion have been approved by the Office of
Management and Budget under OMB con-
trol number 2050-0066)
8 280.108 Drawing on financial assurance
mechanisms.
(a) The Director of the implement-
ing agency shall require the guaran-
tor, surety, or institution issuing a
letter of credit to place the amount of
funds stipulated by the Director, up to
the limit of funds provided by the fi-
nancial assurance mechanism, into the
standby trust if:
(1)(i) The owner or operator fails to
establish alternate financial assurance
within 60 days after receiving notice of
cancellation of the guarantee, surety
bond, letter of credit, or, as applicable,
other financial assurance mechanism;
and
(ii) The Director determines or sus-
pects that a release from an under-
ground storage tank covered by the
mechanism has occurred and so noti-
fies the owner or operator or the
owner or operator has notified the Di-
rector pursuant to subparts E or F of a
release from an underground storage
tank covered by the mechanism; or
(2) The conditions of paragraph
(b)(1) or (b)(2)(i) or (ii) of this section
are satisfied.
(b) The Director of the implement-
ing agency may draw on a standby
trust fund when;
(1) The Director makes a final deter-
mination that a release has occurred
and immediate or long-term corrective
action for the release is needed, and
the owner or operator, after appropri-
ate notice and opportunity to comply,
has not conducted corrrective action
as required under 40 CFR part 280,
subpart F; or
(2) The Director has received either:
(i) Certification from the owner or
operator and the third-party liability
claimant(s) and from attorneys repre-
senting the owner or operator and the
third-party liability claimant(s) that a
third-party liability claim should be
paid. The certification must be worded
as follows, except that instructions in
brackets are to be replaced with the
relevant information and the brackets
deleted:
Certification of Valid Claim
The undersigned, as principals and as
legal representatives of [insert owner or op-
erator] and [insert name and address of
third-party claimant], hereby certify that
the claim of bodily injury [and/or] property
damage caused by an accidental release aris-
ing from operating [owner's or operator's]
underground storage tank should be paid in
the amount of $[ ].
[Signatures]
Owner or Operator
Attorney for Owner or Operator
(Notary) Date
[Signatures)]
Claimant(s)
Attorney(s) for Clalmant(s)
(Notary) Date
or (ii) A valid final court order estab-
lishing a judgment against the owner
or operator for bodily injury or prop-
erty damage caused by an accidental
release from an underground storage
tank covered by financial assurance
under this subpart and the Director
determines that the owner or operator
has not satisfied the judgment.
(c) If the Director of the implement-
ing agency determines that the
amount of corrective action costs and
third-party liability claims eligible for
payment under paragraph (b) of this
section may exceed the balance of the
standby trust fund and the obligation
of the provider of financial assurance,
the first priority for payment shall be
corrective action costs necessary to
protect human health and the envi-
ronment. The Director shall pay third-
party liability claims in the order in
which the Director receives certifica-
tions under paragraph (b)(2)(i) of this
section, and valid court orders under
paragraph (b)(2)(ii) of this section.
§ 280.109 Release from the requirements.
An owner or operator is no longer re-
quired to maintain financial responsi-
bility under this subpart for an under-
ground storage tank after the tank
has been properly closed or, if correc-
tive action is required, after corrective
action has been completed and the
tank has been properly closed as re-
quired by 40 CFR part 280, subpart O.
1034
Environmental Protection Agency
§280.110 Bankruptcy or other incapacity
of owner or operator or provider of fi-
nancial assurance.
(a) Within 10 days after commence-
ment of a voluntary or involuntary
proceeding under Title 11 (Bankrupt-
cy), U.S. Code, naming an owner or op-
erator as debtor, the owner or opera-
tor must notify the Director of the im-
plementing agency by certified mail of
such commencement and submit the
appropriate forms listed in
§ 280.107(b) documenting current fi-
nancial responsibility.
(b) Within 10 days after commence-
ment of a voluntary or involuntary
proceeding under Title 11 (Bankrupt-
cy), U.S. Code, naming a guarantor
providing financial assurance as
debtor, such guarantor must notify
the owner or operator by certified
mail of such commencement as re-
quired under the terms of the guaran-
tee specified in § 280.96.
(c) An owner or operator who ob-
tains financial assurance by a mecha-
nism other than the financial test of
self-insurance will be deemed to be
without the required financial assur-
ance in the event of a bankruptcy or
Incapacity of its provider of financial
assurance, or a suspension or revoca-
tion of the authority of the provider
of financial assurance to issue a guar-
antee, insurance policy, risk retention
group coverage policy, surety bond,
letter of credit, or state-required
mechanism. The owner or operator
must obtain alternate financial assur-
ance as specified in this subpart within
30 days after receiving notice of such
an event. If the owner or operator
does not obtain alternate coverage
§280.111
within 30 days after such notification,
he must notify the Director of the im-
plementing agency.
(d) Within 30 days after receipt of
notification that a state fund or other
state assurance has become incapable
of paying for assured corrective action
or third-party compensation costs, the
owner or operator must obtain alter-
nate financial assurance.
§280.111 Replenishment of guarantees,
letters of credit, or surety bonds.
(a) If at any time after a standby
trust is funded upon the instruction of
the Director of the implementing
agency with funds drawn from a guar-
antee, letter of credit, or surety bond,
and the amount in the standby trust is
reduced below the full amount of cov-
erage required, the owner or operator
shall by the anniversary date of the fi-
nancial mechanism from which the
funds were drawn:
(1) Replenish the value of financial
assurance to equal the full amount of
coverage required, or
(2) Acquire another financial assur-
ance mechanism for the amount by
which funds in the standby trust have
been reduced.
(b) For purposes of this section, the
full amount of coverage required is
the amount of coverage to be provided
by | 280.93 of this subpart. If a combi-
nation of mechanisms was used to pro-
vide the assurance funds which were
drawn upon, replenishment shall
occur by the earliest anniversary date
among the mechanisms.
§280.112 Suspension of enforcement. [Re*
servedJ
i noc
-------
Pt. 280, App. I 40 CFR Ch. i (7-1-92 Edition]
Appendix I to Pakt 280—Notification for Underground Storage Tanks (Form)
Notification for Underground Storage Tanks
> I1UV ifl'MOVt I)
OV|l so 70SI1 nu>.«
4P»uovai t iPlRi S * lo st
T> wrtaalai (w»*i iipiw^twrnl—IwrtwfwraTa t1T-- i-^r~ 1 -¦
tfcb > inlwi MkuM I* C&M. Ulwati— fMk* Snadk. PM-IJJ. Ui- EA.iranaMnUl PnaNctian Awmtj. \
*01 M SuS.W- —idih^lin. O.C 304«0i ard »tkaOffin d Uiaroalbo and V*uiit»»> AH.Io.OHkvaf Mm«»-
mm* tad k4p*. Warhfa(ta«. O.C }0SU. mmiktd "Attaratiaai OrA Offtcr* tar EPA."
STATE (JSC ONLY
10 Numoer
Dai* Received
GENERAL INFORMATION
Wodftud— b frj Fadml la» to afl ¦
M«y t.im. or dlawkroaeM Into eat after May >.wei.T»*krfor—Oca nqyiad
braqplndbjsacdontOaaaftfcaBa '
d *¦*' Ibrt ha*« b««t»
•r* is a* grand «* of
ihrfimaaflm nipwiliit
dBrnwit) Acl.tRCRAl.
Tbc primary purposeof thnnoiificainA proaiam is tolucaie and evaluate undei-
frotirt unit thai si ore or have ttorrd petroirum or hazardous sutosiancr^ It is
eapected that (he inJormation >ou pro\«Jt mill be baso«u knovlcdfr. belief, or recoiWvt wo
Wbo Mot Notify? Scciion 9002 oi RCftA. as amended. requires thai. unk-ss
tirmpirt okvr^olundrrfrowfld tanks thai Mort regulated substances rmisi nmil;
Stale or local utocin of the nKiencr JI heir unls. ^*ner means
i ihe caw of an uraergrouad storage tank iaw m November 8. ISM.
4. pipelii* taoUirs (including gathering lines) regulated under the Natural («as
Pipeline Salei> Art ul I9W, or Ihe Ha/ardrius Ifcjuid Piprhoc Salm Aci (d 1979. or
»h«h>saA intrastate pipeline lairim reguhicd under Ni»« la*s;
5. >grlaiv impoundments. p«is, p»nds. «w U grans;
4. oiwin »aic> or «aoe »atcr Culled ion systems;
7. flir* -lh(PU|t> prnctv> tanks.
liquid traps ch associated gathetingtinrsdirccth related to i«l or pspriduct inn jnd
Pthcnag operations;
sioeayr tanks situated m an underground area (sucti as a bSKcnem. crQat.
cninr»«rkinf .drill. shall, or lunncllil the to under*
brouiht into us« alter thai daw. an\ person «h» o»ns »n undcrgiound si«wa*r tank
u^dlor thestorage,im.ordKpenaJnio) rrfuiucdsubstances,and
(bl in the cm-4 of an> undeig/ounq storage uok in tn* before N'osemhet H. 19*4.
Wfcel SubaUnm An fo*md? The noitiuiiion requirements ap
. this int
¦mprrhen
Rrxf*i«Yse. Compensation and 1 iat»bi> Act of 19fe0lt'ERi I.Aj, «ith the exceptional
> mruirefl
i reiutoied swfrsunres. 1 his includes ant subsiaiwc
driinrti as hi/»rdous in section tot (I
ground storage tanks thai kiMUin r<
(Ml of (hr ^'ctmprrhenshe Emwonmrnuf
but no kmgeY miMon thai date.an\ person «hoi«*ncd such tank unmrdiaid> bel une >ir
combination td unks that (11» used to enntata an accumulation 'rcfuUird suh-
«unce>.* and (2) »hos« \olufne; n|.
mcd oiL or dinel7i«l. and 2. indvurial sohenis. prsiicides. hcrbcidcs•>« (umipnis
WbM Taokt An Eiriodcd? lanks icmoscd liore ihr pound are m« sgbfcvt iu
no*ilea!ion. Other tank* c«ciudcd from ngtiftcaiion are:
1.(armor rr>«Je«ial tanks« 1.(00plloftsor lesscaf*ra> uxrdfixsiox sgbsiancrs rcgubtcd as hazardous »«ste under Subtrllr (' n( Rl'RA. Ii aKo
includes petroleum.t.f . nudr «ul n thertnl »hich is bouid at si^nJard
i'rrs ol tcmpenture and prc\sure|N) dr|rces hahrenhen and 147 pounds pet
¦4|iarr inih afrwilutf)
Mhm To Notify? Cixnplrinl n>Hil»atH>n liwrns shtiuld be <*;ni to ihe address
p«rn ai ihe top c4 this pafC
HlmTo.Nodf;? I . 0» ?v»> tit unde'froend %itrt*fe lank > in vh' if thai han* N.m
la ken nui ol nperatiun after .lanuart I. 1074. but still in ihe yritund. mu%i ivmU> b%
Mas ¦. I9K6 2. Owners »ho brinf ur»dcr|round siorayr tanks into uvraliet Ma\ H.
Nma, muxi niHiJs »vtf ua>. PubK Agancy. o» Oma* Entity)
Street Address
County
City
Phone Number
Type ol Owner fMariraff (fteteppfyB/
n Current Q Sut« or Local Gov't
~ CiWT_ pi Federal Go/l
Former LJ (GSAttcility I.D.no.
I Corporate
I Ownership
1 uncertain
II. LOCATION OF TANK(S)
(If same as Section v merti boa here ~ i
Facility Name or Company Site identifier, as applicable
Street Address or State Road, as applicable
County
City (nearest)

Mark box here if tank(i)

are located on land withm

an Indian reservation or
LJ

on other Indian trust lands

Phone Number
III. CONTACT PERSON AT TANK LOCATION
IV. TYPE OF NOTIFICATION
MAft box here only il this « an amended or subsequent notification tor this location.
v. CERTIFICATION (Rvad and *lgn after completing Section VI.)
i certify under penalty ol law that I have personally examined and am familiar with the information submitted in thia And all attached
documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information. I belteve that the
rubmitted information is true, accurate, and complete.
Nameandofficialtiiieofowrterorowner'saumorizedrepresnntative Signature
Date Signed
CONTINUE ON REVERSE SIDE
Environmental Protection Agency pt. 280, App. I
Oariw w«ma {Immh WaiHInw If I firm 11} p»g« No. of Page*

Tank Identification No. (e.g.. ABC >123). or ;
Arbitrarily Assigned Sequential Number (e.g.. 1.2.3...)
Tank No.
Tank No.
Tank No.
Tank No.
Tank No.
1. Status of Tank _
^ ^ Currently m Use
(M»rk aWthai tpp/yB; _ _ • ,,
Temporarily Ou« Ol Use
Permanently Oul ol Use
Brought into Use alter S/8/86
C3
CZJ
~
~
IZZI
CZZ)
CZD
(ZZ)
IZZJ
(ZD
IZD
IZD
IZD
CZD
IZD
(ZD
(ZD
CD
CD
CD
2. Estimated Age (Years)

3. Estimated Total Capacity (Galions)
an
IZZJ
IZZI
IZZI
IZD
IZD
CZD
IZD
CZD
(ZD
CZD
(ZD
CD
CD
CD
CD
4. Material of Construction CraA.
Conc'Ce
Fiberglass Reinforced Plastic
Unknown
Other. Please Specify
tz=]
CZ3
[ZD
cm
5. Internal Protection
IMumttolwIym) Calhodtc ProteclK>n
Tntenor Lining (e.g.. epo*y resins)
None
Unknown
Other. Please Specify
CZD
1=1
1=1
IZZI
CZD
cz:
IZZI
CZZ
CD
IZD
(ZD
IZD
CZD
(ZD
CZD
1 1
CD
CD
CD
CD
6. External Protection _ Q .
t . Cathodic Protection
(MarkkathatipptyR) _ . _ ,
t -rr~rm>/ Painted (e g . asphaltic)
Fiberglass Reinforced Plastic Coated
None
Unknown
Other. Please Specify
(ZZ3
1=]
CZ2
cm
CUD
CZZ
IZZI
IZZI
IZZI
CD
(ZD
(ZD
(ZD
(ZD
(ZD
CZD
IZD
(ZD
CZD
IZD
CD
CD
CD
CD
CZD
7'pt<*%9 Bare Steel
Galvamzeo Sieel
Fiberglass Reinforced Plastic
Cathodicaify Protected
Unknown
Other. Please Specify |
CZI
=~
CZD
(Z=I
(=1
IZZI
IZZI
B
IZZI
IZZI
CZD
CZD
IZD
CZD
CZD
CZD
(ZD
IZZJ
CD
CD
CD
CZD
CD
6. Substance Currently or Last Stored - Emotw
In Greatest Quantity by Volume .
b'
Kerosene
Gasoline (including alcohol blends)
Used Oil
Other. Ptease Specify
c Hazardous Substance
Please Indicate Name of Principal CERCLA Substance
OR
Chemical Abstract Service (CAS) No.
Mark box O if tank stores a mixture of substances
d. Unknown
~
CZD
CZZJ
tZZ)
CZI1
IZZJ
CZD
IZZJ
CZD
IZD
CZD
CZD
[ZD
[ZD
CZD
IZD
IZD
(ZD
(ZD
CZD
CD
CD
CD
CD
CD
(ZD
IZZI
CZ]
(ZD
CZD

IZZI
CZD
IZD
CZD
CZD
(ZD
IZD
(ZD
CD
CD
9. Additional Informally ¦ (for tanks permanently
taken out of service)
a. Estimated date last used (mo/yr)
b. Estimated quantity o> substance remaining (gal.)
c. Mark box 01 il tank was filled with inert material
(e.g.. sand, concrete)
/
/
/
/
/

CZD

fZZ)
[ZZ3
(ZD
CD
EPA Fo>m r&30-1 lAav^M 9 601 R«v«fM Paga 2
-------
Pt. 280, App. i
40 CFR Ch. I (7-1-92 Edition)
Own or Nam* (fr<*n Section I) Location (from Section II) Page Mo. of Pages
VII CERTIFICATION OF COMPLIANCE (COMPLETE FOR All NEW 1ANKSAT THIS LOCATION)
10. installation (mark all that apply)-
CD The installer has been certified by me tank and piping manufacturers
CD The installer has been certified or licensed by the onpiementing agency
CD The installation has been inspected and certified by a registered professional engineer
~ The installation nas been inspected and approved bv the implementing agency
~ AD work usted on the manufacturer's mstaQaton checklists has been completed
Another method was used as aDowed by the implementing agency Please specify
11 Release Detection (mark an that apply)
~ Manual tank gauging.
CD Tank tightness testing with inventory controls
CD Automatic tank gauging.
~ Vapor monitorng
~ Ground-water monitoring
~ Interstitial monitoring wittan a secondary barrier
~ Interstitial monitoring within secondary containment
CD Automatic hne leak detectors
CD Une tightness testing
CD Another method allowed by the anpiementtng agency Please speoty
12 Corrosion Protection til appbcabte)
CD As specified lor coated steel tanks with cathodtc protectron
CD as specified tor coated steel piping with cathode protecton
CD Another method allowed by the ^implementing agency Please specify
13 l have financial responsibility in accordance witn Subpart I Please specify
MetrxxJ —
Policy Number
14 OATH l certify thai the information concerning installation provided Item 10 is true to the best of my belief and knowledge,
tnstafler .
Name Date
Pos
-------
Pt. 280, Ak
40 CFR Ch. I (7-1-92 Edition)
Missouri (EPA Form). UST Coordinator.
Missouri Department of Natural Re-
sources, P.O. Box 176. Jefferson City. Mis-
souri 65102,314/751-7428
Montana (EPA Form), Solid and Hazardous
Waste Bureau, Department of Health and
Environmental Science. Cogswell Bldg.,
Room B-201, Helena. Montana 59620
Nebraska (EPA Form), Nebraska State Fire
Marshal, P.O. Box 94677, Lincoln, Nebras-
ka 68509-4677, 402/471-9465
Nevada (EPA Form). Attention: UST Coor-
dinator. Division of Environmental Pro-
tection, Department of Conservation and
Natural Resources. Capitol Complex 201
S. Fall Street, Carson City, Nevada 89710,
800/992-0900. Ext. 4670, 702/885-4670
New Hampshire (EPA Form), NH Dept. of
Environmental Services. Water Supply
and Pollution Control Division, Hazen
Drive. P.O. Box 95. Concord, New Hamp-
shire 03301, Attention: UST Registration
New Jersey (State Form), Underground
Storage Tank Coordinator, Department of
Environmental Protection, Division of
Water Resources (CN-029), Trenton, New
Jersey 08625, 609/292-0424
New Mexico (EPA Form). New Mexico Envi-
ronmental Improvement Division,
Groundwater/Hazardous Waste Bureau,
P.O. Box 968. Santa Fe, New Mexico
37504, 505/827-2933
New York (EPA Form), Bulk Storage Sec-
tion. Division of Water. Department of
Environmental Conservation, 50 Wolf
Road, Room 326, Albany, New York
12233-0001, 518/457-4351
North Carolina (EPA Form). Division of En-
vironmental Management, Ground-Water
Operations Branch, Department of Natu-
ral Resources and Community Develop-
ment, P.O. Box 27687, Raleigh, North
Carolina 27611. 919/733-3221
North Dakota (State Form), Division of
Hazardous Management and Special Stud-
ies, North Dakota Department of Health,
Box 5520, Bismarck, North Dakota 58502-
5520
Northern Mariana Islands (EPA Form),
Chief. Division of Environmental Quality,
P.O. Box 1304, Commonwealth of North-
ern Mariana Islands, S&lpan, CM 96950,
Cable Address: Gov. NMI Saipan, Over-
seas Operator: 6984
Ohio (State Form), State Fire Marshal's
Office, Department of Commerce, 8895 E.
Main Street, Reynoldsburg, Ohio 43068,
State Hotline: 800/282-1927
Oklahoma (EPA Form), Underground Stor-
age Tank Program, Oklahoma Corpora-
tion Comm., Jim Thorpe Building, Okla-
homa City, Oklahoma 73105
Oregon (State Form), Underground Storage
Tank Program, Hazardous and Solid
Waste Division, Department of Environ-
mental Quality, 811 S.W. Sixth Avenue.
Portland. Oregon 98204, 503/229-5788
Pennsylvania (EPA Form), PA Department
of Environmental Resources, Bureau of
Water Quality Management. Ground
Water Unit. 9th Floor Fulton Building.
P.O. Box 2063, Harrisburg. Pennsylvania
17120
Puerto Rico (EPA Form). Director. Water
Quality Control Area. Environmental
Quality Board, Commonwealth of Puerto
Rico, Santurce. Puerto Rico, 809/725-0717
Rhode Island (EPA Form), UST Registra-
tion. Department of Environmental Man-
agement. 83 Park Street, Providence,
Rhode Island 02903, 401/277-2234
South Carolina (State Form), Ground-
Water Protection Division, South Carolina
Department of Health and Environmental
Control, 2600 Bull Street, Columbia,
South Carolina 29201, 803/758-5213
South Dakota (EPA Form), Office of Water
Quality, Department of Water and Natu-
ral Resources. Joe Foss Building, Pierre,
South Dakota 57501,
Tennessee (EPA Form), Tennessee Depart-
ment of Health and Environment, Divi-
sion of Superfund Underground Storage
Tank Section, 150 Ninth Avenue, North,
Nashville, Tennessee 37219-5404, 615/741-
0690
Texas (EPA Form). Underground Storage
Tank Program, Texas Water Commission,
P.O. Box 13087, Austin, Texas 78711
Utah (EPA Form), Division of Envirormen-
tal Health. P.O. Box 45500, Salt Lake
City, Utah 84145-0500
Vermont (State Form), Underground Stor-
age Tank Program. Vermont AEC/Waste
Management Division, State Office Build-
ing, Montpelier, Vermont 05602, 802/828-
3395
Virginia (EPA Form), Virginia Water Con-
trol Board, P.O. Box 11143, Richmond,
Virginia 23230-1143, 804/257-6685
Virgin Islands (EPA Form), 205(J) Coordi-
nator, Division of Natural Resources Man-
agement, 14 F Building 111, Watergut
Homes, Christianstead, St. Croix, Virgin
Islands 00820.
Washington (State Form), Underground
Storage Tank Notification, Solid and Haz-
ardous Waste Program, Department of
Ecology, M/S PV-11, Olympia, Washing-
ton 98504-8711, 206/459-6316
West Virginia (EPA Form), Attention: UST
Notification. Solid and Hazardous Waste,
Ground Water Branch. West Virginia De-
partment of Natural Resources, 1201
Greenbriar Street. Charleston, West Vir-
ginia 25311 .
Wisconsin (State Form). Bureau of Petrole-
um Inspection, P.O. Box 7969, Madison,
Wisconsin 53707, 608/266-7605
Wyoming (EPA Form), Water Quality Divi-
sion, Department of Environmental Qual-
ity, Herschler Building, 4th Floor West,
man
Environmental Protection Agency
§261.10
122 West 25th Street, Cheyenne. Wyo-
ming 82002, 307/777-7781.
Appendix III to Part 280—Statement
for Shipping Tickets and Invoices
Note.—A Federal law (the Resource Con-
servation and Recovery Act (RCRA), as
amended (Pub. L. 98-616)) requires owners
of certain underground storage tanks to
notify designated State or local agencies by
May 8, 1986, of the existence of their tanks.
Notifications for tanks brought into use
after May 8, 1986, must be made within 30
days. Consult EPA's regulations. Issued on
November 8. 1985 (40 CFR part 280) to de-
termine if you are affected by this law.
PART 281—APPROVAL OF STATE
UNDERGROUND STORAGE TANK
PROGRAMS
Subpart A—Purpose, General Requirements
and Scope
Sec.
281.10 Purpose.
281.11 General requirements.
281.12 Scope and definitions.
Subpart B—Components of a Program
Application
281.20 Program application.
281.21 Description of state program.
281.22 Procedures for adequate enforce-
ment.
281.23 Schedule for interim approval.
281.24 Memorandum of agreement.
281.25 Attorney General's statement.
Subpart C—Criteria for No Lets Stringent
281.30 New UST system design, construc-
tion, Installation, and notification.
281.31 Upgrading existing UST systems.
281.32 General operating requirements.
281.33 Release detection.
281.34 Release reporting, investigation,
and confirmation.
281.35 Release response and corrective
action.
281.36 Out-of-service UST systems and clo-
sure.
281.37 Financial responsibility for UST
systems containing petroleum.
281.38 Financial responsibility for USTs
containing hazardous substances. [Re-
served]
Sec.
Subpart D—Adequate Enforcement of
Compliance
281.40 Requirements for compliance moni-
toring program and authority.
281.41 Requirements for enforcement au-
thority.
281.42 Requirements for public participa-
tion.
281.43 Sharing of information.
Subpart E—Approval Procedures
281.50 Approval procedures for state pro-
grams.
281.51 Amendment required at end of in-
terim period.
281.52 Revision of approved state pro-
grams.
Subpart F—Withdrawal of Approval of State
Programs
281.60 Criteria for withdrawal of approval
of state programs.
281.61 Procedures for withdrawal of ap-
proval of state programs.
Authority: Sections 2002, 9004, 9005, 9006
of the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery
Act of 1976, as amended (42 U.S.C. 6912,
6991 (c). (d).
-------
§281.11
40 CFR Ch. I (7-1-92 Edition)
§281.11 General requirements.
(a) State program elements. The fol-
lowing substantive elements of a state
program must be addressed in a state
application for approval:
(1) Requirements for all existing and
new underground storage tanks:
(1) New UST systems (design, con-
struction. installation, and notifica-
tion);
(ii) Upgrading of existing UST sys-
tems:
(iii) General operating requirements;
(iv) Release detection;
(v) Release reporting, investigation,
and confirmation;
(vi) Out-of-service USTs and closure;
(vii) Release response and corrective
action; and
(viii) Financial responsibility for
UST systems containing petroleum.
(2) Provisions for adequate enforce-
ment of compliance with the above
program elements.
(b) Final approval The state must
demonstrate that its requirements
under each state program element for
existing and new UST systems are no
less stringent than the corresponding
federal requirements as set forth in
subpart C of this part, except as pro-
vided in paragraph (c) of this section.
The state must also demonstrate that
it has a program that provides ade-
quate enforcement of compliance with
these requirements.
(c) Interim approval. (1) The Admin-
istrator may approve state programs
with requirements less stringent than
the federal requirements for a period
of 1 to 3 years from September 23,
1988. Such interim approval may be
granted only if state regulatory and/
or legislative change is required in
order for the state program to be no
less stringent than the federal require-
ments and standards under part 280
for one or more of the following pro-
gram elements: Release detection at
existing UST systems; release report-
ing and investigation; and out-of-serv-
ice or closed UST systems.
(2) A state program may receive in-
terim approval if it;
(i) Has requirements for three ele-
ments:
(A) Release Detection;
(B) Release Reporting, Investiga-
tion, and Confirmation; and
(C) Out-of-Service UST Systems and
Closure; and
(ii) Has requirements that are no
less stringent than the corresponding
federal requirements for five elements:
(A) New UST System Design, Con-
struction, Installation and Notifica-
tion;
(B) Upgrading Existing UST Sys-
tems;
(C) General Operating Require-
ments:
(D) Release Response and Corrective
Action; and
(E) Financial Responsibility for UST
systems containing petroleum; and
(iii) Provides for adequate enforce-
ment of compliance with these re-
quirements.
(3) A state with a program that has
received interim approval must receive
final approval of an amended program
containing program elements that are
no less stringent than the correspond-
ing federal program elements under
subpart C in accordance with the fol-
lowing schedule:
(i) If only state regulatory action is
required, the state must submit an
amended program to EPA for approval
before September 23, 1989.
(ii) If only state legislative action is
required, the state must submit an
amended program to EPA for approval
before September 23, 1990.
(iii) If both state legislative and reg-
ulatory action are required, the state
must submit an amended program to
EPA for approval before September
23. 1991.
(d) States with programs approved
under this part are authorized to ad-
minister the state program in lieu of
the federal program and will have pri-
mary enforcement responsibility with
respect to the requirements of the ap-
proved program. EPA retains author-
ity to take enforcement action in ap-
proved states as necessary and will
notify the designated lead state
agency of any such intended action.
§ 281.12 Scope and definitions.
(a) Scope. <1) The Administrator
may approve :ither partial or com-
plete state pr ^rams. A "partial" state
program regulates either solely UST
systems containing petroleum or solely
Environmental Protection Agency
UST systems containing hazardous
substances. If a "partial" state pro-
gram is approved, EPA will administer
the remaining part of the program. A
"complete" state program regulates
both petroleum and hazardous sub-
stance tanks.
(2) EPA will administer the UST
program on Indian lands, except
where Congress has clearly expressed
an intention to grant a state authority
to regulate petroleum and hazardous
substance USTs on Indian lands. In
either case, this decision will not
impair a state's ability to obtain pro-
gram approval for petroleum and/or
hazardous substances on non-Indian
lands in accordance with this part.
(3) Nothing in this subpart precludes
a state from:
(1) Adopting or enforcing require-
ments that are more stringent or more
extensive than those required under
this part; or
(ii) Operating a program with a
greater scope of coverage than that re-
quired under this part. Where an ap-
proved state program has a greater
scope of coverage than required by
federal law, the additional coverage is
not part of the federally-approved pro-
gram.
(b) Definitions. (1) The definitions
in part 280 apply to all subparts of
this part.
(2) For the purpose of this part, the
term interim approval means the ap-
proval received by a state program
that meets the requirements in
1 281.11(c) (1) and (2) for the time
period defined in § 281.11(c)(3).
(3) For the purposes of this part the
term final approval means the approv-
al received by a state program that
meets the requirements in § 281.11(b).
Subpart B—Components of a
Program Application
6 281.20 Program application.
Any state that seeks to administer a
program under this part must submit
an application containing the follow-
ing parts:
(a) A transmittal letter from the
Governor of the state requesting pro-
gram approval;
§281.21
(b) A description in accordance with
§ 281.21 of the state program and op-
erating procedures;
(c) A demonstration of the state's
procedures to ensure adequate en-
forcement;
(d) A schedule for obtaining needed
authorities under interim approval,
where applicable;
(e) A Memorandum of Agreement
outlining roles and responsibilities of
EPA and the implementing agency;
(f) An Attorney General's statement
in accordance with § 281.25 certifying
to applicable state authorities; and
(g) Copies of all applicable state stat-
utes and regulations.
Note: EPA has designed an optional appli-
cation form that is available for use by state
applicants.
§ 281.21 Description of state program.
A state seeking to administer a pro-
gram under this part must submit a
description of the program it proposes
to administer under state law in lieu of
the federal program. The description
of a state's existing or planned pro-
gram must include:
(a) The scope of the state program:
(1) Whether the state program regu-
lates UST systems containing petrole-
um or hazardous substances, or both;
(2) Whether the state is applying for
interim or final approval;
(3) Whether the state program is
more stringent or broader in scope
than the federal program, and in what
ways; and
(4) Whether the state has any exist-
ing authority over Indian lands or has
existing agreements with Indian tribes
relevant to the regulation of under-
ground storage tanks.
(b) The organization and structure
of the state and local agencies with re-
sponsibility for administering the pro-
gram. The Jurisdiction and responsibil-
ities of all state and local implement-
ing agencies must be delineated, ap-
propriate procedures for coordination
set forth, and one state agency desig-
nated as a "lead agency" to facilitate
communications between EPA and the
state.
(c) Staff resources to carry out and
enforce the required state program
elements, both existing and planned.
-------
§281.22
40 CFR Ch. I (7-1-92 Edition)
including the number of employees,
agency where employees are located,
general duties of the employees, and
current limits or restrictions on hiring
or utilization of staff.
(d) An existing state funding mecha-
nism to meet the estimated costs of
administering and enforcing the re-
quired state program elements, and
any restrictions or limitations upon
this funding.
§281.22 Procedures for adequate enforce-
ment.
A state must submit a description of
its compliance monitoring and en-
forcement procedures, including relat-
ed state administrative or judicial
review procedures.
§ 281.23 Schedule for interim approval.
For a state program that must
modify its statutory or regulatory re-
quirements for release detection, re-
lease reporting and investigation, and
out-of-service or closed UST systems
in order to be no less stringent than
the federal requirements, the plan
must include a schedule for making
such changes and for submitting an
amendment to the state application in
accordance with § 281.51.
§ 281.24 Memorandum of agreement.
EPA and the approved state will ne-
gotiate a Memorandum of Agreement
(MOA) containing proposed areas of
coordination and shared responsibil-
ities between the state and EPA and
separate EPA and state roles and re-
sponsibilities in areas including, but
not limited to: Implementation of par-
tial state programs; enforcement; com-
pliance monitoring; EPA oversight;
and sharing and reporting of informa-
tion. At the time of approval, the
MOA. must be signed by the Regional
Administrator and the appropriate of-
ficial of the state lead agency.
8 281.25 Attorney General's statement.
(a) A state must submit a written
demonstration from the Attorney
Oeneral that the laws and regulations
of the state provide adequate author-
ity to carry out the program described
under $ 281.21 and to meet other re-
quirements of this part. This state-
ment may be signed by Independent
legal counsel for the state rather than
the Attorney General, provided that
such counsel has full authority to in-
dependently represent the state
Agency in court on all matters pertain-
ing to the state program. This state-
ment must include citations to the spe-
cific statutes, administrative regula-
tions, and where appropriate, judicial
decisions that demonstrate adequate
authority to regulate and enforce re-
quirements for UST systems. State
statutes and regulations cited by the
state Attorney General must be fully
effective when the program is ap-
proved.
(b) If a state currently has authority
over underground storage tank activi-
ties on Indian Lands, the statement
must contain an appropriate analysis
of the state's authority.
Note: The reporting requirements under
this section have been approved by the
Office of Management and Budget (OMB)
and have been assigned OMB Control
Number 2050-0067.
Subpart C—Criteria for No-Les>-
Stringent
§ 281.30 New UST system design, con-
struction, installation, and notification.
In order to be considered no less
stringent than the corresponding fed-
eral requirements for new UST system
design, construction, installation, and
notification, the state must have re-
quirements that ensure all new under-
ground storage tanks, and the at-
tached piping in contact with the
ground and used to convey the regu-
lated substance stored in the tank,
conform to the following:
(a) Be designed, constructed, and in-
stalled in a manner that will prevent
releases for their operating life due to
manufacturing defects, structural fail-
ure, or corrosion.
Note: Codes of practice developed by na-
tionally-recognized organizations and na-
tional Independent testing laboratories may
be used to demonstrate that the state pro-
gram requirements are no less stringent in
this area.
(b) Be provided with equipment to
prevent spills and tank overfills when
new tanks are installed or existing
tanks are upgraded, unless the tank
Environmental Protection Agency
§281.33
does not receive more than 25 gallons
at one time.
(c) All UST system owners and oper-
ators must notify the Implementing
state agency of the existence of any
new UST system using a form desig-
nated by the state agency.
8 281.31 Upgrading existing UST systems.
In order to be considered no less
stringent than the corresponding fed-
eral upgrading requirements, the state
must have requirements that ensure
existing UST systems will be replaced
or upgraded before December 22, 1998,
to prevent releases for their operating
life due to corrosion, and spills or over-
fills.
8 281.32 General operating requirements.
In order to be considered no less
stringent than the corresponding fed-
eral general operating requirements,
the state must have requirements that
ensure all new and existing UST sys-
tems conform to the following:
Ca) Prevent spills and overfills by en-
suring that the space in the tank is
sufficient to receive the volume to be
transferred and that the transfer oper-
ation is monitored constantly;
(b) Where equipped with cathodic
protection, be operated and main-
tained by a person with sufficient
training and experience in preventing
corrosion, and in a manner that en-
sures that no releases occur during the
operating life of the UST system;
Note: Codes of practice developed by na-
tionally-recognized organizations and na-
tional Independent testing laboratories may
be used to demonstrate the state program
requirements are no less stringent.
(c) Be made of or lined with materi-
als that are compatible with the sub-
stance stored;
(d) At the time of upgrade or repair,
be structurally sound and upgraded or
repaired in a manner that will prevent
releases due to structural failure or
corrosion during their operating lives;
(e) Have records of monitoring, test-
ing, repairs, and closure maintained
that are sufficient to demonstrate
recent facility compliance status,
except that records demonstrating
compliance with repair and upgrading
requirements must be maintained for
the remaining operating life of the fa-
cility. These records must be made
readily available when requested by
the implementing agency.
8 281.33 Release detection.
In order to be considered no less
stringent than the corresponding fed-
eral requirements for release detec-
tion. the state must have requirements
that at a minimum ensure all UST sys-
tems are provided with release detec-
tion that conforms to the following:
Ca) General methods. Release detec-
tion requirements for owners and op-
erators must consist of a method, or
combination of methods, that is:
(1) Capable of detecting a release of
the regulated substance from any por-
tion of the UST system that routinely
contains regulated substances—as ef-
fectively as any of the methods al-
lowed under the federal technical
standards—for as long as the UST
system Is in operation. In comparing
methods, the implementing agency
shall consider the size of release that
the method can detect and the speed
and reliability with which the release
can be detected.
(2) Designed, installed, calibrated,
operated and maintained so that re-
leases will be detected in accordance
with the capabilities of the method.
(b) Phase-in of requirements. Re-
lease detection requirements must, at
a minimum, be scheduled to be applied
at all UST systems:
(1) Immediately when a new UST
system is installed:
(2) On an orderly schedule that com-
pletes a phase-in of release detection
at all existing UST systems (or their
closure) before December 21, 1993,
except that release detection for the
piping attached to any existing UST
that conveys a regulated substance
under greater than atmospheric pres-
sure must be phased-in before Decem-
ber 22, 1990.
(c) Requirements for petroleum
tanks. All petroleum tanks must be
sampled, tested, or checked for re-
leases at least monthly, except that:
(1) New or upgraded tanks
-------
§281.34
40 CFR Ch. I (7-1-92 Edition)
inventory control (or its equivalent) in
combination with tightness testing (or
its equivalent) conducted every 5 years
for the first 10 years after the tank is
installed or upgraded or until Decem-
ber 22, 1998, whichever is later; and
(2) Existing tanks unprotected from
releases due to corrosion or without
spill and overfill prevention devices
may use monthly inventory control (or
its equivalent) in combination with
annual tightness testing (or its equiva-
lent) until December 22, 1998.
(d) Requirements for petroleum
piping. All underground piping at-
tached to the tank that routinely con-
veys petroleum must conform to the
following:
(1) If the petroleum is conveyed
under greater than atmospheric pres-
sure:
(1) The piping must be equipped
with release detection that detects a
release within an hour by restricting
or shutting off flow or sounding an
alarm; and
(ii) The piping must have monthly
monitoring applied or annual tight-
ness tests conducted.
(2) If suction lines are used:
(i) Tightness tests must be conduct-
ed at least once every 3 years, unless a
monthly method of detection is ap-
plied to this piping; or
(ii) The piping is designed to allow
the contents of the pipe to drain back
into the storage tank if the suction is
released and is also designed to allow
an inspector to immediately determine
the integrity of the piping system.
(e) Requirements for hazardous sub-
stance UST systems. All UST systems
storing hazardous substances must
meet the following:
(1) All existing hazardous substance
UST systems must comply with all the
requirements for petroleum UST sys-
tems in paragraphs (c) and (d) of this
section and after December 22, 1998,
they must comply with the following
paragraph (e)(2) of this section.
(2) All new hazardous substance
UST systems must use interstitial
monitoring within secondary contain-
ment of the tanks and the attached
underground piping that conveys the
regulated substance stored in the
tank, unless the owner and operator
can demonstrate to the state (or the
state otherwise determines) that an-
other method will detect a release of
the regulated substance as effectively
as other methods allowed under the
state program for petroleum UST sys-
tems and that effective corrective
action technology is available for the
hazardous substance being stored that
can be used to protect human health
and the environment.
§ 281.34 Release reporting, investigation,
and confirmation.
In order to be considered no less
stringent than the corresponding fed-
eral requirements for release report-
ing. investigation, and confirmation
the state must have requirements that
ensure all owners and operators con-
form with the following:
(a) Promptly investigate all suspect-
ed releases, including:
(1) When unusual operating condi-
tions, release detection signals and en-
vironmental conditions at the site sug-
gest a release of regulated substances
may have occurred; and
(2) When required by the imple-
menting agency to determine the
source of a release having an impact in
the surrounding area; and
(b) Promptly report all confirmed
underground releases and any spills
and overfills that are not contained
and cleaned up.
(c) Ensure that all owners and oper-
ators contain and clean up unreported
spills and overfills in a manner that
will protect human health and the en-
vironment.
§ 281.35 Release response and corrective
action.
In order to be considered no less
stringent than the corresponding fed-
eral requirements for release response
and corrective action, the state must
have requirements that ensure:
(a) All releases from UST systems
are promptly assessed and further re-
leases are stopped;
(b) Actions are taken to Identify,
contain and mitigate any immediate
health and safety threats that are
posed by a release (such activities in-
clude investigation, and initiation of
free product removal, if present);
Environmental Protection Agency
(c) All releases from UST systems
are investigated to determine if there
are impacts on soil and ground water,
and any nearby surface waters. The
extent of soil and ground water con-
tamination must be delineated when a
potential threat to human health and
the environment exists.
(d) All releases from UST systems
are cleaned up through soil and
ground water remediation and any
other steps, as necessary to protect
human health and the environment;
(e) Adequate information is made
available to the state to demonstrate
that corrective actions are taken in ac-
cordance with the requirements of
paragraphs (a) through (d) of this sec-
tion. This information must be submit-
ted in a timely manner that demon-
strates its technical adequacy to pro-
tect human health and the environ-
ment; and
(f) In accordance with § 280.67, the
state must notify the affected public
of all confirmed releases requiring a
plan for soil and ground water remedi-
ation, and upon request provide or
make available information to inform
the interested public of the nature of
the release and the corrective meas-
ures planned or taken.
8 281.36 Out-of-service UST systems and
closure.
In order to be considered no less
stringent than the corresponding fed-
eral requirements for temporarily
closed UST systems and permanent
closure, the state must have require-
ments that ensure UST systems con-
form with the following:
(a) Removal from service. All new
and existing UST systems temporarily
closed must:
(1) Continue to comply with general
operating requirements, release re-
porting and investigation, and release
response and corrective action;
(2) Continue to comply with release
detection requirements if regulated
substances are stored in the tank;
(3) Be closed off to outside access;
and
(4) Be permanently closed if the
UST system has not been protected
from corrosion and has not been used
in one year, unless the state approves
§281.37
an extension after the owner and oper-
ator conducts a site assessment.
(b) Permanent closure of UST sys-
tems. All tanks and piping must be
cleaned and permanently closed in a
manner that eliminates the potential
for safety hazards and any future re-
leases. The owner or operator must
notify the state of permanent UST
system closures. The site must also be
assessed to determine if there are any
present or were past releases, and if
so, release response and corrective
action requirements must be complied
with.
(c) All UST systems taken out of
service before the effective date of the
federal regulations must permanently
close in accordance with paragraph (b)
of this section when directed by the
implementing agency.
§ 281.37 Financial responsibility for UST
systems containing petroleum.
(a) In order to be considered no less
stringent than the federal require-
ments for financial responsibility for
UST systems containing petroleum,
the state requirements for financial
responsibility for petroleum UST sys-
tems must ensure that:
(1) Owners and operators have $1
million per occurrence for corrective
action and third-party claims in a
timely manner to protect human
health and the environment;
(2) Owners and operators not en-
gaged in petroleum production, refin-
ing, and marketing and who handle a
throughput of 10,000 gallons of petro-
leum per month or less have $500,000
per occurrence for corrective action
and third-party claims in a timely
manner to protect human health and
the environment;
(3) Owners and operators of 1 to 100
petroleum USTs must have an annual
aggregate of $1 million; and
(4) Owners and operators of 101 or
more petroleum USTs must have an
annual aggregate of $2 million.
(b) Phase-in of requirements. Finan-
cial responsibility requirements for pe-
troleum UST systems must, at a mini-
mum, be scheduled to be applied at all
UST systems on an orderly schedule
that completes a phase-in of the finan-
cial responsibility requirements within
-------
§281.40
40 CFR Ch. I (7-1-92 Edition)
the time allowed In the Federal regu-
lations under 40 CFR 280.91.
(c) States may allow the use of a
wide variety of financial assurance
mechanisms to meet this requirement.
Each financial mechanism must meet
the following criteria in order to be no
less stringent than the federal require-
ments. The mechanism must: Be valid
and enforceable; be issued by a provid-
er that Is qualified or licensed in the
state; not permit cancellation without
allowing the state to draw funds;
ensure that funds will only and direct-
ly be used for corrective action and
third party liability costs; and require
that the provider notify the owner or
operator of any circumstances that
would impair or suspend coverage.
(d) States must require owners and
operators to maintain records that
demonstrate compliance with the state
financial responsibility requirements,
and these records must be made read-
ily available when requested by the
implementing agency.
[53 FR 43382, Oct. 26. 1988; 53 FR 51274.
Dec. 21, 1988; 54 FR 38788, Sept. 20. 1989, as
amended at 55 FR 46025, Oct. 31, 1990]
§281.38 Financial responsibility for USTs
containing hazardous substances. [Re-
served]
Subpart D—Adequate Enforcement of
Compliance
§281.40 Requirements for compliance
monitoring program and authority.
(a) Any authorized representative of
the state engaged in compliance in-
spections, monitoring, and testing
must have authority to obtain by re-
quest any information from an owner
or operator with respect to the UST
system(s) that is necessary to deter-
mine compliance with the regulations.
(b) Any authorized representative of
the state must have authority to re-
quire an owner or operator to conduct
monitoring or testing.
(c) Authorized representatives must
have the authority to enter any site or
premises subject to UST system regu-
lations or in which records relevant to
the operation of the UST system(s)
are kept, and to copy these records,
obtain samples of regulated sub-
stances, and inspect or conduct the
monitoring or testing of UST
system(s).
(d) State programs must have proce-
dures for receipt, evaluation, reten-
tion, and investigation of records and
reports required of owners or opera-
tors and must provide for enforcement
of failure to submit these records and
reports.
(e)(1) State programs must have in-
spection procedures to determine, in-
dependent of information supplied by
regulated persons, compliance with
program requirements, and must pro-
vide for enforcement of failure to
comply with the program require-
ments. States must maintain a pro-
gram for systematic inspections of fa-
cilities subject to regulations in a
manner designed to determine compli-
ance or non-compliance, to verify accu-
racy of information submitted by
owners or operators of regulated
USTs, and to verify adequacy of meth-
ods used by owners or operators in de-
veloping that information.
(2) When inspections are conducted,
samples taken, or other information
gathered, these procedures must be
conducted in a manner (for example,
using proper "chain of custody" proce-
dures) that will produce evidence ad-
missible in an enforcement proceeding,
or in court.
(f) Public effort in reporting viola-
tions must be encouraged and the
state enforcement agency(ies) must
make available information on report-
ing procedures. State programs must
maintain a program for Investigating
information obtained from the public
about suspected violations of UST pro-
gram requirements.
(g) The state program must main-
tain the data collected through inspec-
tions and evaluation of records in such
a manner that the implementing
agency can monitor over time the com-
pliance status of the regulated com-
munity. Any compilation, index, or in-
ventory of such facilities and activities
shall be made available to EPA upon
request.
§281.41 Requirements for enforcement
authority.
(a) Any state agency administering a
program must have the authority to
1 A A O
Environmental Protection Agency
implement the following remedies for
violations of state program require-
ments:
(1) To restrain immediately and ef-
fectively any person by order or by
suit in state court from engaging in
any unauthorized activity that is en-
dangering or causing damage to public
health or the environment;
(2) To sue in courts of competent ju-
risdiction to enjoin any threatened or
continuing violation of any program
requirement;
(3) To assess or sue to recover in
court civil penalties as follows:
(i) Civil penalties for failure to
notify or for submitting false informa-
tion pursuant to tank notification re-
quirements must be capable of being
assessed up to $5,000 or more per vio-
lation.
(ii) Civil penalties for failure to
comply with any state requirements or
standards for existing or new tank sys-
tems must be capable of being assessed
for each instance of violation, up to
$5,000 or more for each tank for each
day of violation. If the violation is con-
tinuous, civil penalties shall be capable
of being assessed up to $5,000 or more
for each day of violation.
(b) The burden of proof and degree
of knowledge or intent required under
state law for establishing violations
under paragraph (a)(3) of this section,
must be no greater than the burden of
proof or degree of knowledge or intent
that EPA must provide when it brings
an action under Subtitle I of the Re-
source Conservation and Recovery
Act.
(c) A civil penalty assessed, sought,
or agreed upon by the state enforce-
ment agency(ies) under paragraph
(a)(3) of this section must be appropri-
ate to the violation.
6 281.42 Requirements for public partici-
pation.
Any state administering a program
must provide for public participation
In the state enforcement process by
providing any one of the following
three options:
(a) Authority that allows interven-
tion analogous to Federal Rule
24(a)(2), and assurance by the appro-
priate state enforcement agency that
it will not oppose intervention under
§ 281.43
the state analogue to Rule 24(a)(2) on
the ground that the applicant's inter-
est is adequately represented by the
State.
(b) Authority that allows interven-
tion as of right in any civil action to
obtain the remedies specified in
§ 281.41 by any citizen having an inter-
est that is or may be adversely affect-
ed; or
(c) Assurance by the appropriate
state agency that:
(1) It will provide notice and oppor-
tunity for public comment on all pro-
posed settlements of civil enforcement
actions (except where immediate
action is necessary to adequately pro-
tect human health and the environ-
ment);
(2) It will investigate and provide re-
sponses to citizen complaints about
violations; and
(3) It will not oppose citizen inter-
vention when permissive intervention
is allowed by statute, rule, or regula-
tion.
§ 281.43 Sharing of information.
(a) States with approved programs
must furnish EPA, upon request, any
information in state files obtained or
used in the administration of the state
program. This information includes:
(1) Any information submitted to
the state under a claim of confiden-
tiality. The state must submit that
claim to EPA when providing such in-
formation. Any information obtained
from a state and subject to a claim of
confidentiality will be treated in ac-
cordance with federal regulations in 40
CFR part 2; and
(2) Any information that is submit-
ted to the state without a claim of con-
fidentiality. EPA may make this infor-
mation available to the public without
further notice.
(b) EPA must furnish to states with
approved programs, upon request, any
information in EPA files that the state
needs to administer its approved state
program. Such information includes:
(1) Any Information that is submit-
ted to EPA without a claim of confi-
dentiality; and
(2) Any information submitted to
EPA under a claim of confidentiality,
-------
§ 281.50
40 CFR Ch. I (7-1-92 Edition)
subject to the conditions in 40 CFR
part 2.
Subpart E—Approval Procedures
§281.50 Approval procedures for state
programs.
(a) The following procedures are re-
quired for all applications, regardless
of whether the application is for a par-
tial or complete program, as defined in
§ 281.12, or for interim or final approv-
al in accordance with § 281.11.
(b) Before submitting an application
to EPA for approval of a state pro-
gram, the state must provide an oppor-
tunity for public notice and comment
in the development of its underground
storage tank program.
(c) When EPA receives a state pro-
gram application, EPA will examine
the application and notify the state
whether its application is complete, in
accordance with the application com-
ponents required in § 281.20. The 180-
day statutory review period begins
only after EPA has determined that a
complete application has been re-
ceived.
(d) The state and EPA may by
mutual agreement extend the review
period.
(e) After receipt of a complete pro-
gram application, the Administrator
will tentatively determine approval or
disapproval of the state program. EPA
shall issue public notice of the tenta-
tive determination in the Federal Reg-
ister; in enough of the largest news-
papers in the state to attract statewide
attention; and to persons on the state
agency mailing list and any other per-
sons who the agency has reason to be-
lieve are interested. Notice of the ten-
tative determination must also;
(1) Afford the public 30 days after
the notice to comment on the state's
ipplication and the Administrator's
tentative determination; and
(2) Include a general statement of
the areas of concern, if the Adminis-
trator indicates the state program may
not be approved; and
(3) Note the availability for inspec-
tion by the public of the state pro-
gram application; and
(4) Indicate that a public hearing
vill be held by EPA no earlier than 30
lays after notice of the tentative de-
termination unless insufficient public
interest is expressed, at which time
the Regional Administrator may-
cancel the public hearing.
(f) Within 180 days of receipt of a
complete state program application,
the Administrator must make a final
determination whether to approve the
state program after review of all
public comments. EPA will give notice
of its determination in the Federal
Register and codify the approved
state program. The notice must in-
clude a statement of the reasons for
this determination and a response to
significant comments received.
§ 281.51 Amendment required at end of in-
terim period.
(a) State programs that meet the re-
quirements of section 281.11(c) (1) and
(2) may be approved for 1 to 3 years
from September 23, 1988. States that
receive such interim approval must
adopt requirements that are no less
stringent than the corresponding fed-
eral requirements and standards
within the timeframes specified under
5 281.11(c)(3).
(b) By the end of the specified time
period, a state with interim approval
must submit to EPA an amendment to
its application that includes all modi-
fied and new requirements for any of
the elements containing less stringent
requirements. Such amended applica-
tions must also include a modified pro-
gram description, an Attorney Gener-
al's statement and a Memorandum of
Agreement that incorporate the
amended program requirements, and
copies of all applicable state statutes
and regulations.
(c) Upon receipt of the application
amendment, the Administrator shall
follow the same review and approval
procedures as required in § 281.50.
(d) If a state fails to submit an
amendment within the specified time-
frame, the interim approval of the
state program expires upon the appli-.
cable date established under.
§ 281.11(c), and the Subtitle I program
automatically reverts to EPA.
(e) If a state submits an amendment
to the program application within the
timeframe specified under
§ 281.11(c)(3) and the amendmant is
Environmental Protection Agency
disapproved after the end of the time
period, the interim approval of the
state program expires immediately
upon disapproval and the Subtitle I
program automatically reverts to EPA.
(f) If Interim approval of the state
program expires, EPA must notify the
regulated community and the public
of the re-establishment of the federal
program through a notice in the Fed-
eral Register.
8 281.52 Revision of approved state pro-
grams.
(a) Either EPA or the approved state
may initiate program revision. Pro-
gram revision may be necessary when
the controlling federal or state statu-
tory or regulatory authority is
changed or when responsibility for the
state program is shifted to a new
agency or agencies. The state must
inform EPA of any proposed modifica-
tions to its basic statutory or regula-
tory authority or change in division of
responsibility among state agencies.
EPA will determine in each case
whether a revision of the approved
program is required.
(b) Whenever the Administrator has
reason to believe that circumstances
have changed with respect to an ap-
proved state program or the federal
program, the Administrator may re-
quest, and the state must provide, a re-
vised application as prescribed by
EPA.
(c) The Administrator will approve
or disapprove program revisions based
on the requirements of this part and
of subtitle I pursuant to the proce-
dures under this section, or under sec-
tion 281.50 if EPA has reason to be-
lieve the proposed revision will receive
significant negative comment from the
public.
(1) The Administrator must issue
public notice of planned approval or
disapproval of a state program revi-
sion in the Federal Register; in
enough of the largest newspapers in
the state to attract statewide atten-
tion: and by mailing to persons on the
state agency maflfng list and to any
other persons who the agency ha*
reason to believe are interested. The
public notice must summarize the
state program revision, indicate
whether EPA intends to approve or
§ 281.60
disapprove the revision, and provide
for an opportunity to comment for a
period of 30 days.
(2) The Administrator's decision on
the proposed revision becomes effec-
tive 60 days after the date of publica-
tion in the Federal Register in ac-
cordance with paragraph (c)(1) of this
section, unless significant negative
comment opposing the proposed revi-
sion Is received during the comment
period. If significant negative com-
ment is received, EPA must notify the
state and within 60 days after the date
of publication, publish in the Federal
Register either;
(i) A withdrawal of the immediate
final decision, which will then be
treated as a tentative decision in ac-
cordance with the applicable proce-
dures of § 281.50 (e) and (f); or
(ii) A notice that contains a response
to significant negative comments and
affirms either that the immediate
final decision takes effect or reverses
the decision.
(d) Revised state programs that re-
ceive approval must be codified in the
Federal Register.
Subpart F—Withdrawal of Approval
of State Programs
8 281.60 Criteria for withdrawal of ap-
proval of state programs.
(a) The Administrator may with-
draw program approval when the
Agency determines that a state no
longer has adequate regulatory or
statutory authority or is not adminis-
tering and enforcing an approved pro-
gram in accordance with this part.
The state must have adequate capabil-
ity to administer and enforce the state
program. In evaluating whether such
capability exists, the Agency will con-
sider whether the state is implement-
ing an adequate enforcement program
by evaluating the quality of compli-
ance monitoring and enforcement ac-
tions.
(b) Such withdrawal at approval win
occur only after the state fails to taJce
appropriate action within a reasonable
time, not to exceed 120 days after
notice from the Administrator that
the state is not administering and en-
-------
§281.61
40 CFR Ch. I (7-1-92 Edition)
forcing its program in accordance with
the requirements of this part.
§281.61 Procedures for withdrawal of ap-
proval of state programs.
(a) The following procedures apply
when a state with an approved pro-
gram voluntarily transfers to EPA
those- program responsibilities re-
quired by federal law.
(1) The state must give EPA notice
of the proposed transfer, and submit,
at least 90 days before the transfer, a
plan for the orderly transfer of all rel-
evant program Information necessary
for EPA to administer the program.
(2) Within 30 days of receiving the
state's transfer plan, EPA must evalu-
ate the plan and identify any addition-
al information needed by the federal
government for program administra-
tion.
(3) At least 30 days before the trans-
fer is to occur, EPA must publish
notice of the transfer in the Federal
Register; in enough of the largest
newspapers in the state to attract
statewide attention; and to persons on
appropriate state mailing lists.
(b) When EPA begins proceedings to
determine whether to withdraw ap-
proval of a state program (either on its
own initiative or in response to a peti-
tion from an interested person), with-
drawal proceedings must be conducted
in accordance with procedures set out
in 40 CFR 271.23 (b) and (c). except
for § 271.23(b)(8)(iii) to the extent
that it deviates from requirements
under § 281.60.
PARTS 282—299 [RESERVED]
FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and an alpha
betical list of agencies publishing In the CFR are included in the CFR Index ant
Finding Aids volume to the Code of Federal Regulations which is published sep
arately and revised annually.
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
-------
Material Approved for Incorporation by Reference
(Revitad at of July 1, 1992)
The Director of the Federal Register has approved under 5 U.S.C. 552(a) and 1
CFR Part 51 the incorporation by reference of the following publications. This
list contains only those incorporations by reference effective as of the revision
date of this volume. Incorporations by reference found within a regulation are
effective upon the effective date of that regulation. For more information on
incorporation by reference, see the preliminary pages of this volume.
40 CFR CHAPTER 1 (PARTS 260, 261, 264, 265, 268. AND 270): SUBCHAPTER 1-SOLID
WASTES
ENVIRONMENTAL PROTECTION AGENCY
40 CFR
American Society for Testing Materials
1916 Race St.. Philadelphia, PA 19103
ASTM D 93-80 Flash Point by Pennsky-Martens Closed Tester
ASTM D 1946-82 Standard Method for Analysis of Reformed Gas by
Gas Chromatography.
ASTM D 2382-83 Standard Test Method for Heat of Combustion of
Hydrocarbon Fuels by Bomb Calorimeter (High-Precision Method).
ASTM D 3278-78 Flash Point for Liquids by Setaflash Closed Tester
Environmental Protection Agency
Office of Solid Waste and Emergency Response, Waste Character-
ization Branch, Washington, DC 20460
Air Pollution Training Institute Course 415: Control of Gaseous Emis-
sions, EPA Publication 450/2-81-005, December 1981.
Screening Procedures for Estimating the Air Quality Impact of Station-
ary Sources, August 1988, EPA-450/4-88-010. Made available from
the National Technical Information Service, 5285 Port Royal Road,
Springfield, VA 22161. (703) 487-4600.
Test Methods for the Evaluation of Solid Waste, Physical/Chemical
Methods, 2nd Edition, 1982 (EPA publication SW-846), as amended
by Update 1 (April, 1984) and Update II (April, 1985). The second
edition of SW-846 and Updates I and II are available from the
National Technical Information Service. 5285 Port Royal Road,
Springfield, VA 22161, (703) 487^1600, as document no. PB 87-120-
291.
47 analytical testing methods contained in Test Methods for Evaluat-
ing Solid Waste, Physical/Chemical Methods (SW-846), 3rd Edition.
November 1986 and Revision I, December 1987. The Third Edition of
SW-846 and Revision I are available from the Government Printing
Office, Superintendent of Documents, Washington, DC 20402, (202)
783-3238, as document number 955-001-00000-1.
Method 9095 (Paint Filter Liquids Test
261.21(a)(1)
260.11(a):
264.1033(e)(2): ;ind
265.1033(e)(2)
260.11(a):
264.1033(e)(2): and
265.1033(e)(2)
261.21(a)(1)
260.11(a);
264.1035(b)(4)(iii);
265.1035(b)(4)(iii);
270.24(d)(3); and
270.25(e)(3)
260.11(a)
260.11(a); 261.22(a)(1)
and (2); Part 261,
Appendices II and
III; 270.6(a)
260.11(a); Appendix
III
268.32(i)
-------
Title 40—Protection of Environment
40 CFR CHAPTER I (PARTS 260, 261, 284, 265, 268, AND 270): SUBCHAPTER I-SOLID
WASTES—Continued
ENVIRONMENTAL PROTECTION AGENCY—Continued
40 CFR
National Fire Protection Association
Batterymarch Park, Quincy, MA 02269
Flammable and Combustible Liquids Code, 1981 264.198(b); 265.198(b)
40 CFR CHAPTER 1 (PART 272): APPROVED STATE HAZARDOUS WASTE
MANAGEMENT PROGRAMS
ENVIRONMENTAL PROTECTION AGENCY
State Statutes and Regulations
Delaware: (1) 7 Delaware Code Annotated sections 6301-6307 and 272.401
6310-6317 (Replacement Volume 1983): (2) Delaware Department of
Natural Resources and Environmental Control regulations governing
hazardous waste parts 260-265,122, 124 and Order Number 83-SW-
1, July 28, 1983.
Idaho: Chapter 44, Hazardous Waste Management, Section 39 of the 272.651(a)
Idaho Code (I.C.), General Laws of Idaho Annotated, Volume 7A,
published May 1985 by the Michie Company of Charlottesville,
Virginia, subsections: 39-4401: 39-4402: 39-4406: 39-4407; 39-4412;
39-4416; 39-4417; 39-4418; 39-4419; 39-4420; 39-4421; 39-4422; 39-
4427; 39-4428; 39-4429; 39-4430; 39-4431; 39-4432; and as contained
in the 1988 Cumulative Pockel Supplement, J.C.. Volume 7A. pub-
lished June 1988, subsections: 39-4403; 39-4404; 39-4405; 39-4408; 39-
4409; 39-4410(3); 39-^411; 39-4417B; 39-4423; and 39-4426.
Idaho: Idaho Department of Health and Welfare Rules and Regula- 272.651(a)
lions, Title 1, Chapter 5, Rules, Regulations and Standards for
Hazardous Waste in effect as of June 10. 1988, sections: 16.01.5000;
16.01.5001; 10.01.5002; 16.01.5003; 16.01.5004; 16.01.5005; 16.01.5006. 01,
02; 16.01.5007; 16.01.5008: 16.01.5009; 16.01.5010, 01, 02; 16.01.5011;
16.01.5012; 10.01.5013; 16.01.5356. 01. 02, 03, 04, 05; and Appendix A.
Illinois: (1) Illinois Administrative Code. Title 35, Part 702, sections 272.701(a)
702.101—702.104; 702.110—702.187; Part 703, sections 703.100—
703.246; Part 709, sections 709.102—709.003; part 720. sections
720.101—720.122. Appendix A; Part 721, sections 721.101—721.133.
Appendices A. B, C. G. H. 1, J. Z; Part 722, sections 722.110—722.151;
Part 723, sections 723.110—723.131; Part 724, sections 724.101—
724.451, Appendices A. D, E; Part 726, sections 726.120—726.180; and
Part 729. sections 729.100—729.321; (January 1, 1985, as amended
January 1, 1986 and January 1, 1987); (2) Illinois Revised Statutes.
Chapter 111 1/2, section 1003.53, section 1020(a), (b), and section
1022.4 (as amended, effective August 25,1986).
Indiana: Indiana Administrative Code, Title 320, Articles 4.1-1-3 272.751(a)
through 4.1-37-4, 4.1-37-6 through 4.1-39-12. and 4.1-40-1 through
4.1-54-8 (1987 Cumulative Supplement, Volume 2, as supplemented
by the Indiana Register, Volume 10, Number 8. pages 1563—1690.
May 1,1987).
Material Approved for Incorporation by Reference
40 CFR CHAPTER 1 (PART 272): APPROVED STATE HAZARDOUS WASTE
MANAGEMENT PROGRAMS—Continued
ENVIRONMENTAL PROTECTION AGENCY—Continued
Michigan: (1) Michigan Compiled Laws Annotated. Sections 299.501- 272.1151(a)
506, 299.521-522, 299.532-535, 299.537. and 299.539-541 (P.A. 64 of
1979 as amended by P.A. 486 of 1982, effective March 30, 1983): (2)
Michigan Administrative Code " Rules 299.9101-9206(3)(g),
299.9206(4)-9208(l), 299.9208(3)-9209(l). 9209(4)-9209(6). 299.9210(2)-
9211(1 )(a), 299.9211(l)(c)-9212(4). 299.9212(6)-9212(7). 299.9212(8)(bj-
9213(1 )(a), 299.9213(l)[c), 299.9213(2)-9214(6)(b), 299.9215-9217,
299.9220, 299.9222, 299.9224-9225, 299.9301-9304(l)(b), 299.9304(1 )(d)-
299.9401(5), 299.9402, 299.9404(1) introductory text, 299.9404(1 )(bj-
9405. 299.9407-9408(1). 299.9409-9410, 288.9501-299.9504(1) introduc-
tory text, 299.9504(1 )(b)-9506. 299.9508-9508(1 )(g). 299.9508(l)(i)-
9521 (l)(b), 299.9521(2)-9522. 299.9601-9Sll(2)(a). 299.9611(3)-
9623(1 )(b), 299.9623(3)-9710,299.9801-9804. 299.11001-11008 (19B5
Annual Michigan Administrative Code Supplement, as supplement-
ed by the April 1988 Michigan Register, pages 3-107, and the January
1989 Michigan Register, pages 1-27).
Minnesota: (1) Minnesota Statutes, Chapters 13.03; 13.05 subdivision 9; 272.1201(a)
13.08; 13.37,15.17,15.171; 115.061; 115A.03; 116.06; 116.07 subdivisions
4, 4a, 4b. 5, and 8; 116.075; 116.081 subdivisions 1 and 3; and 116.14
(1988); (2) Minnesota Rules. 7001.0010; 701.0020(B]; 7001.0030—
7001.0150(3)(C); 7001.0150(3)(E)—7001.0200; 7001.0500—7001.0730(2);
7001.0730(4); 7045.0020—7045.0080; 7045.0120—7045.0143: 7045.0205—
7045.0270(6); 7045.0275—7045.0508; 7045.0516—7045.0685 (March 0,
1989).
Missouri: (1) Missouri Revised Statutes. Chapter 260, sections 260.350- 272.1301(a)
260.360(11), 260.360(13)—260.360(18), 260.380-1—260.380-1.(9],
260.380-2—260.385 (un-numbered first paragraph), 260.385(2)—
260.390(7), 260.390(9), 260.395-6—260.395-7.(4), 260.395-7.(7)—
260.395-18, (1986); (2) Missouri Code of State Regulations, Title 10.
Division 25, sections 3.260—3.260(1](A)19., 3.260(1 )(A)21.—
3.260(1](A)22., 3.260(2), 4.261—4.201(2](A)4., 4.201(2)(D)3, 5.262—
5.262(2)(B)1., 5.262(2)(B)3.—5.262(2)(F). 6.263—6.263(2)(A)2,
6.263(2)(A)5.—6.263(2)(D), 7.264—7.264(2)(0)3„ 7.264(2)(Q). 7.265,
7.266—7.268(2)(D). 7.266(2)(D)2, 7.270—7.270(2)(B)6., 7.270(2)(B)9.—
7.270(2)(B)13„ 7,270(2)(C)—7.270(2)(C)1.A. The un-numbered first
sentence before the phrase "upon payment of a fee ... the first
year."), 7.270(2)(C)1.A. (The un-numbered second sentence)—
2.270. (2)(C )1 -C., 7.270(2)(C)2.—7.270(2)2.E.. 7.270(2)(D)—7.270(2)(G)
(as effective August 1.1987)..
Montana: (1) Montana Hazardous Waste Act, Montana Code Anno- 272.1351
tated sections 75-10-401 through 75-10-413 and 75-10-419 through
75-10-421 (1983); (2) Administrative Rules of Montana, Health and
Environmental Sciences, sections 10.44.101 through 16.44.911 (1983)
and the amendments to sections 16.44.104.106, 108, 109, 202, 811. 817
and 819 adopted on January 16.1984.
-------
Title 40—Protection of Environment
40 CFR CHAPTER I (PART 272): APPROVED STATE HAZARDOUS WASTE
MANAGEMENT PROGRAMS—Continued
ENVIRONMENTAL PROTECTION AGENCY—Continued
Ohio: (1) Ohio Administrative Code, Volume 4, Chapter 3745 Rules: 49- 272.1601(a)(1)
031: 50-01; 50-03; 50-10; 50-11; 50-31 through 50-32; 50-10 through
50—44(C)(3)(j); 50-44(C)(4) through 50—44(C)(4)(k); 50-44(C)(5) through
50-44(C)(5)(i); 50-44(C)(6) through 50-44CC){7)(j): 50—44(C)(8) through
51-03(C)(2)(b)(ii): 51-03(D) and (E); 51-04 through 51-05: 51-06(A)(1)
through 51-06(A)(3)(g); 51-06(B) through 52-20(F) 52-20 Appendix 1
through 52-34(F); 52-40 through 52-44; 52-50 through 53-10; 53-ll(D)
through 53-20(H); 53-21 through 54-99; 55-02 through 55-99; 56-20
through 56-31; 5B-33(A) and (B); 56-50 through 56-60; 56-70 through
56-83; 57-01 through 57-14 (B); 57-14(E); 57-15 through 57-18; 57-40
through 58-40; 58-42; 58-43 through 58-44; 58-45(A) through 58-45(E);
58-45(G); 58-46; 58-50 through 58-54; 58-60 through 65-01(C); 65-
01(E): 65-10 through 6ft-14(C); 68-14(F); 68-15 through 68-52; 68-70
through 68-83; 68-011(A) through 68-011(E): 69-01 through 69-30;
(OAC June 30, 1990, as supplemented by 1990-1991 Ohio Monthly
Record, pages 70-80 (July, 1990)).
Wisconsin: (1) Wisconsin Administrative Code, Volume 12, Sections 272.2501(a)
NR: 181.01-181.02; 181.04-181.05; 181.08(3)-181.07; 181.09; 181.11-
181.12(3); 181.12(4)(b)-181.27; 181.31(2)-181.47; 181.49-181.54;
181.55(2); 181.55(4)-161.55(10); Appendix 1; and Appendix 2 (effective
April 1, 1988). (2) Wisconsin Statutes, Volume 3, Sections: 144.01;
144.43-433; 144.44 (except 144.44(4)(a)); 144.441 (1 )-(2); 144.441(3)(b),
(d). (f), and (g); 144.441(4)(a) and (c)-(g); 144.441 (5)(b)-(d); 144-441(6);
144.442(1) and (4)-(ll): 144.443; 144.444; 144.60-144.63, and; 144.64(2)
and (3) (except for 144.64(2)(e)(l)) (1985-86)..
Table of CFR Titles and Chapters
(Reviled at of June 12, 1992)
Title 1—General Provisions
I Administrative Committee of the Federal Register (Parts 1—49)
II Office of the Federal Register (Parts 50—299)
III Administrative Conference of the United States (Parts 300—
399)
IV Miscellaneous Agencies (Parts 400—500)
Title 2—[Reserved]
Title 3—The President
I Executive Office of the President (Parts 100—199)
Title 4—Accounts
I General Accounting Office (Parts 1—99)
II Federal Claims Collection Standards (General Accounting
Office—Department of Justice) (Parts 100—299)
Title 5—Administrative Personnel
I Office of Personnel Management (Parts 1—1199)
II Merit Systems Protection Board (Parts 1200—1299)
III Office of Management and Budget (Parts 1300—1399)
IV Advisory Committee on Federal Pay (Parts 1400—1499)
V The International Organizations Employees Loyalty Board
(Parts 1500—1599)
VI Federal Retirement Thrift Investment Board (Parts 1600—
1699)
VII Advisory Commission on Intergovernmental Relations (Parts
1700-1799)
VIII Office of Special Counsel (Parts 1800—1899)
IX Appalachian Regional Commission (Parts 1900—1999)
XI United States Soldiers' and Airmen's Home (Parts 2100—2199)
XIV Federal Labor Relations Authority, General Counsel of the
Federal Labor Relations Authority and Federal Service Im-
passes Panel (Parts 2400—2499)
XV Office of Administration. Executive Office of the President
(Parts 2500—259S)
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>
tr"
W
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* § 22-36-1 UNDERGROUND TANK AND WELLHEAD PROTECTION § 22-36-2
CHAPTER 36.
ALABAMA UNDERGROUND STORAGE TANK AND WELLHEAD
PROTECTION ACT.
Sec.
22-36-1. Short title.
22-36-2. Definitions.
22-36-3. Rules and regulations governing un-
derground storage tanks.
22-36-4. Information to be furnished by
owner upon request of depart-
ment; owner to permit access to
records and entry and inspection
of facilities.
22-36-5. Tank regulation fee.
22-36-6. Expenditure of funds from leaking
underground storage tank trust
fund; investigative and corrective
powers in regard to administra-
tion of funds; liability of owner or
operator for costs.
22-36-7. Rules and regulations to establish
and protect wellhead areas.
22-36-8. Availability to public of records, re-
ports, or information obtained un-
der chapter.
22-36-9. Penalties.
22-36-10. Rules and regulations.
§ 22-36-1. Short title.
This chapter may be cited as the "Alabama Underground Storage Tank and
Wellhead Protection Act of 1988." (Acts 1988, No. 88-537, p. 823, § 1.)
§ 22-36-2. Definitions.
>r the purposes of this chapter, unless otherwise indicated, the following
terms shall have the meanings respectively ascribed to them by this section:
(1) Commission. The Alabama environmental management commission.
(2) Department. The Alabama department of environmental manage-
ment.
(3) Director. The director of the Alabama department of environmental
management.
(4) Operator. Any person in control of, or having responsibility for, the
daily operation of an underground storage tank.
(5) Owner of an underground storage tank:
a. In the case of an underground storage tank in use on November 8,
1984 or brought into use after that date, any person who owns an
underground storage tank used for the storage, use, or dispensing of
regulated substances, and
b. In the case of any underground storage tank in use before November
8, 1984 but no longer in use on that date, the present owner of the tank
and any person who owned such tank immediately before the discontinua-
tion of its use.
(6) Person. Any natural person, any firm, association, partnership,
corporation, trust, the state and any agency of the state, governmental
entity, the United States and any agency of the United States, a
consortium, a joint venture, a commercial entity and any other legal entity.
^ Petroleum. Crude oil or any fraction thereof which is liquid at
*dard conditions of temperature and pressure (60 degrees Fahrenheit
and 14.7 pounds per square inch absolute).
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§ 22-36-2 HEALTH, MENTAL HEALTH AND ENVIRONMENTAL § 22-36-2
(8) Pollution. The presence or discharge of regulated substances in or on
the land or in the water of the state.
(9) Regulated substance:
a. Any substance identified as hazardous in section 101(14) of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (42 U.S.C. § 9601 through 9675). This shall not include any
substance regulated as a hazardous waste under the Alabama Hazardous
Wastes Management Act of 1978 as amended, sections 22-30-1 et seq. or
the regulations promulgated under such Act; and
b. Petroleum.
(10) Release. Any spilling, leaking, emitting, discharging, escaping,
leaching, or disposing from an underground storage tank into waters or
subsurface soils.
(11) Underground storage tank. Any one or combination of tanks
(including underground pipes connected thereto) used to contain an
accumulation of regulated substances, and the volume of which (including
the volume of the underground pipes connected thereto) is 10 percent or
more beneath the surface of the ground. Such term does not include any:
a. Farm or residential tank of 1,100 gallons or less capacity used for
storing motor fuel for noncommercial purposes;
b. Tank used for storing heating oil for consumptive use on the
premises where stored;
c. Septic tank;
d. Pipeline facility (including gathering lines) regulated under:
1. The Natural Gas Pipeline Safety chapter of 1968 (49 U.S.C. App.
1671 et seq.),
2. The Hazardous Liquid Pipeline Safety chapter of 1979 (49 U.S.C.
App. 2001 et seq.), or
3. State laws comparable to the provisions of law in subparagraph 1.
or 2. above;
e. Surface impoundment, pit, pond, or lagoon;
f. Stormwater or wastewater collection system;
g. Flow-through process tank;
h. Liquid trap or associated gathering lines directly related to oil or gas
production and gathering operations;
i. Storage tank situated in an underground area (such as a basement,
cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated
upon or above the surface of the floor;
j. Other tanks exempted by the administrator of the United States
Environmental Protection Agency; and
k. Piping connected to any of the above exemptions.
(12) Waters. All waters of any river, stream, watercourse, pond, lake,
coastal, ground or surface water, wholly or partially within the state,
natural or artificial. This does not include waters which are entirely
confined and retained completely upon the property of a single individual,
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§ 22-36-3
UNDERGROUND TANK AND WELLHEAD PROTECTION
§ 22-36-3
partnership or corporation unless such waters are used in interstate
commerce.
(13) Wellhead protection area. The surface and subsurface area
surrounding a water well or wellfield, supplying a public water system,
through which contaminants are reasonably likely to move toward and
reach such water well or well field. ("Acts 1988. No. 88-537, p. 823,, § 2.)
§ 22-36-3. Rules and regulations governing underground storage
tanks.
The department, acting through the commission, is authorized to promul-
gate rules and regulations governing underground storage tanks and is
authorized to seek the approval of the United States Environmental Protec-
tion Agency to operate the state underground storage tank program in lieu of
the federal program. In addition to specific authorities provided by this
chapter, the department is authorized, acting through the commission, to
adopt any rules
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§ 22-36-4 HEALTH, MENTAL HEALTH AND ENVIRONMENTAL § 22-36-4
(2) The department, acting through the commission, is authorized to
promulgate rules and regulations which:
a. Require the owner or operator of an underground storage tank which
the director determines has released a regulated substance to perform
investigations to determine the extent of pollution;
b. Require the temporary or permanent cessation of the operation of an
underground storage tank, modifications, and immediate removal or
control of any regulated substance that is found to be causing pollution
when such cessation, removal or control is determined to be required by
the director;
c. Require the owner or operator responsible for pollution to take
corrective action to protect human health and the environment and
maintain beneficial uses of affected waters.
d. Require the owner or operator responsible for polluting a drinking
water source beyond applicable drinking water standards or where no
established drinking water standard exists, such standard as the director
shall determine, to provide an alternate or temporary drinking water
source to any person deprived of drinking water;
e. Require any owner or operator of an underground storage tank
which has released any regulated substance and who has knowledge that
a release has occurred to make a timely report of the pollution or release
and any resulting corrective action to the department.
(3) The department, acting through the commission, is authorized to
promulgate rules and regulations requiring the owner or operator of an
underground storage tank to maintain evidence of financial responsibility
for taking corrective action, providing alternate or temporary drinking
water, and compensating third parties for bodily injury and property
damages resulting from groundwater pollution caused by the operation of
an underground storage tank only when such a requirement is mandatory
for delegation of authority to the department to manage a federal
regulatory program and only to the extent required for delegation of that
federal regulatory program. (Acts 1988, No. 88-537, 5. 823, § 3.)
Code commissioner's note. — Acts 1988, adopted in accordance with applicable Btate
Act No. 88-537, §11, provides: "Rules and and federal laws."
regulations pertaining to this act shall be
§ 22-36-4. Information to be furnished by owner upon request of
department; owner to permit access to records and entry
and inspection of facilities.
For the purposes of determining compliance with regulations or detecting
pollution, any owner or operator of an underground storage tank shall upon
request of a duly authorized representative of the department:
(1) Furnish engineering, technical, and other information relative to
such underground storage tank and installation;
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§ 22-36-5 UNDERGROUND TANK AND WELLHEAD PROTECTION § 22-36-6
(2) Furnish information describing regulated substances stored in an
underground storage tank;
(3) Permit the representative, at all reasonable times, access to all
records concerning the storage of regulated substances and permit the
representative to copy said records; and
(4) Permit the representative to enter, at all reasonable times, property
and buildings where an underground storage tank is located and allow the
representative to inspect facilities and equipment and to conduct monitor-
ing and sampling. (Acts 1988, No. 88-537, p. 823, § 4.)
§ 22-36-5. Tank regulation fee.
To provide revenue for regulation, the department shall, beginning October
1,1988, collect a tank regulation fee of not less than $15.00 and not more than
$30.00 per regulated tank per year. This fee shall be collected in lieu of a
permit or certification fee as provided by section 22-22A-5. (Acts 1988. No.
88-537, p. 823, § 5.)
§ 22-36-6. Expenditure of funds from leaking underground storage
tank trust fund; investigative and corrective powers in
regard to administration of funds; liability of owner or
operator for costs.
(a) The department shall be authorized to administer the expenditure of
any funds made available from the leaking underground storage tank trust
fund established by the Superfund Amendments and Reauthorization Act of
1986.
(b) To enable the department to administer the leaking underground
storage tank trust fund, or state fund, where applicable, the department:
(1) Shall have authority to take investigative and corrective action with
respect to releases of petroleum from underground storage tanks;
(2) Shall have the authority to expend any state funds which may be
made available for investigative and corrective action or federal funds
which are authorized for state use under 42 U.S.C. § 6991b.(h) for
investigative or corrective action involving releases of petroleum from
underground storage tanks. Prior to expenditure of funds, except when a
delayed response will result in an imminent and substantial endangerment
to human health or the environment, the department shall attempt to
locate the person responsible for the release and shall attempt to require the
responsible person, if the responsible person is solvent, to perform the
investigation and to take corrective action. If no responsible person can be
found within 90 days or such shorter period as may be necessary to protect
human health and the environment, the department may proceed with
expenditure of federal funds for investigative and corrective actions.
(3) Is authorized to enter private property for the purpose of taking
investigative and corrective action with respect to releases of petroleum
from underground storage tanks; and
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§ 22-36-7 HEALTH, MENTAL HEALTH AND ENVIRONMENTAL § 22-36-8
(4) May authorize persons, who have been awarded contracts by the
department to take investigative and corrective actions with respect to
releases of petroleum from underground storage tanks, to enter private
property for the purpose of taking investigative and corrective action,
(c) Whenever costs have been incurred by the department for taking
corrective action or enforcement action with respect to the release of
petroleum from an underground storage tank, the owner or operator of the
underground storage tank shall be liable to the department for such costs. The
department shall seek recovery of any federal funds expended only to the
extent required by the federal law and regulations providing the funds and
shall seek recovery of state funds expended unless recovery of these funds
were not intended by the funding authority. (Acts 1988, No. 88-537, p. 823,
§ 6.)
U.S. Code. — The Superfund Amendments
and Reauthorization Act of 1986 is codified as
42 U.S.C.A. §§ 9671 to 9675.
§ 22-36-7. Rules and regulations to establish and protect wellhead
areas.
The department, acting through the commission, is authorized to promul-
gate rules and regulations to establish and protect wellhead areas, associated
with public water supply systems, from contaminants which may have any
adverse effect on the health of persons. The development and implementation
of rules and regulations shall be in accordance with the United States
Environmental Protection Agency guidelines, policies, and regulations rela-
tive to wellhead protection areas and shall not be more stringent than the
United States Environmental Protection Agency program. (Acts 1988, No.
88-537, p. 823, § 7.)
Code commissioner's note. — Acts 1988, adopted in accordance with applicable state
Act No. 88-537, § 11, provides: "Rules and and federal laws."
regulations pertaining to this act shall be
§ 22-36-8. Availability to public of records, reports, or information
obtained under chapter.
Any records, reports, or information obtained under this chapter shall be
available to the public; except that upon a showing satisfactory to the
department by any person that records, reports or information, or a particular
part thereof to which the department has access under this section if made
public, would divulge production or sales figures or methods, processes or
production unique to such person or would otherwise tend to affect adversely
the competitive position of such person by revealing trade secrets, the
department shall consider such record, report, or information or particular
portion thereof, confidential. Nothing in this section shall be construed to
prevent disclosures of such report, record, or information to federal or state
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§ 22-36-9 UNDERGROUND TANK AND WELLHEAD PROTECTION § 22-36-10
epresentatives as necessary for purposes of administration of any federal or
state laws or when relevant to proceedings under this chapter. Information
concerning the presence or concentration of substances in waters shall not be
considered confidential by the department. (Acts 1988, No. 88-537, p. 823,
§ 8.)
§ 22-36-9. Penalties.
(a) Any person who willfully violates any provision of this chapter, or rule,
regulation or standard adopted under this chapter, shall be punished by a fine
of no more than $25,000.00 per day of violation or by imprisonment for not
more than one year, or by both. If the conviction is for a violation committed
after a first conviction of such person under this subsection, punishment shall
be by a fine of no more than $50,000.00 per day of violation or by
imprisonment for not more than two years, or by both.
(b) Any person who knowingly makes any false statement, representation
or certification in any application record, report, plan or other document filed
or required to be filed, or required to be maintained under this chapter, or who
falsifies, tampers with or knowingly renders inaccurate any monitoring
device or method required to be maintained under this chapter shall, upon
conviction, be punished by a fine of not more than $10,000.00 or by
imprisonment for not more than six months, or by both. (Acts 1988, No.
537, p. 823, § 10.)
§ 22-36-10. Rules and regulations.
Rules and regulations pertaining to this chapter shall be adopted in
accordance with applicable state and federal laws. (Acts 1988, No. 88-537, p.
823, § 11.)
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Rep. Campbell
H. 739
Enrolled, An Act,
Amends ~22-35-l et seq. Code of Alabama 1975 to
authorize the assessment of an Underground and Aboveground
Storage Tank Trust Fund Charge; and to direct the Underground
and Aboveground Storage Tank Trust Fund Charge to become the
primary funding mechanism for the Alabama Underground and
Aboveground Storage Tank Trust Fund; to provide coverage under
the Fund for certain aboveground motor fuels storage tanks;
and to clarify the benefits available under the fund for
third-party claims.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. -22-35-1. Legislative findings and
intent:
The legislature of the state of Alabama finds and
declares that certain lands of Alabama constitute unique and
delicately balanced resources; that the protection of these
resources is vital to the economy of this state; and that the
preservation of waters is a matter of the highest urgency and
priority as these waters provide a primary source of potable
water in this state; that such use can only be served
effectively by maintaining the quality of waters in as close
to a comparable previous condition as possible, taking into
account multiple use accommodations necessary to provide the
broadest possible promotion of public and private interests.
The legislature further finds that where
contamination of soils or waters has occurred, remedial
measures have often been delayed for long periods while
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H. 739
determinations as to liability and the extent of liability are*
made; that such delays result in the continuation and
intensification of the threat to the public health, safety,
and welfare, in greater damages to the environment, and in
significantly higher costs to contain and remove the
contamination; and that adequate financial resources must be
readily available to provide for the expeditious supply of
safe and reliable alternative sources of potable water to
affected persons and to provide a means for investigation and
clean-up at contamination sites without delay.
The legislature intends for this chapter to provide
evidence of financial responsibility for owners and operators
of underground and abovearound storage tanks under the
Resource Conservation and Recovery Act, subtitle I, the
Superfund Amendments and Reauthorization Act of 1986 and other
federal laws.
Section 2. ~22-35-2. Short title.
This chapter may be cited as the "Alabama
Underground and Abovearound Storage Tank Trust Fund Act."
Section 3. Section 22-35-3 Code of Alabama 1975 is
hereby amended as follows:
~22-35-3. Definitions.
For the purposes of this chapter, unless otherwise
indicated, the following terms shall have the meanings
respectively ascribed to them by this section:
(1) Commission. The Alabama Environmental
Management Commission.
(2) Department. The Alabama Department of
Environmental Management.
(3) Director. The Director of the Alabama
Department of Environmental Management.
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H. 739
(4) Waters. All waters of any river, stream, water-
course, pond, lake, coastal, ground, or surface waters wholly
or partially within the state, natural or artificial.
(5) Owners of an Underground or Abovearound Storage
Tank;
a. In the case of an underground storage tank in
use on November 8, 1984, or brought into use after that date,
or in the case of an aboveground storage tank in use on August
1. 1993. or brought into use after August 1. 1993. any person
who owns an underground or aboveground storage tank used for
the storage, use, or dispensing of motor fuels, and
b. In the case of an underground storage tank in
use before November 8, 1984, but no longer in use on that
date, or an abovearound storage tank in use before August 1.
1993. but no longer in use on that date, the present owner of
such tank used for storage, use or dispensing of motor fuels,
and any person who owned such tank immediately before the
discontinuation of its use.
c. For the purposes of this chapter, the person who
registers the underground or aboveground storage tank is, and
shall be considered the owner.
(6) Operator. . Any person in control of, or having
responsibility for, the daily operation of an underground ££
abovearound storage tank.
(7) Person. Any natural person, any firm,
association, partnership, corporation, trust, the State of
Alabama and any agency of the State of Alabama, governmental
entity, the United States and any ageney of the United States,
a consortium, a joint venture, a commercial entity and any
other legal entity.
(8) Release. Any spilling, leaking, emitting,
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H. 739
underground or abovearound storage tank into the waters of the-
state. ground water, surface water or subsurface soils.
(9) Motor Fuels. All grades of gasoline including
gasohol or any gasoline blend, number 1 diesel, number 2
diesel, kerosene and all aviation fuels.
(10) Underground Storage Tank. Any one or
combination of tanks (including pipes connected thereto) used
to contain an accumulation of motor fuels, and the volume of
which (including the volume of the underground pipes connected
thereto) is 10 percent or more beneath the surface of the
ground. Gueh term daes not inelude anyt
(11) Abovearound Storage Tank. Anv one or
combination of stationary tanks affixed permanently to the
around or other support structure (including pipes connected
thereto) used to contain an accumulation of motor fuels, the
volume of which (including pipes connected thereto) is greater
than 90 percent above the surface of the ground.
The terms Underground Storage Tank and AJooveground
Storage Tank do not include anv:
a. Farm or residential tank of 1,100 gallons or
less capacity used for storing motor fuel for noncommercial
purposes;
b. Tank used for storing heating oil for
consumptive use on the premises where stored;
c. Septic tank;
d. Pipeline facility (including gathering lines)
regulated under:
1. The Natural Gas Pipeline Safety Act of 1968,
2. The Hazardous Liquid Pipeline Safety Act of
1979, and
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H. 739
3. An intrastate pipeline facility regulated under
state laws comparable to the provisions of law in
subparagraphs 1. or 2. of this paragraph;
e. Surface impoundment, pit, pond, or lagoon;
f. Stormwater or wastewater collection system;
g. Flow-through process tank;
h. Liquid trap or associated gathering lines
directly related to oil or gas production and gathering
operations;
i. Storage tank situated in an underground area
(such as a basement, cellar, mineworking, drift, shaft, or
tunnel) if the storage tank is situated upon or above the
surface of the floor; and
j. Other underground storage tanks exempted by the
administrator of the federal Environmental Protection Agency.
k. Piping connected to any of the above exemptions.
1. Pipeline terminals, refinery terminals, rail and
barae terminals and tanks associated with each.
(ii 12.) Third Party Claim. Any civil action
brought or asserted by any person against any owner or
operator of any underground or aboveground storage tank who is
in substantial compliance as stated in this chapter for
damages to parson or property bodily iniurv or property damage
which damages are the direct result of the contamination of
waters by motor fuels released during an accidental release
arising from the operation of motor fuel underground or
aboveground storage tanks covered under this chapter.
(¦i-2- H) Response Action. Any activity, including
evaluation, planning, design, engineering, construction, and
ancillary services, which is carried out in response to any
discharge, release, or threatened release of motor fuels.
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(i9- 14.) Response Action Contractors. A person who
has been approved by the department who is carrying out any
response action, including a person retained or hired by such
person to provide services relating to a response action.
(i4- 15.) Substantial Compliance. An owner or
operator of an underground or abovearound storage tank has
registered that tank with the department, has timely paid the
annual fee, if anv. has made a good faith effort to comply
with the state and federal laws applicable to underground or
abovearound storage tanks, and the rules and regulations
adopted pursuant thereto, and shall have met the financial
responsibility requirements imposed by section 22-35-7, and
shall have promptly notified the director of any third party
claim or suit made against him.
"Bulk facility" means a facility, including
pipeline terminals, refinery terminals, motor fuel
distribution terminals, rail and barae terminals, and
associated tanks, connected or separate, from which motor
fuels are withdrawn from bulk and delivered into a cargo tank
or a barge used to transport these materials.
Ill) "Cargo tank" means an assembly that is used
for transporting, hauling, or delivering liquids and that
consists of a tank having one or more compartments mounted on
a wagon, truck, trailer, railcar or wheels.
(18) "Withdrawal from bulk" means the removal of a
motor fuel from a bulk facility storage tank directly into a
cargo tank to be transported to a location in this state.
Section 4. Section 22-35-4 Code of Alabama 1975 is
hereby amended as follows:
~22-35-4. Alabama underground and aboveground
storage tank trust fund created; credits to and charges
arrai not- -fnnrlf invosfiffat-inn. ®t- r. . . r>f water contamination
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H. 739
related to storage of motor fuels; liability of owner for
costs; indemnification limit as to third party claims.
There is hereby created the Alabama underground and
aboveoround storage tank trust fund, hereinafter referred to
as the "fund" to be administered by the secretary-treasurer of
the retirement systems of Alabama. This fund shall be used by
the department as a revolving fund for carrying out the
purposes of this chapter. To this fund shall be credited all
tank fee and underground and abovearound storage tank trust
fund charge revenues levied, collected and credited pursuant
to this chapter. Charges against the fund shall be made in
accordance with the provisions of this chapter.
(1) Whenever in the director's determination
incidents of soil or water contamination related to the
storage of motor fuels in underground storage tanks discovered
and reported to the department on or after October 1. 1988,
and in aboveground storage tanks discovered and reported to
the Department on or after August 1. 1993. may pose a threat
to the environment or the public health, safety or welfare,
and the owner or operator of the underground or aboveground
storage tank has been found to be in substantial compliance,
the department shall obligate moneys available in the fund to
provide for:
a. Investigation and assessment of contamination
sites;
b. The interim replacement and permanent
restoration of potable water supplies;
c. Rehabilitation of contamination sites, which may
consist of clean-up of affected soil and groundwater, using
cost effective alternatives that are technologically feasible
and reliable, and that provide adequate protection of the
nublic health, safetv and welfare and minimize environmental
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damage, in accordance with the site selection and clean-up
criteria established by the department, except that nothing
herein shall be construed to authorize the department to
obligate funds for payment of costs which may be associated
with, but are not integral to, site rehabilitation, such as
the cost for retrofitting or replacing underground and
aboveoround storage tanks. The moneys expended from the fund
for any of the above approved costs shall be spent only up to
such sum as will cause the Resource Conservation and Recovery
Act, subtitle I, the Superfund Amendments and Reauthorization
Act of 1986, and any other federal laws governing disbursement
of federal funds for clean up and/or third party claims to
come into effect. Monies expended from the Fund as a result
of a release from abovearound tanks shall not exceed one
million dollars ($1,000.000.00) less the applicable
deductible.
(2) Whenever costs have been incurred by the
department for taking response action or enforcement action
with respect to the release of motor fuels from an underground
or abovearound storage tank, or the department has expended
funds from the fund created by this chapter, the owner of the
underground storage tank shall be liable to the department for
such costs if such release was discovered or reported prior to
October 1. 1988. and the owner of the abovearound storage tank
shall be liable to the Department for such costs if such
release was discovered or reported prior to August 1. 1993. or
if such owner or operator was not in substantial compliance on
the date of discharge discovery of the release of motor fuels
which necessitates the cleanup?- or such owner or operator
fails to maintain substantial compliance thereafter; otherwise
liability is limited to the provisions contained in section
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H. 739
(3) The indemnification limit of the fund with
respect to satisfaction of third party claims shall be that
whieh ia^neeeaaary to satisfy underground or aboveground
storage tank owner financial reaponaibility requirements of
subtitle—I of the Reaouree Conservation and Recovery Act,—U.0.
Code, the following amounts:
a. For owners or operators of motor fuels
underground storage tanks that are located at petroleum
marketing facilities, or that handle an average of more than
10.000 gallons of motor fuels per month based on annual
throughput for the previous calendar year; $1 million per
occurrence.
k. For all other owners or operators of motor fuels
underground and abovearound storage tanks: $500.000 per
occurrence;
c. For owners or operators of 1 to 100 motor fuels
underground and aboveground storage tanks. $1 million annual
aggregate; and
d. For owners or operators of 101 or more motor
fuels underground and aboveground storage tanks. $2 million
annual aggregate.
Section 5. Section 22-35-5 Code of Alabama 1975 is
hereby amended as follows:
~22-35-5. Owners to pay underground storage and
aboveground tank trust fund fee; special assessments when fund
depleted; failure to pay feei. levy and amount of underground
and aboveground storage tank trust fund charge; fees deposited
in fund; investment of fund; use of fund; procedure for
obtaining payments from fund; limits on liability for clean-up
costs; audit of fund.
(a) Every owner of an underground or aboveground,
stnraoe tank as rtpfinpri in t-his rhantpr shall oav an
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H. 739
underground and abovearound storage tank trust fund fee as
established by the provisions of this chapter to be paid to
the department. During the first year next following October
1988, the amount of the annual underground storage tank
trust fund fee shall be $100.00. Thereafter, the commission,
upon recommendation of the advisory board, shall set such an
amount not to exceed $150.00 per year per regulated tank.
Should the fund become depleted due to claims being greater
than amounts provided by tank fees, the commission shall be
empowered to make special assessments of tank fees to protect
the financial integrity of the fund. Provided the total tank
fees and special assessments for any fiscal year do not exceed
$150.00 per regulated tank. The failure to pay underground and
abovearound storage tank trust fund fees within the time
prescribed by the department shall make the owner or operator
of such underground or abovearound storage tank liable for a
late charge penalty in an amount not to exceed $100.00 per
tank for each day such payment is delinquent, subject to the
discretion of the director. The director, for good cause
shown, may abate all or part of said penalty.
b(l) An underground and abovearound storage tank
trust fund charge is imposed on the first withdrawal from
bulk. Each operator of a bulk facility from which a first
withdrawal from bulk is made shall, on the first withdrawal
from bulk, either retain or collect from the person who
ordered the fuel a fee in an amount determined as follows:
Aj Thirteen dollars and fifty cents ($13.50) for
each separate withdrawal from bulk, into a cargo tank, less
than or equal to 4500 gallons.
Twentv-seven dollars and no cents ($2 7.00) for each
separate withdrawal from bulk, into a cargo tank, of greater
A son 1 1 nno
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B. When a withdrawal from bulk occurs outside of
this state, where the motor fuel is to be imported into this
state, the importer of such motor fuel shall be responsible
for the collection and remittance of the applicable
underground and abovearound storage tank trust fund charge.
(2) Each operator of a bulk facility from which a
first withdrawal from bulk is made and importers of motor
fuels into the State of Alabama as identified in Section b(l)B
above, shall file an application with the Department of
Revenue for a permit to deliver motor fuel into a cargo tank
destined for delivery into storage tanks, regardless of
whether these tanks are exempted from the definition of
underground or aboveground storage tank hereinabove. All
applications shall be filed utilizing a form furnished bv the
Department Revenue. A permit issued under this Subsection
is valid on and after the date of its issuance and until the
permit is surrendered bv the holder or canceled bv the
Department of Revenue.
Ill All invoices or transaction statements issued
bv operators of bulk facilities for the transfer of motor
fuels into a cargo tank shall clearly indicate whether or not
the transaction was a withdrawal from bulk as defined herein.
lii Each operator of a bulk facility from which a
first withdrawal from bulk is made shall list, as a separate
line item on an invoice, the amount of the fees due under this
Section, and on or before the twentieth dav of the month
following the end of each calendar month, file a report with
the Department of Revenue and remit the amount of fees
reguired to be collected or paid during the preceding month.
Said reports shall be filed on a form furnished bv the
Department of Revenue. The Department of Revenue shall
i *. - »> ~- ¦rvo-t- »«¦ ¦ k 1 m immflriiatlev all
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underground and abovearound storage tank trust fund charge
revenues collected bv it-. less interest earned, for the month
then -mat ended.
(5) All invoices, reports, and anv other records
required under this Section as well as rules adopted bv the
department and the Department of Revenue pursuant to this
Section, or copies thereof, shall be retained for a period of
four years after the date on which the document is prepared.
The Department of Revenue shall have authority to audit the
records of all persons required to collect and remit the
underground and abovearound storage tank trust fund charge
established herein in order to ensure proper enforcement
tfreyeof.
(b£) The proceeds from the tank fees and
underground and abovearound storage tank trust fund charge
imposed by this chapter shall be deposited into the Alabama
underground and abovearound storage tank trust fund
established in section 22-35-4 until the unobligated balance
in the fund shall reach 10 million dollars ($10,000,000.00),
at which time the tank fee, if anv. and the underground and
abovearound storage tank trust fund charge shall abate until
such time as the unobligated fund balance shall be reduced to
seven and one-half million dollars ($7,500,000.00), at which
point the tank fee and the underground and abovearound storage
tank trust fund charge shall be imposed until such time as the
unobligated balance in the fund shall reach 10 million dollars
($10,000,000.00). The unobligated balance of the fund shall
be invested by the retirement systems of Alabama in its sole
discretion, for the benefit of the fund. At the end of any
fiaeal year in whieh the unobligated balanee of the fund falls
below $250,000.00,—the tank fee will be—set at 050.00 per tank
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H. 739
(ed) This fund shall be used for the purposes set
forth in this chapter only for releases discovered and
reported to the department on or after October 1. 1988. with
regard to underground storage tanks, and only for releases
discovered and reported to the Department on or after August
1. 1993 with regard to aboveground storage tanks. and for no
other governmental purposes, nor shall any portion hereof ever
be available to borrow from by any branch of government; it
being the intent of the legislature that this fund and its
increments shall remain intact and inviolate for the purposes
set out in this chapter. Any interest or earnings on the fund
shall be credited only to the fund.
(dfi) Moneys held in the fund established under the
chapter shall be disbursed for the following purposes:
(1) Payments shall be made to third parties who
bring suit against the director in his official capacity as
representative of the fund and the owner or operator of an
underground or aboveground motor fuel storage tank who is in
substantial compliance as stated in this chapter and such
third party obtains a final judgment in that action
enforceable in this state. The owner or operator above stated
shall pay the first $5,000.00 of said judgment and after that
payment has been made, the fund will pay the remainder of said
judgment. With respect to the owner or operator of an
aboveground motor fuel storage tank who is in substantial
compliance, said owner or operator shall oav th^ first $10.000
of said judgment and after that payment has hsen made, the
Fund will pav the remainder of said -judgment. The attorney
general of the state of Alabama is hereby responsible to
appear in said suit for and in behalf of the director as
representative of the fund and the director as representative
of the fund is a necessary party in any suit that is brought
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H. 739
by any third party which would allow that third party to
collect from this fund; and the director must be made a party
to the initial proceedings. The costs of defending these
suits by the attorney general or those assistants employed by
the department, or appointed by the attorney general to assist
shall be recovered from the fund. The costs of defending an
owner or operator who is in substantial compliance as stated
in this chapter against third-partv claims shall be recovered
from the fund pursuant to such guidelines and procedures and
sub-iect to such limits as the Alabama Underground and
Aboveground Storage Tank Trust Fund Advisory Board shall
provide. The amount of money in this fund, the method of
collecting the fund, nor any of the particulars involved in
setting up this fund shall be admissible in evidence in any
trial where suit is brought when the judgment rendered could
affect the fund.
(2) Payments as approved bv the department shall be
made in reasonable amounts to approved response action
contractors when vouchers are submitted to the
secretary-treasurer of the retirement system of Alabama from
the director requesting payment.
(«£) Payments from the fund may be obtained by
following this procedure:
Under subdivision (d£)(1) of this section by filing
an application with the department attaching the original or a
certified copy of the final judgment, together with proof of
payment of the first $5,000.00, or in connection with
judgments against owners or operators of aboveground tanks,
with proof of payment of the first $10.000.
(f) Nothing in this chapter shall establish or
create any liability or responsibility on the part of the
department or the state of Alabama to pay any clean-up costs
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or third party claims from any source than the fund created by*
this chapter, nor shall the department or the state of Alabama
have any liability or responsibility to make any payments for
clean-up costs or third party claims if the fund created
herein is insufficient to do so. In the event the fund is
insufficient to make the payments at the time the claim is
filed, such claims shall be paid in the order of filing at
such time as moneys are paid into the fund.
(g) The fund shall be audited annually by the
department of examiners of public accounts.
Section 6. Section 22-35-6 Code of Alabama 1975 is
hereby amended as follows:
-22-35-6. Alabama underground and abovearound
storage tank trust fund advisory board created; members;
meetings; duties.
There is hereby created an Alabama underground and
abovearound storage tank trust fund advisory board (the
"board") comprised of a representative from each of the
following organizations: (1) the Alabama Qilmen's
Association; (2) the Alabama Service Station Association; (3)
the Letroleum Equipment institute; (4) the Alabama department
of Environmental Management; and (5) the Alabama Petroleum
Council. Each representative, or the designee of such
representative, may attend meetings of the board, and each
such representative, or designee, shall have one vote
concerning any matter coming before the board. The board shall
elect its own chairman. The board shall meet at least twice
annually, and may meet at any other time upon 5 days' notice
from the director or any two of the board's other members.
The board will advise the commission and/or the department on
(1) issues involving implementation of the act; (2) reductions
" ¦ ' - - -i - - ^ » . . / \ uu . .i. _ r i.u . r...
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financial responsibility as required by federal law; (4)
examination of claims made and loss experience, including
recommendations to the commission for minimum levels of
financial responsibility for underground and abovearound
storage tank owners or operators under section 22-35-7; (5)
adjustments of the tank fee between 010.00 feo 0150.00; (6) the
necessity for, and contents of, rules and regulations issued
under the act, and similar matters; (7) the board shall
recommend standards for the qualification of response action
contractors as defined herein, and (8) such other advice as
the commission may request or the board mav desire to offer.
The board shall provide guidelines and procedures
and shall set limits for the recovery from the fund of costs
of defending an owner or operator who is in substantial
compliance as stated in this chapter aaainst third-partv
cJlflAms.
Section 7.
~22-35-7. Financial responsibility requirements for
taking response action.
(a) The financial responsibility requirements for
taking response action by underground motor fuel storage tank
owners or operators shall be set at $5,000.00 per occurrence^
and for abovearound tank owners or operators the financial
responsibility requirements shall be set at $10.000 per
occurrence. The commission may increase the clean-up and
third party damage liability per occurrence to owners or
operators when recommended by the advisory board.
(b) Financial responsibility may be established by
any one or combination of the following: insurance,
guarantee, surety bond, letter of credit or qualification as a
self-insurer. A person may qualify as a self-insurer by
.U rs r.trv K "5 ry f V>o am/Minf nf £9^.000.00.
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Section 8.
~22-35-8. Rehabilitation of contamination sites.
(a) The legislature finds that in order to provide
for the expeditious rehabilitation of contamination sites,
voluntary rehabilitation of contamination sites should be
encouraged, provided that such rehabilitation is conducted in
a manner and to a level of completion which will protect the
public health, safety, and welfare and will minimize damage to
the environment. To accomplish this purpose, the commission
shall promulgate rules and regulations for the approval and
compensation of response action contractors or through the use
of their own personnel. The state shall not be party to
contracts established between an owner or operator and a
response action contractor and nothing in this chapter shall
be construed as a state contract but to the contrary, it is
expressly manifest that these are not state contracts and are
expressly exempt from any competitive bid laws.
(b) Nothing in this chapter shall be deemed to
prohibit a person from conducting site rehabilitation through
approved response action contractors.
Section 9.
~22-35-9. Administration cost of chapter; annual
budgets for administration.
(a) Administration cost of all the provisions of
this chapter shall be charged to the fund. Annual budgets for
administration are to be included as part of the regular
department budget. Budget provisions for this activity shall
be the department's actual cost, not to exceed 0400,000.00 &£.
of total fees and charges collected annually or a maximum of
G000, OOOT-frfr $705.000.00 per year whichever is less, excluding
any legal expenses incurred by the department in discharging,
-n-s Hui-ies under the Drovisions of this chapter. In no event
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H. 739
shall the department's budget provisions for this activity in
anv given year be less than $400,000.00.
(b) As a first charge against: revenues collected
under the provisions of this act, to offset its initial costs
in administering such collections, there is hereby
appropriated to the Department of Revenue for the fiscal year
ending September 30. 1994 the sum of $150.000. The Department
of Revenue shall be appropriated for each fiscal year by the
legislature the amount of money necessary to pav its actual
costs in administering and enforcing this act, not to exceed
$150,000 per annum, which money shall be deducted, as a first
charge thereon, from the revenues collected under the
provisions of this act. After payment of the aforesaid
expenses, the balance of the revenues collected under the
provisions of this act shall be deposited as directed
elsewhere in this act. Should the trust fund charge abate as
provided in Section 5(c) hereinabove, the collection allowance
to the Department of Revenue shall abate as well, and such
allowance shall reinstate when the trust fund charge is
reimposed as provided in Section 5(c).
Section 10.
(a) -22-35-10. Rules and regulations.
Rules and regulations pertaining to this chapter
shall be adopted by the commission in accordance with
applicable state and federal laws. The commission shall not
adopt any rules or regulations pertaining to underground or
aboveground storage tanks under the provisions of this chapter
that are more stringent than those provided by federal rules
or regulations.
(fr) The department mav recruire the owner or
operator of an aboveground storage tank to provide to the
i nfnrmal-i rin mnforninn ("ha ahnwonrnnnH St.OTaoe tank
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which mav include, but is not limited to the name of the
owner, the name of the operator, the location, and description
of the facility at which the abovearound storage tank is
located, regulated substances and quantities of regulated
substances used or stored.
Section 11.
~22-35-ll. Notice to underground and aboveground
storage tank owners of provisions of chapter.
No later than 90 days after October 1, 1988, with
regard to underground storage tank owners and no later than 90
davs after August 1. 1993. with regard to aboveground storage
tank owners, the department shall notify underground afcouage
tank ownerssaid tank owners of the privileges of this chapter,
the required timely payment of fees, the deadlines for payment
thereof, and the manner in which late charges may be applied.
This notification shall be accomplished bv publication in
newspapers published at least once per week in each county of
the State. In the event a county does not have a newspaper
which is published at least once a week, the publication in a
newspaper published at least once a week in an adjoining
county shall be sufficient. Registration of aboveground
storage tanks as provided herein shall occur no later than
January 31. 1994.
Section 12.
~22-35-12. Liability of underground and aboveground
storage tank owners.
This chapter is to assist the underground and
aboveground storage tank owner to the extent provided for in
this chapter, but not to relieve the owner of any liability
that cannot be satisfied by the provisions of this chapter.
Section 13.
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H. 739
~22-35-13. No disbursements from fund until
adoption of rules and regulations governing disbursements.
Disbursements from the fund for the purpose of
paying clean-up costs or satisfying third party liability
claims shall not be made until rules and regulations
establishing administrative guidelines and procedures which
shall govern the manner in which disbursements are made are
effective. Rules and regulations establishing these
administrative procedures shall be effective no later than
June 1, 1989. Rules and regulations establishing these
administrative procedures for aboveground storage tanks shall
be effective no later than April 1. 1994.
Section 14.
The provisions of this Act are severable. If any
part of the Act is declared invalid or unconstitutional, the
remainder of this Act shall be null and void except for the
provisions regarding third party liability set forth in
Section 4(3) hereinabove.
Section 15.
This act shall become effective August 1. 1993.
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H. 739
Speaker of the House of Representatives
President and Presiding Officer of the Senate
House of Representatives
I hereby certify that the within Act originated in and was
passed by the House April 20, 1993, as amended. The House
concurred in the Senate Amendment April 2 9, 1993, and the Act
was passed again as amended by Executive Amendment May 6,
1993.
Yeas 90 Nays 0
Greg Pappas
Clerk
Senate April 29, 1993 Amended & Passed
Senate May 6, 1993 Passed
as amended by
Executive Amendment
Yeas 26 Nays 1
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ALABAMA
DEPARTMENT
OF
ENVIRONMENTAL
MANAGEMENT
Administrative
\ i
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ALABAMA
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
Division 6
Water Quality Program (Volume 2)
¦„ ' -1' - *"•
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ALABAMA DEPARTMENT OF ENVIRONMENTAL M AN AG EM F.N 1
Water Division-Water Quality Prograu
Volume II
Division 335-6-15
1751 Cong. W.L. Dickinson Drive
Montgomery. Alabama 36130
(205; 271-7700
CITE AS
ADEM ADMIN. Code R. 335-6-x-.xx
EFFECTIVE DATE: April 5, 1989
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ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
Water Division-Water Quality Program
Volume II
Division 335-6-15
TABLE OF CONTENTS
Chapter 335-6-15 PAGE NO.
Technical Standards, Corrective Action
Requirements and Financial Responsibility
for Owners and Operators of Underground
Storage Tanks
335-6-15-.01 Purpose 15-2
335-6-15-.02 Definitions 15-2
335-6-15-.03 Applicability 15-10
335-6-15-.04 Interim Prohibition for Deferred
UST Systems 15-11
335-6-15-.05 Notification 15-12
335-6-15-.06 Performance Standards for New
UST Systems 15-14
335-6-15-.07 Upgrading of Existing UST
Systems 15-17
335-6-15-.08 Plans and Specifications 15-19
335-6-15-.09 Spill and Overfill Control .... 15-21
335-6-15-.10 Operation and Maintenance of
Corrosion Protection 15-22
335-6-15-.il Compatibility 15-22
335-6-15-.12 Repairs Allowed 15-23
335-6-15-.13 Reporting and Recordkeeping .... 15-24
335-6-15-.14 General Release Detection
Systems for All UST Systems .... 15-25
335-6-15-.15 Release Detection Requirements
for Petroleum UST Systems 15-27
335-6-15-.16 Release Detection Requirements
for Hazardous Substance UST
Systems 15-29
335-6-15-.17 Methods of Release Detection
for Tanks 15-31
335-6-15-.18 Methods of Release Detection
for Piping 15-39
335-6-15-.19 Release Detection Recordkeeping . . 15-40
335-6-15-.20 Reporting of Suspected Releases . . 15-40
335-6-15-.21 Investigation Due to
Environmental Impact 15-41
335-6-15-.22 Release Investigation and
Confirmation Steps ........ 15-41
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Chapter 335-6-15 PAGE NO.
Technical Standards, Corrective Action
Requirements and Financial Responsibility
for Owners and Operators of Underground
Storage Tanks
335-6-15-.23 Reporting and Clean-up of
Spills and Overfills 15-42
335-6-15-.24 Initial Release Response 15-43
335-6-15-.25 Initial Abatement Measures
and Preliminary Investigation . . . 15-44
335-6-15-.26 Preliminary Investigation
Requirements 15-45
335-6-15-.27 Free Product Removal 15-48
335-6-15-.28 Secondary Investigation
Requirements 15-49
335-6-15-.29 Corrective Action Plan 15-51
335-6-15-.30 Corrective Action Limits
for Soils 15-53
335-6-15-.31 Corrective Action Limits for
Groundwater 15-54
335-6-15-.32 Alternative Corrective Action
Limits 15-54
335-6-15-.33 Risk Assessment 15-56
335-6-15-.34 Public Participation 15-58
335-6-15-.35 Analytical 15-58
335-6-15-.36 Temporary Closure .... 15-60
335-6-15-.37 Permanent Closure and
Changes-in-Service 15-61
335-6-15-.38 Site Closure or Change-in-
Service Assessments 15-62
335-6-15-.39 Applicability to Previously
Closed UST Systems 15-62
335-6-15-.40 Closure Records 15-62
335-6-15-.41 Alternate or Temporary
Drinking Water Source 15-63
335-6-15-.42 Availability to Public of
Records, Reports or Information . . 15-63
335-6-15-.43 Access to Records 15-64
335-6-15-.44 Entry and Inspection of
Facilities 15-64
335-6-15-.45 Underground Storage Tank
Regulation Fee 15-64
335-6-15-.46 Financial Responsibility
for Petroleum UST Owners
and Operators 15-64
335-6-15-.47 Financial Responsibility for
Hazardous Substance UST Owners
and Operators (Reserved) 15-64
335-6-15-.48 Severability 15-65
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Chapter 335-6-16 PAGE NO.
Administrative Guidelines and Procedures
for the Alabama Underground Storage Tank
(AUST) Trust Fund
335-6-16-.01 Purpose 16-1
335-6-16-.02 Definitions . . . 16-1
335-6-16-.03 Applicability 16-7
335-6-16-.04 AUST Trust Fund Eligibility
Requirements . . . 16-8
335-6-16-.05 Loss and Restoration of AUST
Trust Fund Eligibility 16-5
335-6-16-.06 Annual AUST Trust Fund Fees
and Special Assessments ...... 16-10
335-6-16-.07 Authorized ADEM Disbursements
of AUST Trust Funds 16-11
335-6-16-.08 Scope of AUST Trust Fund
Coverage ...... 16-12
335-6-16-.09 Requirements for AUST Trust
Fund Coverage of Response
Action Costs 16-12
335-6-16-.10 Requirements for AUST Trust
Fund Coverage of Third Party
Claims 16-16
335-6-16-.11 AUST Trust Fund Obligations .... 16-16
335-6-16-.12 AUST Trust Fund Ineligible
Costs 16-17
335-6-16-.13 Applications for Payment 16-18
335-6-16-.14 AUST Trust Fund Payment
Procedures 16-20
335-6-16-.15 Approval of Response Actions
Contractors 16-21
335-6-16-.16 Insufficient Funds 16-24
335-6-16-.17 Cost Recovery Allowed 16-24
335-6-16-.18 Adjustment of Limit of Owner
or Operator's Financial
Responsibility 16-25
335-6-16-.19 Severability . 16-25
i. i.i
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ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
Water Division-Water Quality Control
Chapter 335-6-15
Technical Standards, Corrective Action
Requirements and Financial Responsibility
for Owners and Operators of Underground
Storage Tanks
Table of Contents
335-6-15-.01 Purpose
335-6-15-.02 Definitions
335-6-15-.03 Applicability
335-6-15-.04 Interim Prohibition for Deferred UST Systems
335-6-15-.05 Notification
335-6-15-.06 Performance Standards for New UST Systems
335-6-15-.07 Upgrading of Existing UST Systems
335-6-15-.08 Plans and Specifications
335-6-15-.09 Spill and Overfill Control
335-6-15-.10 Operation and Maintenance of Corrosion
Protection
335-6-15-.il Compatibility
335-6-15-.12 Repairs Allowed
335-6-15-.13 Reporting and Recordkeeping
335-6-15-.14 General Release Detection Systems for All UST
Systems
335-6-15-.15 Release Detection Requirements for Petroleum
UST Systems
335-6-15-.16 Release Detection Requirements for Hazardous
Substance UST Systems
335-6-15-.17 Methods of Release Detection for Tanks
335-6-15-.18 Methods of Release Detection for Piping
335-6-15-.19 Release Detection Recordkeeping
335-6-15-.20 Reporting of Suspected Releases
335-6-15-.21 Investigation Due to Environmental Impact
335-6-15-.22 Release Investigation and Confirmation Steps
335-6-15-.23 Reporting and Clean-up of Spills and Overfills
335-6-15-.24 Initial Release Response
335-6-15-.25 Initial Abatement Measures and Preliminary
Investigation
335-6-15-.26 Preliminary Investigation Requirements
335-6-15-.27 Free Product Removal
335-6-15-.28 Secondary Investigation Requirements
335-6-15-.29 Corrective Action Plan
335-6-15-.30 Corrective Action Limits for Soils
335-6-15-.31 Corrective Action Limits for Groundwater
15-1
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335-6-15-.02
335-6-15-.32 Alternative Corrective Action Limits
335-6-15-.33 Risk Assessment
335-6-15-.34 Public Participation
335-6-15-.35 Analytical
335-6-15-.36 Temporary Closure
335-6-15-.37 Permanent Closure and Changes-in-Service
335-6-15-.38 Site Closure or Change-in-Service Assessments
335-6-15-.39 Applicability to Previously Closed UST Systems
335-6-15-.40 Closure Records
335-6-15-.41 Alternate or Temporary Drinking Water Source
335-6-15-.42 Availability to Public of Records, Reports or
Information
335-6-15-.43 Access to Records
335-6-15-.44 Entry and Inspection of Facilities
335-6-15-.45 Underground Storage Tank Regulation Fee
335-6-15-.46 Financial Responsibility for Petroleum UST
Owners and Operators
335-6-15-.47 Financial Responsibility for Hazardous
Substance UST Owners and Operators (Reserved)
335-6-15-.48 Severability
335-6-15-.01 Purpose. This chapter is promulgated to
establish construction, installation, performance, and
operating standards for underground storage tanks and to
implement the purposes and objectives of , the Alabama
Underground Storage Tank and Wellhead Protection Act of
1988 with respect to the regulation of underground storage
tanks.
Statutory Authority: Code of Alabama 1975, §§22-36-1 et
seq.
Effective (Author): April 5, 1989; (Sonja Massey).
335-6-15-.02 Definitions. The following words and terms,
when used in this Chapter. shall have the following
meanings unless the context clearly indicates otherwise.
(a) "Aboveground release" means any release to the
surface of the land or to surface water. This includes,
but is not limited to, releases from the aboveground
portion of an UST system and aboveground releases
associated with overfills and transfer operations as the
regulated substance moves to or from an UST system.
(b) "ADEM" means the Alabama Department of
Environmental Management.
(c) "Ancillary equipment" means any devices
including, but not limited to, such devices as piping,
fittings, flanges, valves, and pumps used to distribute,
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335-6-15-.02
meter, or control the flow of regulated substances to and
from an UST.
(d) "Belowground release" means any release to the
subsurface of the land, including releases to groundwater.
This includes, but is not limited to, releases from the
belowground portions of an underground storage tank system
and belowground releases associated with overfills and
transfer operations as the regulated substance moves to or
from an underground storage tank.
(e) "Beneath the surface of the ground" means beneath
the ground surface or otherwise covered with earthen
materials.
(f) "Cathodic protection" is a technique to prevent
corrosion of a metal surface by making that surface the
cathode of an electrochemical cell. For example, a tank
system can be cathodically protected through the
application of either galvanic anodes or impressed current.
(g) "Cathodic protection tester" means a person who
can demonstrate an understanding of the principles and
measurements of all common types of cathodic protection
systems as applied to buried or submerged metal piping and
tank systems. At a minimum, such pe"rsons must have
education and experience in soil resistivity, stray
current, structure-to-soil potential, and component
electrical isolation measurements of buried metal piping
and tank systems.
(h) "CERCLA" means the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended.
(i) "Compatible" means the ability of two or more
substances to maintain their respective physical and
chemical properties upon contact with one another for the
design life of the tank system under conditions likely to
be encountered in the UST.
(j) "Connected piping" means all underground piping
including valves, elbows, joints, flanges and flexible
connectors attached to a tank system through which
regulated substances flow. For the purpose of determining
how much piping is connected to any individual UST system,
the piping that joins two UST systems should be allocated
equally between them.
(k) "Consumptive use" with respect to heating oil
means consumed on the premises.
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335-6-15-.02
(1) "Contaminant" means a regulated substance which
has been released into the environment.
(m) "Corrective action limits (CAL)" means those
contaminant concentrations which must be achieved in order
for corrective action to be deemed complete by the
Department.
(n) "Corrosion expert" means a person who, by reason
of thorough knowledge of the physical sciences and the
principles of engineering and mathematics acquired by a
professional education and related practical experience, is
qualified to engage in the practice of corrosion control on
buried or submerged metal piping systems and metal tanks.
Such a person must be accredited or certified as being
qualified by the National Association of Corrosion
Engineers or be a registered professional engineer who has
certification or licensing that includes education and
experience in corrosion control of buried or submerged
metal piping systems and metal tanks.
(o) "De minimus concentration" means that amount of
hazardous substance mixed with a petroleum product which
does not alter the detectability, effectiveness of
corrective action, or toxicity of the petroleum to any
significant degree.
(p) "Department" means the Alabama Department of
Environmental Management.
(q) "Dielectric material" means a material that does
not conduct direct electrical current. Dielectric coatings
are used to electrically isolate UST systems from the
surrounding soils. Dielectric bushings are used to
electrically isolate portions of the UST system (e.g., tank
from piping).
(r) "Director" means the Director of the Alabama
Department of Environmental Management.
(s) "Electrical equipment" means underground
equipment that contains dielectric fluid that is necessary
for the operation of equipment such as transformers and
buried electrical cable.
(t) "Excavation zone" means the volume containing the
tank system and backfill material bounded by the ground
surface, walls, and floor of the pit and trenches into
which the UST system is placed at the time of installation.
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335-6-15-.02
(u) "Existing tank system" means a tank system used
to contain an accumulation of regulated substances or for
which installation has commenced on or before (insert
effective date of ADEM UST regulations). Installation is
considered to have commenced if:
1. the owner or operator has obtained all federal,
state, and local approvals or permits necessary to begin
physical construction of the site or installation of the
tank system; and if,
2. either a continuous on-site physical construction
or installation program has begun; or,
3. the owner or operator has entered into contractual
obligations—which cannot be cancelled or modified without
substantial loss — for physical construction at the site or
installation of the tank system to be completed within a
reasonable time.
(v) "Farm tank" is a tank located on a tract of land
devoted to the production of crops or raising animals,
including fish, and associated residences and
improvements. A farm tank must be located on the farm
property. "Farm" includes fish hatcheries, rangeland and
nurseries with growing operations.
(w) "Flow-through process tank" is a tank that forms
an integral part of a production process through which
there is a steady, variable, recurring, or intermittent
flow of materials during the operation of the process.
Flow-through process tanks do not include tanks used for
the storage of materials prior to their introduction into
the production process or for the storage of finished
products or by-products from the production process.
(x) "Free product" refers to a regulated substance
that is present as a nonaqueous phase liquid (e.g., liquid
not dissolved in water).
(y) "Gathering lines" means any pipeline, equipment,
facility, or building used in the transportation of oil or
gas during oil or gas production or gathering operations.
(z) "Groundwater" means water below the land surface
in a zone of saturation.
(aa) "Hazardous substance UST system" means an
underground storage tank system that contains a hazardous
substance defined in section 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act of
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335-6-15-.02
1980 (but not including any substance regulated as a
hazardous waste under Division 14 of the ADEM
Administrative Code) or any mixture of such substances and
petroleum, and which is not a petroleum UST system.
(bb) "Heating oil" means petroleum that is No. 1, No.
2, No. 4--light, No. 4--heavy. No. 5--light, No. 5--heavy,
and No. 6 technical grades of fuel oil; other residual fuel
oils (including Navy Special Fuel Oil and Bunker C) ; and
other fuels when used as substitutes for one of these fuel
oils. Heating oil is typically used in the operation of
heating equipment, boilers, or furnaces.
(cc) "Hydraulic lift tank" means a tank holding
hydraulic fluid for a closed-loop mechanical system that
used compressed air or hydraulic fluid to operate lifts,
elevators, and other similar devices.
(dd) "Liquid trap" means sumps, well cellars, and
other traps used in association with oil and gas
production, gathering, and extraction operations (including
gas production plants), for the purpose of collecting oil,
water, and other liquids. These liquid traps may
temporarily collect liquids for subsequent disposition or
reinjection into a production or pipeline stream, or may
collect and separate liquids from a gas stream.
(ee) "Maintenance" means the normal operational
upkeep to prevent an underground storage tank system from
releasing product.
(ff) "Motor fuel" means petroleum or a
petroleum-based substance that is motor gasoline, aviation
gasoline, No. 1 or No. 2 diesel fuel, or any grade of
gasohol, and is typically used in the operation of a motor
engine.
(gg) "New tank system" means a tank system that will
be used to contain an accumulation of regulated substances
and for which installation has commenced after (insert
effective date of ADEM UST regulations). (See also
"Existing tank system.")
(hh) "Noncommercial purposes" with respect to motor
fuel means not for resale.
(ii) "On the premises where stored" with respect to
heating oil means UST systems located on the same property
where the stored heating oil is used.
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335-6-15-.02
(jj) "Operational life" refers to the period
beginning when installation of the tank system has
commenced until the time the tank system is properly closed
under Rules 335-6-15-.36 through 335-6-15-.40.
(kk) "Operator" means any person in control of, or
having responsibility for, the daily operation of the UST
system.
(11) "Overfill release" is a release that occurs when
a tank is filled beyond its capacity, resulting in a
discharge of the regulated substance to the environment.
(mm) "Owner" means: in the case of an UST system in
use on November 8, 1984, or brought into use after that
date, any person who owns an UST system used for storage,
use, or dispensing of regulated substances; and in the case
of any UST system in use before November 8, 1984, but no
longer in use on that date, the present owner of the
underground storage tank and any person who owned such
underground storage tank immediately before the
discontinuation of its use.
(nn) "Person" means an individual, trust, firm, joint
stock company, federal agency, corporation, state,
municipality, commission, political subdivision of a state,
or any interstate body. "Person" also includes a
consortium, a joint venture, a commercial entity, and the
United States Government.
(oo) "Petroleum UST system" means an underground
storage tank system that contains petroleum or a mixture of
petroleum with de minimus quantities of other regulated
substances. SucTT systems include those containing motor
fuels, jet fuels, distillate fuel oils, residual fuel oils,
lubricants, petroleum solvents, and used oils.
(pp) "Pipe" or "Piping" means a hollow cylinder or
tubular conduit that is constructed of non-earthen
materials.
(qq) "Pipeline facilities (including gathering
lines)" are new and existing pipe rights-of-way and any
associated equipment, facilities, or buildings.
(rr) "Regulated substance" means any substance
defined in section 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act
(CERCLA) of 1980 (but not including any substance regulated
as a hazardous waste under Division 14 of the ADEM
Administrative Code); and petroleum, including crude oil or
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335-6-15-.02
any fraction thereof that is liquid at standard conditions
of temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute). The term "regulated
substance" includes but is not limited to petroleum and
petroleum-based substances comprised of a complex blend of
hydrocarbons derived from crude oil through processes of
separation, conversion, upgrading, and finishing, such as
motor fuels, jet fuels, distillate fuel oils, residual fuel
oils, lubricants, petroleum solvents, and used oils.
(ss) "Release" means any spilling, leaking, emitting,
discharging, escaping, leaching or disposing from an UST
into groundwater, surface water or subsurface soils.
(tt) "Release detection" means determining whether a
release of a regulated substance has occurred from the UST
system into the environment or into the interstitial space
between the UST system and its secondary barrier or
secondary containment around it.
(uu) "Repair" means to restore a tank or UST system
component that has caused a release of product from the UST
system.
(vv) "Residential tank" is a tank located on property
used primarily for dwelling purposes.
(ww) "SARA" means the Superfund Amendments and
Reauthorization Act of 1986.
(xx) "Septic tank" is a water-tight covered
receptacle designed to receive or process, through liquid
separation or biological digestion, the sewage discharged
from . a building sewer. The effluent from such receptacle
is distributed for disposal through the soil and settled
solids and scum from the tank are pumped out periodically
and hauled to a treatment facility.
(yy) "Storm-water or wastewater collection system"
means piping, pumps, conduits, and any other equipment
necessary to collect and transport the flow of surface
water run-off resulting from precipitation, or domestic,
commercial, or industrial wastewater to and from retention
areas or any areas where treatment is designated to occur.
The collection of storm water and wastewater does not
include treatment except where incidental to conveyance.
(zz) "Surface impoundment" is a natural topographic
depression, man-made excavation, or diked area formed
primarily of earthen materials (although it may be lined
with man-made materials) that is not an injection well.
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335-6-15-.02
(aaa) "Tank" is a stationary device designed to
contain an accumulation of regulated substances and
constructed of non-earthen materials (e.g., concrete,
steel, plastic) that provide structural support.
(bbb) "Underground area" means an underground room,
such as a basement, cellar, shaft or vault, providing
enough space for physical inspection of the exterior of the
tank situated on or above the surface of the floor.
(ccc) "Underground release" means any belowground
release.
(ddd) "Underground storage tank" or "UST" means any
one or combination of tanks (including underground pipes
connected thereto) that is used to contain an accumulation
of regulated substances, and the volume of which (including
the volume of underground pipes connected thereto) is 10
percent or more beneath the surface of the ground. This
term does not include any:
1. Farm or residential tank of 1,100 gallons or less
capacity used for storing motor fuel for noncommerical
purposes;
2. Tank used for storing heating oil for consumptive
use on the premises where stored;
3. Septic tank;
4. Pipeline facility (including gathering lines)
regulated under:
(i) The Natural Gas Pipeline Safety Act of 1968 (49
U.S.C. App. 1671, et seq.), or
(ii) The Hazardous Liquid Pipeline Safety Act of 1979
(49 U.S.C. App. 2001, «5t seq.), or
(iii) State laws comparable to the provisions of law
in Subparagraph (i) or (ii) above;
5. Surface impoundment, pit, pond, or lagoon;
6. Storm-water or wastewater collection system;
7. Flow-through process tank;
8. Liquid trap or associated gathering lines directly
related to oil or gas production and gathering operations;
or
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335-6-15-.03
9. Storage tank situated in an underground area (such
as a basement cellar, mineworking, drift, shaft, or tunnel)
if the storage tank is situated upon or above the surface
of the floor.
10. Other tanks exempted by the administrator of the
United States Environmental Protection Agency; and
11. Piping connected to any of the above exemptions.
(eee) "Upgrade" means the addition or retrofit of
some systems such as cathodic protection, lining, or spill
and overfill controls to improve the ability of an
underground storage tank system to prevent the release of
product.
(fff) "UST system" or "Tank system" means an
underground storage tank, connected underground piping,
underground ancillary equipment, and containment system, if
any.
(gS8) "Wastewater treatment tank" means a tank that
is designated to receive and treat an influent wastewater
through physical, chemical, or biological methods.
Statutory Authority: Code of Alabama 1975, §§22-36-2,
22-36-3.
Effective (Author): April 5, 1989; (Sonja Massey).
335-6-15-.03 Applicability.
(1) The requirements of this chapter apply to all
owners and operators of an UST system as defined in Rule
335-6-15-.02 except as otherwise provided for in paragraphs
(2), (3) and (4) of this rule. Any UST system listed in
paragraph (3) of this rule must meet the requirements of
Rule 335-6-15-.04.
(2) The following UST systems are excluded from the
requirements of this chapter:
(a) Any UST system holding hazardous wastes listed or
identified under Division 14 of the ADEM Administrative
Code, or a mixture of such hazardous wastes and other
regulated substances.
(b) Any wastewater treatment tank system that is part
of a wastewater treatment facility regulated under Chapter
335-6-5 or 335-6-6 of the ADEM Administrative Code.
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335-6-15-.04
(c) Equipment or machinery that contains regulated
substances for operational purposes such as hydraulic lift
tanks and electrical equipment tanks.
(d) Any UST system whose capacity is 110 gallons or
less.
(e) Any UST system that -contains a de minimus
concentration of regulated substances.
(f) Any emergency spill or overflow containment UST
system that is expeditiously emptied after use.
(3) Deferrals. The following UST systems are only
subject to Rules 335-6-15-.04 and 335-6-15-.20 through
335-6-15-.34:
(a) Wastewater treatment tank systems;
(b) Any UST system containing radioactive materials
that are regulated under the Atomic Energy Act of 1954 (42
USC 2011 and following);
(c) Any UST system that is part of an emergency
generator system at nuclear power generation facilities
regulated by the Nuclear Regulatory Commission under 10 CFR
50 Appendix A;
(d) Airport hydrant fuel distribution systems; and
(e) UST systems with field constructed tanks.
(4) Deferrals. Any UST system that stores fuel
solely for use by emergency power generators is not subject
to Rules 335-6-15-.14 through 335-6-15-.19.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; (Sonja Massey).
335-6-15-.04 Interim Prohibition for Deferred UST
Systems. No person may install an UST system listed in
Rule T35-6-15-.02(3) for the purpose of storing regulated
substances unless the UST system (whether of single- or
double-wall construction):
(a) Will prevent releases due to corrosion or
structural failure for the operational life of the UST
system;
(b) Is protected by one of the following methods:
cathodically protected against corrosion; constructed of
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335-6-15-.04
noncorrodible material; steel clad with a noncorrodible
material; or designed in a manner to prevent the release or
threatened release of any stored substance; and
(c) Is constructed or lined with material that is
compatible with the stored substance.
Statutory Authority: Code of Alabama 1975, §22-36-3
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.05 Notification Requirements
(1) Any owner or operator of an underground storage
tank system for which a notification has not been provided
to the Department as of (insert effective date of this
chapter), must within 30 days of that date, submit, in a
form approved by the Department, a notice of the existence
of such tank system to the ADEM.
Notification shall include the information identified in
paragraph (2) below.
(2) Any owner who brings an underground storage tank
system into use after (insert effective date of this
chapter), must within 30 days of bringing such tank into
use, submit, in a form approved by the Department, a notice
of the existence of such tank system to the ADEM.
Notification shall include the following information:
(a) Owner name and address.
(b) Type of owner (e.g., sole proprietor,
partnership, corporation).
(c) Location of tank.
1. Description of facility location;
2. Mailing address of facility at which tank is
located (where applicable) ;
(d) Name and telephone number of contact person at
facility where the tank is located (where applicable).
(e) Operational status of tank.
(f) Estimated age of tank.
(g) Estimated total capacity in gallons.
(h) Material of construction of tank and piping.
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335-6-15-.05
(i) Type of tank internal protection.
(j) Type of tank external protection.
(k) Type of release detection method or methods.
(1) Substance currently stored.
(m) Type of product dispensing system; pressure or
suction.
(n) Location of check valve and slope of piping for
suction systems.
(o) Other such information determined to be necessary
by the Department.
(3) An owner of an UST system which has had a
modification which has changed any of the information
reported originally under paragraph (1) or (2) of this rule
must submit an amended notification to the department
within 30 days of the completion of that modification.
(4) Owners required to submit notices under
paragraphs (1) and (2) of this rule must provide notices to
the Department for each tank they own. Owners may provide
notice for several tanks using one notification form, but
owners who own tanks located at more than one place of
operation must file a separate notification form for each
separate place of operation.
(5) Notices for tanks installed after (insert
effective date of this chapter) must also provide all of
the information required in Rule 335-6-15-.06(e) for each
tank for which notice must be given.
(6) All owners and operators of new UST systems must
certify in the notification, that they are in compliance
with the following requirements:
(a) Installation of tanks and piping under Rule
335-6-15-.06(d);
(b) Cathodic protection of steel tanks and piping
under Rule 335-6-15-.06(a) and (b);
(c) Financial responsibility under Rules 335-6-15-.47
and 335-6-15-.48;
(d) Release detection under Rules 335-6-15-.15 and
6-15-.16.
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335-6-15-.06
(7) All owners arid operators of new UST systems must
ensure that the installer certifies in the notification
form that the methods used to install the tanks and piping
complies with the requirements in Rule 335-6-15-.06(d).
(8) Any person who sells a tank intended to be used
as an undergound storage tank must notify the purchaser of
such tank of the owner's notification obligations under
paragraph (2) of this rule.
(9) Any person who sells an UST system that is
already in service must: notify the Department of such
sale, provide proof of transfer of ownership of the UST
system and provide the name and address of the new UST
system owner to the Department.
(10) A person receiving ownership of an UST system
under the conditions of paragraph (9) of this rule must
comply with the notification requirements of paragraphs (1)
and (3) of this rule.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): Apri1 5^ 1989; CSonja Massey).
335-6-15-.06 Performance Standard For New UST Systems. In
order to prevent releases due to structural failure,
corrosion, or spills and overfills for as long as the UST
system is used to store regulated substances, all owners
and operators of new UST systems must meet the following
requirements.
(a) Tanks. Each tank must be properly designed and
constructed and any portion underground that routinely
contains product must be protected from corrosion, in
accordance with a code of practice developed by a
nationally recognized association or independent testing
laboratory as specified below:
1. The tank is constructed of fiberglass-reinforced
plastic; or
2. The tank is constructed of steel and cathodically
protected in the following manner:
(i) The tank is coated with a suitable dielectric
material;
(ii) Field-installed cathodic protection systems are
designed by a corrosion expert;
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335-6-15-.06
(iii) Cathodic protection systems are designed to allow
determination of current operating status according to the
requirements of Rule 335-6-15-.10; and
(iiii) Cathodic protection systems are operated and
maintained in accordance with Rule 335-6-15-.10.
3. The tank is constructed of a
steel-fiberglass-reinforced-plastic composite; or
4. The tank construction and corrosion protection are
determined by the Department to be designed to prevent the
release or threatened release of any stored regulated
substance in a manner that is no less protective of human
health and the environment than the requirements of
subparagraphs (a)l. through 3. of this rule.
(b) Piping. The piping that routinely contains
regulated substances and is in contact with the ground must
be properly designed, constructed, and protected from
corrosion in accordance with a code of practice developed
by a nationally recognized association or independent
testing laboratory as specified below:
1. The piping is constructed of fiberglass-reinforced
plastic; or
2. The piping is constructed of steel and
cathodically protected in the following manner:
(i) The piping is coated with a suitable dielectric
material;
(ii) Field-installed cathodic protection systems are
designed by a corrosion expert;
(iii) Cathodic protection systems are designed to
allow determination of current operating status according
to the requirements of Rule 335-6-15-.10; and
(iiii) Cathodic protection systems are operated and
maintained in accordance with Rule 335-6-15-.10.
3. The piping construction and corrosion protection
are determined by the Department to be designed to prevent
the release or threatened release of any stored regulated
substance in a manner that is no less protective of human
health and the environment than the requirements in
subparagraphs (b)l. and 2. of this rule.
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(c) Spill and Overfill Prevention Equipment. Except
as provided for in sub-paragraph (c)3. below, to prevent
spilling and overfilling associated with product transfer
to the UST system, owners and operators must use the
following spill and overfill prevention equipment or
preventive measures in 1. and 2. below:
1. Spill prevention equipment that will prevent
release of product to the environment when the transfer
hose is detached from the fill pipe (for example, a spill
catchment basin); and
2. Overfill prevention equipment that will:
(i) Automatically shut off flow into the tank when
the tank is no more than 95 percent full; or
(ii) Alert the transfer operator when the tank is no
more than 90 percent full by restricting the flow into the
tank or triggering a high-level alarm.
3. Owner and operators are not required to use the
spill and overfill prevention equipment specified in
sub-paragraphs (c)l. and 2. above if alternative equipment
is used that is determined by the Department to be no less
protective of human health and the environment than the
equipment specified in subparagraph (c)l. or 2. of this
rule; or the UST system is filled by transfers of no more
than 25 gallons at one time.
(d) Installation. All tanks and piping must be
properly installed in accordance with a code of practice
developed by a nationally recognized association or
independent testing laboratory in accordance with the
manufacturer's instructions, and in accordance with plans
and specifications reviewed by the Department, where
required, to include any modifications required to be made
by the Department.
(e) Certification of Installation. All owners and
operators must ensure that one or more of the following
methods of certification, testing, or inspection is used to
demonstrate compliance with subparagraph (d) of this rule
by providing a certification of compliance on the UST
notification form in accordance with Rule 335-6-15-.05.
1. The installer has been certified by the tank and
piping manufacturers; or
2. The installation has been inspected and certified
by a registered professional engineer, possessing education
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335-6-15-.07
and experience in UST system installation and that the UST
system has been installed in accordance with plans and
specifications which have been reviewed by the Department
where required; or
3. The installation has been inspected and approved
by the Department; or
4. All work listed in the manufacturer's installation
checklists has been completed, and the installation is in
accordance with plans nad specifications reviewed by the
Department, where required; or
5. The owner and operator have complied with another
method for ensuring compliance with subparagraph (d) of
this rule that is determined by the Department to be no
less protective of human health and the environment.
(f) The Department reserves the right to inspect an
UST system within 30 days of submission of plans or
notification of installation prior to the UST system being
fully backfilled and placed into operation. The Department
may authorize a representative to make this inspection.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; (Sonja Massey).
335-6-15-.07 Upgrading of Existing UST Systems.
(1) Alternatives Allowed. Not later than December
22, 1998, all existing UST systems must comply with one of
the following requirements:
(a) New UST system performance standards under Rule
335-6-15-.06;
(b) The upgrading requirements in paragraphs (2)
through (4) below; or
(c) Closure requirements under Rules 335-6-15-.36
through 335-6-15-.40, including applicable requirements for
corrective action under Rules 335-6-15-.25 through
335-6-15-.34.
(2) Tank Upgrading Requirements. Steel tanks must be
upgraded to meet one ot the following requirements in
accordance with a code of practice developed by a
nationally recognized association or independent testing
laboratory:
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335-6-15-.07
(a) Interior Lining. A tank may be upgraded by
internal lining if:
1. The lining is installed in accordance with the
requirements of Rule 335-6-15-.12, and
2. Within 10 years after lining, and every 5 years
thereafter, the lined tank is internally inspected and
found to be structurally sound with the lining still
performing in accordance with original design
specifications.
(b) Cathodic Protection. A tank may be upgraded by
cathodic protection Tf the cathodic protection system meets
the requirements of Rule 335-6-15-.06(a)2.ii, iii, and iiii
and the integrity of the tank is ensured using one of the
following methods:
1. The tank is internally inspected and assessed to
ensure that the tank is structurally sound and free of
corrosion holes prior to installing the cathodic protection
system; or
2. The tank has been installed for less than 10 years
and is monitored monthly for releases in accordance with
Rule 335-6-15-.17(d) through (h) ; or
3. The tank has been installed for less than 10 years
and is assessed for corrosion holes by conducting two (2)
tightness tests that meet the requirements of Rule
335-6-15-.17(3). The first tightness test must be
conducted prior to installing the cathodic protection
system. The second tightness test must be conducted
between three (3) and six (6) months following the first
operation of the cathodic protection system; or
4. The tank is assessed for corrosion holes by a
method that is determined by the Department to prevent
releases in a manner that is no less protective of human
health and the environment than the requirements of
subparagraphs (2)(b)l. through 3. of this rule.
(c) Internal Lining Combined With Cathodic
Protection. A tank may be upgraded by both internal lining
and cathodic protection if:
1. The lining is installed in accordance with the
requirements of Rule 335-6-15-.12; and
2. The cathodic protection system meets the
requirements of Rule 335-6-15-.06(a)2.ii, iii, and iiii
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335-6-15-.08
(3) Piping Upgrading Requirements. Metal piping that
routinely contains regulated substances and is in contact
with the ground must be cathodically protected in
accordance with a code of practice developed by a
nationally recognized association or independent testing
laboratory and must meet the requirements of Rule
335-6-15-.06(b)2.ii, iii, and iiii.
(A) Spill and Overfill Prevention Equipment. To
prevent spilling and overfilling associated with product
transfer to the UST system, all existing UST systems must
comply with new UST system spill and overfill prevention
equipment requirements specified in Rule 335-6-15-.06(c).
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.08 Plans and Specifications
(1) Submission of Plans. The Department may require
the submission oT plans, specifications, and other
technical data pursuant to Rule 335-6-15-.06, 335-6-15-.07,
or any other requirement by the Department relating to the
construction of UST systems, upgrading of UST systems,
installation of release detection equipment, corrosion
protection measures, or engineering design related to the
implementation of a corrective action plan. Such plans and
specifications shall be submitted at least 30 days prior to
the anticipated date of construction or installation.
Where plans and specifications are not required, a
notification of installation shall be submitted 30 days
prior to the anticipated date of installation. Such
submissions shall be in a form which is acceptable to the
Department. The Department may require modification of
submitted plans and specifications where necessary to
demonstrate compliance with applicable requirements.
(2) Preparation of Plans, Specifications, and
Technical Data. Plans, specifications, and technical data
submitted to the Department for review shall bear the seal
or number of a professional engineer, in accordance with
Alabama law concerning engineering practices, who is
competent to perform work in this field of engineering.
(3) Plans and specifications submitted for
construction and upgrading of UST systems shall, where
applicable, adequately describe:
(a) Site sketch with boundaries and structures
approximately to scale.
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335-6-15-.08
(b) Tank excavation dimensions and location.
(c) Tank capacity, dimensions, materials of
construction, and material to be stored, and whether of
single or double wall construction.
(d) Type and size of backfill material.
(e) Depth of backfill to be placed under tank.
(f) Water table data for the site, including the
annual high and low water table elevations as determined
from nearby water supply wells, piezometers, or other
available hydrogeologic data.
(g) Supports and anchorage design if applicable.
(h) Piping dimensions, materials of construction,
layout, location of dispensers, and slope of piping for
suction systems.
(i) Release detection method to be used, to include:
1. Number, location and construction details for any
monitoring wells, whether for groundwater monitoring, vapor
monitoring or monitoring of an interstitial space.
2. Description of and manufacturer's performance
specifications for any continuous monitoring equipment to
be used where required by the Department.
3. For non-continuous monitoring, (other than manual
sampling of groundwater monitoring wells), a description of
and manufacturer's performance specifications for the type
of equipment to be used where required by the Department.
4. Manufacturer specifications for any secondary
barrier to be used in interstitial monitoring.
(j) Wiring and conduit associated with monitoring
systems.
(k) Information regarding the cathodic protection
method to be used, to include:
1. Type of cathodic protection, galvanic or impressed
current.
2. Test or monitoring station for cathodic protection
system.
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335-6-15-.09
3. Location and weight of sacrificial anodes.
4. The corrosion expert responsible for the design of
a field installed cathodic protection system.
(1) Spill and overfill containment devices.
(m) For groundwater monitoring well systems, the
hydraulic conductivity of the soils in which the monitoring
wells will be placed.
(n) Type of secondary containment, where applicable.
(0) Whether or not the UST system will be within 300
feet of a private domestic water supply or 1000 feet of a
public water supply well.
(p) Any other information that may be required by the
Department.
(4) Existing Systems. When plans and specifications
are submitted for existing systems, all available
information should be submitted regarding the above items.
(5) Modifications or Alterations. Any proposed
modification or alteration of plans, specifications, or
technical data previously submitted to and reviewed by the
Department which could affect the UST system's compliance
with this chapter must also be forwarded to the Department
for review.
Statutory Authority: Code of Alabama 1975, §§22-36-3,
22-36-4.
Effective (Author): April 5, 1989; (Sonja Massey).
335-15-.09 Spill and Overfill Control
(1) 'Owners and operators must ensure that releases
due to spilling or overfilling do not occur. The owner and
operator must ensure that the volume available in the tank
is greater than the volume of product to be transferred to
the tank before the transfer is made and that the transfer
operation is monitored constantly to prevent overfilling
and spilling.
(2) The owner and operator must report, investigate,
and clean up any spills and overfills in accordance with
Rule 335-6-15-.23.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author) : April. 5, iy«y; (Sonja Massey) .
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335-6-15-.il
335-6-15-.10 Operation and Maintenance of Corrosion
Protection All owners and operators oT steel UST systems
with corrosion protection must comply with the following
requirements to ensure that releases due to corrosion are
prevented for as long as the UST system is used to store
regulated substances:
(a) All corrosion protection systems must be operated
and maintained to continuously provide corrosion protection
to the metal components of that portion of the tank and
piping that routinely contain regulated substances and are
in contact with the ground.
(b) All UST systems equipped with cathodic protection
systems must be inspected for proper operation by a
qualified cathodic protection tester in accordance with the
following requirements:
1. Frequency. All cathodic protection systems must
be tested within 6 months of installation and at least
every 3 years thereafter; and
2. Inspection Criteria. The criteria that are used
to determine that cathodic protection is adequate as
required by subparagraphs (a) and (b) of this rule must be
in accordance with the code of practice established by the
National Association of Corrosion Engineers.
(c) UST systems with impressed current cathodic
protection systems must also be inspected every 60 days to
ensure the equipment is operating properly.
(d) For UST systems using cathodic protection,
records of the operation of the cathodic protection must be
maintained in accordance with Rule 335-6-15-.13 to
demonstrate compliance with the performance standards in
this section. These records must provide the following:
1. The results of the last three inspections required
in subparagraph (c) of this rule; and
2. The results of testing from the last two
inspections required in subparagraph (b) of this rule.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; ("Sonja Massey).
335-6-15-.il Compatibility.
Owners and operators must use an UST system made of or
lined with materials that are compatible with the substance
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335-6- 15- 12
stored in Che UST system. For petroleum, and alcohol
blends this determination shall be in accordance with the
code of practice established by the American Petroleum
Institute.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Authority): April 5, 1989; (Sonja Massey).
335-6-15-.12 Repairs Allowed Owners and operators of UST
systems must ensure the repairs will prevent releases due
to structural failure or corrosion as long as the UST
system is used to store regulated substances. The repairs
must meet the following requirements:
(a) Repairs to UST systems must be properly conducted
in accordance with a code of practice developed by a
nationally recognized association or an independent testing
laboratory.
(b) Repairs to fiberglass-reinforced plastic tanks
must be made by the manufacturer's authorized
representatives or in accordance with a code of practice
developed by a nationally recognized association or an
independent testing laboratory.
(c) Metal pipe sections and fittings that have
released product as a result of corrosion or other damage
must be replaced. Fiberglass pipes and fittings may be
repaired in accordance with the manufacturer's
specifications.
(d) Repaired tanks and piping must be tightness
tested in accordance with Rule 335-6-15-.17(c) and Rule
335-6-15-. 18(b) within 30 days following the date of the
completion of the repair except as provided in paragraphs
1. through 3., below:
1. The repaired tank is internally inspected in
accordance with a code of practice developed by a
nationally recognized association or an independent testing
laboratory and certification of this inspection provided to
the Department by the owner or operator and the party
performing the internal inspection; or
2. The repaired portion of the UST system is
monitored monthly for releases in accordance with a method
specified in Rule 335-6-15-.17(d) through (h); or
3. Another test method is used that is determined by
the Department to be no less protective of human health and
the environment than those listed above.
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335-6-15-.13
(e) Within 6 months following the repair of any
cathodically protected UST system, the cathodic protection
system must be tested in accordance with Rule
335-6-15-. 10(b) and (c) to ensure that it is operating
properly.
(f) UST system owners and operators must maintain
records of each repair for the remaining operating life of
the UST system that demonstrate compliance with the
requirements of this section.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; (Sonja Massey).
335-6-15-.13 Reporting and Recordkeeping. Owners and
operators of UST systems must cooperate fully with
inspections, monitoring and testing conducted by the
Department as well as requests for document submission,
submission of engineering or technical data, and testing
and monitoring performed by the owner or operator at the
request of the Department.
(a) Reporting. Owners and operators must submit the
following information to the ADEM:
1. Notification for all UST systems in accordance
with Rule 335-6-15-.05, which includes certification of
installation for new UST systems, Rule 335-6-15-.06(e);
2. Reports of all releases including suspected
releases Rule 335-6-15-.20, spills and overfills Rule
335-6-15-.23, and confirmed releases Rule 335-6-15-.24;
3. Corrective actions planned or taken including
initial abatement measures (Rule 335-6-15-.25), conducting
a preliminary investigation (Rule 335-6-15-.26), free
product removal (Rule 335-6-15-.27), conducting a secondary
investigation (Rule 335-6-15-.28) and corrective action
plan (Rule 335-6-15-.29); and
4. A notification before permanent closure or
change-in-service Rule 335-6-15-.37 and upon completion of
final closure or change-in-service.
5. Results of all tightness testing of a UST.
(b) Recordkeeping. Owners and operators must
maintain the following information:
1. Documentation of operation of corrosion protection
equipment (Rule 335-6-15-.10);
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335-6-15-.14
2. Documentation of UST system repairs (Rule
335-6-15-.12(f));
3. Compliance with release detection requirements
(Rule 335-6-15-.19);
4. Documentation of all tightness testing performed
for an UST.
5. Results of the site investigation conducted at
permanent closure (Rule 335-6-15-.40).
6. Documentation of release detection equipment
maintenance and calibrations where applicable as required
by equipment manufacturer or by the Department.
7. Documentation of compliance with notification
requirements (Rule 335-6-15-.05).
(c) Availability and Maintenance of Records. Owners
and operators must keep the records required either:
1. At the UST site and immediately available for
inspection by the Department; or
2. At a readily available alternative site and be
provided for inspection to the Department upon request.
3. In the case of permanent closure, records required
under Rule 335-6-15-.40 may be mailed to the Department if
they cannot be kept at the site or an alternative site.
(d) Current proof of tank registration shall be
displayed at active retail petroleum facilities.
Statutory Authority: Code of Alabama 1975, §§22-36-3,
22-36-4.
Effective (Author): April 5, 1989; (Sonja Massey).
335-6-15-.14 General Release Detection Requirements for
All UST Systems.
(1) Owners and operators of new and existing UST
systems must provide a method, or combination of methods,
of release detection that:
(a) Can detect a release from any portion of the tank
and the connected underground piping that routinely
contains product;
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335-6-15-.14
(b) Is installed, calibrated, operated, and
maintained in accordance with the manufacturer's
instructions, including routine maintenance and service
checks for operability or running condition; and
(c) Meets the performance requirements in Rule
335-6-15-.17 or Rule 335-6-15-.18, with any performance
claims and their manner of determination described in
writing by the equipment manufacturer or installer. In
addition, methods used after December 22, 1990, except for
methods permanently installed prior to that date, must be
capable of detecting the leak rate or quantity specified
for that method in Rule 335-6-15-. 17(b), (c) and (d) or
Rule 335-6-15-. 18(a) and (b) with a probability of
detection of 0.95 and a probability of false alarm of 0.05.
(2) When a release detection method operated in
accordance with the performance standards in Rule
335-6-15-.17 and Rule 335-6-15-.18 indicates a release may
have occurred, owners and operators must notify the
Department in accordance with Rule 335-6-15-.20.
(3) Owners and operators of all UST systems must
comply with the release detection requirements of this
chapter by December 22 of the year listed in Table A.
(4) Any existing UST system that cannot apply a
method of release detection that complies with the
requirements of this chapter must complete the closure
procedures in Rule 335-6-15-.37 through 335-6-15-.40 by the
date on which release detection is required for that UST
system under paragraph (3) of this rule.
(5) Owners of existing UST systems shall submit to
the Department a description of the type of release
detection method or methods which will be used at each site
at which an UST system is located. This description and
any required plans and specifications shall be submitted at
least 60 days prior to the date for which release detection
is required according to Table A.
(6) Release detection on systems employing the
methods of vapor monitoring, groundwater monitoring or
interstitial monitoring shall be installed according to
plans and specifications reviewed by the Department, where
required.
(7) Owners and operators must ensure that personnel
who are familiar with the monitoring, operation,
maintenance and calibration requirements of release
15-26
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335-6-15-.15
detection equipment for an UST system are routinely present
at the location of the UST.
TABLE A
Schedule for Phase-in of Release Detection
Year System was
Installed
Before 1965 or
date unknown
1965-1969
1970-1974
1975-1979
1980-1988
New Tanks
Year When Release Detection is
Required (By Dec. 22 of the
year indicated)
1989
RD
1990
P/RD
P
P
1991
1992
1993
RD
RD
RD
Immediately upon installation
(effective date of this chapter)
P = Must begin release detection for all pressurized piping
in accordance
with Rule 335-6-15-.15(b)1. and 335-6-15-.I6(b)4.
RD « Must begin release detection for tanks and suction
piping in accordance
with Rule 335-6-15-.15(a), 335-6-15-.15(b)2., and
335-6-15-.16.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): ApriL 5, I9tsy; CSonja Massey) .
335-6-15-.15 Release Detection Requirements For Petroleum
UST Systems. Owners and operators ot petroleum Ui>T systems
must provide release detection for tanks and piping as
follows:
(a) Tanks Tanks must be monitored at least every 30
days for releases using one of the methods listed in Rule
335-6-15-.17(d) through (h) except that:
1. UST systems that meet the performance standards in
Rules 335-6-15-.06 or 335-6-15-.07, and the monthly
inventory control requirements in Rule 335-6-15-.17(a) or
15-27
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335-6-15-.15
(b), may use tank tightness testing (conducted in
accordance with Rule 335-6-15-.17(c)) at least every 5
years until December 22, 1998, or until 10 years after the
tank is installed or upgraded under Rule 335-6-15-.07(2),
whichever is later;
2. UST systems that do not meet the performance
standards in Rule 335-6-15-.06 or 335-6-15-.07 may use
monthly inventory controls (conducted in accordance with
Rule 335-6-15-.17(a) or (b) and annual tank tightness
testing (conducted in accordance with Rule 335-6-15-.17(c)
until December 22, 1998, when the tank must be upgraded
under Rule 335-6-15-.07 or permanently closed under Rule
335-6-15-.37; and
3. Tanks with capacity of 550 gallons or less may use
weekly tank gauging (conducted in accordance with Rule
335-6-15-.17(b).
(b) Piping~ Underground piping that routinely
contains regulated substances must be monitored for
releases in a manner that meets one of the following
requirements:
1. Pressurized Piping. Underground piping that
conveys regulated substances under pressure must:
(i) Be equipped with an automatic line leak detector
conducted in accordance with Rule 335-6-15-.18(a); and
(ii) Have an annual line tightness test conducted in
accordance with Rule 335-6-15-.18(b) or have monthly
monitoring conducted in accordance with Rule
335-6-15-.18(c).
2. Suction Piping. Underground piping that conveys
regulated substances under suction must either have a line
tightness test conducted at least every 3 years and in
accordance with Rule 335-6-15-.18(b), or use a monthly
monitoring method conducted in accordance with Rule
335-6-15-.18(c). No release detection is required for
suction piping that is designed and constructed to meet the
following standards:
(i) The below-grade piping operates at less than
atmospheric pressure;
(ii) The below-grade piping is sloped so that the
contents of the pipe will drain back into the storage tank
if the suction is released;
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335-6-15-.16
(iii) Only one check valve is included in each suction
line;
(iiii) The check valve is located directly below and as
close as practical to the suction pump; and
(iiiii) A method is provided that allows compliance with
subparagraphs (ii) through (iiii) above, to be readily
determined.
(c) All new petroleum UST systems which are: located
within 1000 feet of a public water supply well; located
within 300 feet of a private domestic water supply; or
which are located in an area which the Department has
determined to be exceptionally vulnerable to groundwater
contamination, may be required to take additional measures
to prevent contamination of groundwater. Such measures may
include: the installation of a release detection in
accordance with one of the methods in Rule 335-6-15-. 17(d)
through (h) for tanks and (e) through (h) for piping and/or
the implementation of more frequent monitoring of release
detection systems.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, iy»y; CSonja Massey).
335-6-15-.16 Release Detection Requirements For Hazardous
Substance UST Systems. Owners ana operators of hazardous
substance UST systems must provide release detection that
meets the following requirements:
(a) Release detection at existing UST systems must
meet the requirements for petroleum UST systems in Rule
335-6-15-.15. By December 22, 1998, all existing hazardous
substance UST systems must have secondary containment and
meet the release detection requirements for new systems in
subparagraph (b) below.
(b) Release detection at new hazardous substance UST
systems must meet the following requirements:
1. Secondary containment systems must be designed,
constructed and installed to:
(i) Contain regulated substances released from the
tank system until they are detected and removed;
(ii) Prevent the release of regulated substances to
the environment at any time during the operational life of
the UST system; and
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335-6-15-.16
(iii) Be checked for evidence of a release at least
every 30 days.
2. Double-walled tanks must be designed, constructed,
and installed to:
(i) Contain a release from any portion of the inner
tank within the outer wall; and
(ii) Detect the failure of the inner wall.
3. External liners (including vaults) must be
designed, constructed, and installed to:
(i) Contain 100 percent of the capacity of the
largest tank within its boundary;
(ii) Prevent the interference of precipitation of
groundwater intrusion with the ability to contain or detect
a release of regulated substances; and
(iii) Surround the tank completely (i.e., it is capable
of preventing lateral as well as vertical migration of
regulated substances).
4. Underground piping must be equipped with secondary
containment that satisfies the requirements of subparagraph
(b)l. above (e.g., trench liners, jacketing of
double-walled pipe). In addition, underground piping that
conveys regulated substances under pressure must be
equipped with an automatic line leak detector in accordance
with Rule 355-6-15-.18(a).
5. Other methods of release detection may be used if
owners and operators:
(i) Demonstrate to the Department that an alternate
method can detect a release of the stored substance as
effectively as any of the methods allowed in Rule
335-6-15-.17(d) through (h) can detect a release of
petroleum;
(ii) Provide information to the Department on
effective corrective action technologies, health risks, and
chemical and physical properties of the stored substance,
and the characteristics of the UST site; and,
(iii) Obtain approval from the Department to use the
alternate release detection method before the installation
and operation of the new UST system.
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335-6-15-.17
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.17 Methods Of Release Detection For Tanks.
Each method of release detection for tanks used to
meet the requirements of Rule 335-6-15-.15 must be
conducted in accordance with the applicable requirements
(a) through (h) of this rule. The Department may make a
determination as to the capability of release detection
equipment to meet the requirements of this rule.
(a) Inventory Control. Product inventory control (or
another te~st oT equivalent performance) must be conducted
monthly to detect a release of at least 1.0 percent of
flow-through plus 130 gallons on a monthly basis in the
following manner:
1. Inventory volume measurements for regulated
substance inputs, withdrawals, and the amount still
remaining in the tank are recorded each operating day;
2. The equipment used is capable of measuring the
level of product over the full range of the tank's height
to the nearest one-eighth of an inch;
3. The regulated substance inputs are reconciled with
delivery receipts by measurement of the tank inventory
volume before and after delivery;
A. Deliveries are made through a drop tube that
extends to within one foot of the tank bottom;
5. Product dispensing is metered and recorded within
the local standards for meter calibration or an accuracy of
6 cubic inches for every 5 gallons of product withdrawn; and
6. The measurement of any water level in the bottom
of the tank is made to the nearest one-eighth of an inch at
least once a month.
(b) Manual Tank Gauging. Manual tank gauging must
meet the following requirements:
1. Tank liquid level measurements are taken at the
beginning and ending of a period of at least 36 hours
during which no liquid is added to or removed from the tank;
2. Level measurements are based on an average of two
consecutive stick readings at both the beginning and ending
of the period;
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335-6-15-.17
3. The equipment used is capable of measuring the
level of product over the full range of the tank's height
to the nearest one-eighth of an inch;
4. A leak is suspected and subject to the
requirements of Rules 335-6-15-.20 through 335-6-15-.23 if
the variation between beginning and ending measurements
exceed the weekly or monthly standards in the following
table:
Nominal Weekly Standard
Monthly Standard
Tank Capacity (one test)
(average of four tests)
550 gallons or less 10 gallons
5 gallons
551-1,000 gallons 13 gallons
7 gallons
1,001-2,000 gallons 26 gallons
13 gallons
5. Only tanks of 550 gallons or less nominal capacity
may use this as the sole method of release detection.
Tanks of 551 to 2,000 gallons may use the method in place
of manual inventory control in Rule 335-6-15-.17(a). Tanks
of greater than 2,000 gallons nominal capacity may not use
this method to meet release detection requirements of this
chapter.
(c) Tank Tightness Testing. Tank tightness testing
(or another test of equivalent performance) must be capable
of detecting a 0.1 gallon per hour leak rate from any
portion of the tank that routinely contains product while
accounting for the effects of thermal expansion or
contraction of the product, vapor pockets, tank
deformation, evaporation or condensation, and the location
of the water table.
1. The test must be performed by an individual having
current certification of training from the manufacturer of
the test method.
2. Unless waived by the Department the report of
tightness testing of a tank must state whether or not the
water table was above the base of the tank excavation pit
at the time of testing and the method by which tnis
determination was made. If it is above the base, the
specific elevation of the water table shall be determined
and recorded in the test report.
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335-6-15-.17
(d) Automatic Tank Gauging. Equipment for automatic
tank gauging that tests for the loss of product and
conducts inventory control must meet the following
requirements:
1. The automatic product level monitor test can
detect a 0.2 gallon per hour leak rate from any portion of
the tank that routinely contains product; and
2. Inventory control (or another test of equivalent
performance) is conducted in accordance with the
requirements of Rule 335-6-15-.17(a).
(e) Vapor Monitoring. Testing or monitoring for
vapors within the soil gas of the excavation zone must meet
the following technical and procedural requirements:
1. A vapor monitoring plan with any required plans
and specifications, must be submitted to the Department for
review by the Department. The plan must be sufficient to
demonstrate compliance with the requirements of
subparagraphs 2. through 8. below or modifications may be
required by the Department.
2. The materials used as backfill are sufficiently
porous (e.g., gravel, sand, crushed rock) to readily allow
diffusion of vapors from releases into the excavation area;
3. The stored regulated substance, or a tracer
compound placed in the tank system, is sufficiently
volatile (e.g., gasoline) to result in a vapor level that
is detectable by the monitoring devices located in the
excavation zone in the event of a release from the tank.
The Department may require testing of a vapor monitoring
system with a tracer compound where a system's reliability
is in question.
4. The measurement of vapors by the monitoring device
is not rendered inoperative by the groundwater, rainfall,
or soil moisture or other known interferences so that a
release could go undetected for more than 30 days;
5. The level of background contamination in the
excavation zone will not interfere with the method used to
detect releases from the UST system based upon information,
to include volatile hydrocarbon concentrations, collected
throughout the excavation zone where this method is
proposed for use.
6. The vapor monitors and vapor monitoring wells are
designed and operated in a manner sufficient to: detect
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335-6-15-.17
any significant increase in concentration above background
of the regulated substance stored in the tank system, a
component or components of that substance, or a tracer
compound placed in the tank system, and provide a vapor
sample to the vapor monitor that is representative of the
concentration in the excavation zone. Construction details
shall comply with subparagraphs 7. through 13. below.
7. The well casing shall be constructed of a material
which is compatible with the substance storedj and which
has sufficient strength to prevent structural failure.
8. The well casing shall be a minimum of 2 inches in
diameter and shall be large enough for the chosen
monitoring device to be installed or operated properly in
the well. A low permeability backfill may require the use
of larger diameter casing.
9. The length and slot size of the slotted portion of
the casing should be sufficient to obtain a representative
vapor sample in accordance with the depth of excavation
zone and site hydrogeology.
10. The well screen should be surrounded by a clean
filter pack which allows for passage of vapors while
preventing passage of materials which could clog the well
screen. The filter pack should extend 1 to 2 feet above
the well screen.
11. An annular seal shall extent up from the top of
the filter pack for 1 to 2 feet.
12. The well annulas shall be grouted from the top of
the bentonite to the ground surface.
13. Monitoring wells shall have a watertight cap or
enclosure at the ground surface.
14. In the UST excavation zone, the site is assessed
to ensure compliance with the requirements in subparagraphs
(e)2. through 5. of this rule and to establish the number
and positioning of monitoring wells that will detect
releases within the excavation zone from any portion of the
tank that routinely contains product;
15. Vapor monitoring wells are clearly marked with
the wording "NOT FOR DELIVERIES" or other sufficient
language and locked to avoid unauthorized access and
tampering. Monitoring wells which are located in an area
subject to traffic must be equipped with enclosures which
will not be damaged by normal traffic.
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335-6-15-.17
16. In the event of permanent closure of the UST
system, all monitoring wells shall be closed according to a
method acceptable to the Department, unless otherwise
directed by the Department.
17. If a monitoring well is determined to be
improperly constructed, closure may be required according
to a method acceptable to the Department.
(f) Groundwater Monitoring. Testing or monitoring
for liquids on the groundwater must meet the following
technical and procedural requirements:
1. A groundwater monitoring plan with any required
?lans and specifications, must be submitted for review,
he plan must be sufficient to demonstrate that the
requirements of 2. through 20. of this subparagraph will be
complied with or modifications may be required by the
Department.
2. The regulated substance stored is immiscible in
water and has a specific gravity of less than one;
3. The level of background contamination in or near
the excavation zone will not interfere with the method used
to detect releases frpm the UST system based upon
information collected throughout the excavation zone and in
the proposed area of well placement if not in the
excavation zone.
4. Groundwater is never more than 20 feet from the
ground surface and the hydraulic conductivity of the
soil(s) between the UST system and the monitoring wells or
devices is not less than 0.01 cm/sec (e.g., the soil should
consist of gravels, coarse to medium sands, coarse silts or
other permeable materials);
5. Monitoring wells used for the purpose of release
detection by groundwater monitoring shall be constructed
according to the requirements of 6. through 15. and 20.
below;
6. The well casing shall be a minimum of 2 inches in
diameter when used for release detection, but shall be 4
inches in diameter if installed for corrective action. All
wells shall be constructed with only threaded connections
between sections;
7. The well casing shall be constructed of a material
which is compatible with the substance stored; and which
has sufficient strength to prevent structural failure;
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335-6-15-.17
8. The well casing shall be slotted from the bottom
to at least two feet above the normal annual high water
table where the depth to water will allow, and shall be
designed to prevent migration of natural soils or filter
pack into the well and to allow entry of a regulated
substance on the water table into the well under both high
and low groundwater conditions.
9. The well casing shall extend at least five feet
below the water level at the time of drilling but no deeper
than 25 feet;
10. The well annulus shall be backfilled with an
appropriate clean filter pack adjacent to the slotted
casing;
11. An annular seal shall extend from the top of the
filter pack for 2 to 5 feet, where the depth to water will
al Low;
12. The well annulus shall be grouted from the top of
the bentonite seal to the ground surface;
13. Monitoring wells shall have a watertight
enclosure or cap with a grouted collar at the ground
surface;
14. Monitoring wells shall be developed upon drilling
until the water is clear and relatively sand free by
overpumping, bailing, or surging with compressed air;
15. Monitoring wells shall be as close to the
excavation zone as is technically feasible. If a
monitoring well is located within the excavation zone, the
base of the excavation zone shall not be penetrated.
16. If a continuous monitoring device is not used,
manual monitoring shall consist of removal of fluid from
the well, using a bailer, or a sampler of similar design.
The fluid shall be taken from the surface of the water
table. The fluid shall:
(i) Be poured into a clean, clear glass container
kept for the purpose, and examined for signs of an oily
layer or odor of pollutant; or
(ii) Be tested at the site; or
(iii) Be sent to a laboratory and tested.
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335-6-15-.17
17. A monitoring well must contain at least 6 inches
of water or a sufficient depth to allow a sample to be
obtained using a sampler selected in accordance with
subparagraph Cf)15. of this rule. If this requirement
cannot be met for more than 30 days, the Department may
require the monitoring well to be replaced, or another
method of monitoring to be proposed to the Department for
review.
18. The continuous monitoring devices or manual
methods used can detect the presence of at least one-eighth
of an inch of free product on top of the groundwater in the
monitoring wells;
19. Within and immediately below the UST system
excavation zone, the site is assessed to ensure compliance
with the requirements in subparagraphs (f)2. through 15.
above and to establish the number and positioning of
monitoring wells or devices that will detect releases from
any portion of the UST system that routinely contains
product. This is to include an evaluation of the direction
of the groundwater gradient at a site.
20. Monitoring wells are clearly marked with the
wording "NOT FOR DELIVERIES" or other sufficient language
and locked to avoid unauthorized access and tampering.
Monitoring wells which are located in an area subject to
traffic must be equipped with enclosures which will not be
damaged by normal traffic.
21. In the event of permanent closure of the UST
system, all monitoring wells shall be closed according to a
method acceptable to the Department.
22. If a monitoring well is determined by the
Department to be improperly constructed, closure may be
required according to a method acceptable to the Department.
23. Existing groundwater monitoring wells which were
completed prior to (effective date of this chapter) will be
authorized for continued use if the Department determines
that the minimum criteria of the federal UST regulations
for monitoring wells are satisfied and the existing wells
do not pose a threat of groundwater contamination due to
poor construction.
(g) Interstitial Monitoring. Interstitial monitoring
between the UST system and I secondary barrier immediately
around or beneath it may be used, but only if the system is
designed, constructed and installed to detect a leak from
15-37
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335-6-15-.17
any portion of the tank that routinely contains product and
also meets one of the following requirements:
1. For double-walled UST systems, the sampling or
testing method can detect a release through the inner wall
in any portion of the tank that routinely contains product;
2. For UST systems with a secondary barrier within
the excavation zone, the sampling or testing method used
can in the determination of the Department, detect a
release between the UST system and the secondary barrier;
3. The secondary barrier around or beneath the UST
system consists of artificially constructed materLal that
is sufficiently thick and impermeable (at least 10"° cm/sec
for the regulated substance stored) to direct a release to
the monitoring point and permit its detection;
4. The barrier is compatible with the regulated
substance stored so that a release from the UST system will
not cause a deterioration of the barrier allowing a release
to pass through undetected;
5. For cathodically protected tanks, the secondary
barrier must be installed so that it does not interfere
with the proper operation of the cathodic protection system;
6. The groundwater, soil moisture, or rainfall will
not render the testing or sampling method used inoperative
so that a release could go undetected for more than j0 days;
7. The site is assessed to ensure that the secondary
barrier is always above the groundwater and not in a
25-year flood plain, unless the barrier and monitoring
designs are for use under such conditions; and,
8. Monitoring wells are clearly marked with the
wording "NOT FOR DELIVERIES" or other sufficient language
and locked to avoid unauthorized access and tampering; and
when located in areas which are subject to traffic must be
equipped with enclosures which will not be damaged by
normal traffic.
9. Monitoring wells extend to within 6 inches of the
secondary barrier but shall not contact the barrier;
10. For tanks with an internally fitted liner, an
automated device can detect a release between the inner
wall of the tank and the liner, and the liner is compatible
with the substance stored.
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335-6-15-.18
(h) Other methods. Any other type of release
detection method, or combination of methods, can be used if:
1. It can detect a 0.2 gallon per hour leak rate of a
release of 150 gallons within a month with a probability of
detection of 0.95 and a probability of false alarm of 0.05;
or
2. The Department may approve another method if the
owner and operator can demonstrate that the method can
detect a release as effectively as any of the methods
allowed in subparagraphs (c) through (h) above. In
comparing methods, the Department shall consider the size
of release that the method can detect and the frequency and
reliability with which it can be detected. If the method
is approved, the owner and operator must comply with any
conditions imposed by the ADEM on its use to ensure the
protection of human health and the environment.
Statutory Authority: Code of Alabama 1975 §22-36-3.
Effective (Author): April 5~i 1989; tSonja Massey).
335-6-15-.18 Methods Of Rel ease Detection For Piping.
Each method of release detection for piping used to
meet the requirements of Rule 335-6-15-.15 must be
conducted in accordance with the following:
(a) Automatic line leak detectors. Methods which
alert the operator to the presence ot a Teak by restricting
or shutting off the flow of regulated substances through
piping or triggering an audible or visual alarm may be used
only if they detect leaks of 3 gallons per hour at 10
pounds per square inch line pressure within 1 hour. An
annual test of the operation of the leak detector must be
conducted in accordance with the manufacturer's
requirements.
(b) Line tightness testing. A periodic test of
piping may be conducted only IT it can detect a 0.1 gallon
per hour leak rate at one and one-half times the operating
pressure.
(c) Applicable tank methods. Any of the methods in
Rule 335-b-15-. I /(e) through (h) may be used if they are
designed to detect a release from any portion of the
underground piping that routinely contains regulated
substances.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, iy«9; (Sonja Massey).
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335-6-15-.20
335-6-15-.19 Release Detection Recordkeeping.
All UST system owners and operators must maintain
records in accordance with Rule 335-6-15-.13 demonstrating
compliance with all applicable requirements of this
chapter. These records must include the following:
(a) All written performance claims pertaining to any
release detection system used, and the manner in which
these claims have been justified or tested by the equipment
manufacturer or installer, must be maintained for 5 years
from the date of installation;
(b) The results of any sampling, testing, or
monitoring must be maintained for at least 1 year except
that the results of tank tightness testing conducted in
accordance with Rule 335-6-15-.17(c) must be retained until
the next test is conducted; and
(c) Written documentation of all calibration,
maintenance, and repair of release detection equipment must
be maintained for at least one year after the servicing
work is completed. Any schedules of required calibration
and maintenance provided by the release detection equipment
manufacturer must be retained for 5 years from the date of
installation.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, lytty; CSonja Massey).
335-6-15-.20 Reporting of Suspected Releases. Owners and
operators of UST systems must report suspected releases to
the Department immediately upon discovery but in no case
later than 24 hours following discovery, and follow the
procedures in Rule 335-6-15-.22 for any of the conditions
identified in (a) through (c) below.
(a) The discovery by owners and operators or others
of released regulated substances at the UST site or in the
surrounding area including but not limited to the presence
of free or dissolved product or vapors in soils,
groundwater, basements, sewer and utility lines, nearby
surface water or a well contaminated with a regulated
substance.
(b) Unusual operating conditions observed by owners
and operators (including but not limited to the erratic
behavior of product dispensing equipment, the sudden loss
of product from the UST system, or an unexplained presence
of water in the tank), unless product dispensing equipment
15-40
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335-6-15- 22
is found to be defective but not leaking, and is
immediately repaired or replaced.
(c) Monitoring results from a release detection
method required under Rules 335-6-15-.15 and 335-6-15-.16
that indicate a release may have occurred unless:
1. The monitoring device is found to be defective,
and is immediately repaired, recalibrated or replaced, and
additional monitoring does not confirm the initial results;
or
2. In the case of inventory control, where the amount
of calculated loss for a month is less than or equal to
twice the sura of 1.0 percent of monthly flow-through plus
130 gallons, a second month of data does not confirm a loss
of 1.0 percent of monthly flow-through plus 130 gallons.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; (Sonja Massey).
335-6-15-.21 Investigation Due to Environmental Impacts.
When required "by the Department, owners and operators of
UST systems must follow the procedures in Rule 335-6-15-.22
to determine if the UST system is the source of
environmental impacts, which include but are not limited to
the discovery of regulated substances (such as the presence
of free or dissolved product or vapors in soils, basements,
sewer and utility lines, and nearby surface waters, or a
well contaminated with a regulated substance that has been
observed by the Department or brought to its attention by
another party.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; (Sonja Massey).
335-6-15-.22 Release Investigation and Confirmation
Steps. Unless corrective action is initiated in accordance
with Rules 335-6-15-.24 through 335-6-15-.34, owners and
operators must immediately investigate and confirm all
suspected releases of regulated substances requiring
reporting under Rule 335-6-15-.20 within 7 days, or another
reasonable time period specified by the implementing
agency, using either the following steps or another
procedure approved by the Department:
(a) System test. Owners and operators must conduct
tests (according to the requirements for tightness testing
in Rules 335-6-15-.17(c) and 335-6-15-.18(b) that determine
whether a leak exists in the tank, or the attached delivery
piping, or both.
15-41
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335-6-15-.23
1. Owners and operators must repair, replace or
upgrade the UST system, and begin corrective action if the
test results for the system, tank, or delivery piping
indicate that a leak exists.
2. The Department may release an owner or operator
from any further investigation requirements if the tank
tests tight after minor repairs to that portion of the tank
that does not routinely contain product.
3. Further investigation is not required if the test
results for the system, tank, and delivery piping do not
indicate that a leak exists and if environmental
contamination is not the basis for suspecting a release.
4. Owners and operators must conduct a preliminary
investigation as described in subparagraph (b) of this rule
if the test results for the system, tank, and delivery
piping do not indicate that a leak exists but environmental
contamination is the basis for suspecting a release.
(b) Preliminary investigation. Owners and operators
must measure for the presence of a release where
contamination is most likely to be present at the UST
site. In selecting sample types, sample locations, and
measurement methods, owners and operators must consider the
nature of the stored substance, the type of initial alarm
or cause for suspicion, the type of backfill, the depth of
groundwater, and other factors appropriate for identifying
the presence and source of the release. Specific
requirements for a preliminary investigation are included
in Rule 335-6-15-.26.
(1) If in the determination of the Department the
results of the preliminary investigation indicate that a
release has occurred, owners and operators must and
initiate corrective action in accordance with Rules
335-6-15-.24 through 335-6-15-.34. The Department may
require a secondary investigation to be performed.
(2) If in the determination of the Department the
results of the preliminary investigation do not indicate
that a release has occurred, further investigation is not
required.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.23 Reporting and Cleanup of Spills and Overfills.
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335-6-15-.24
(1) Owners and operators of UST systems must contain
and immediately clean up a spill or overfill and report to
the Department within 24 hours, or another reasonable time
period specified by the Department, and begin corrective
action in accordance with Rules 335-6-15-.24 through
335-6-15-.34 in the following cases:
(a) Spill or overfill of petroleum that results in a
release to the environment that exceeds 25 gallons or
another reasonable amount specified by the Department, or
that causes a sheen on nearby surface water; and
(b) Spill or overfill of a hazardous substance that
results in a release to the environment that equals or
exceeds its reportable quantity under CERCLA (40 CFR 302).
(2) Owners and operators of UST systems must contain
and immediately clean up a spill or overfill of petroleum
that is less than 25 gallons or another reasonable amount
specified by the Department, and a spill or overfill of a
hazardous substance that is less than the reportable
quantity. If cleanup cannot be accomplished within 24
hours, or another reasonable time period established by the
Department, owners and operators must immediately notify
the Department.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; (Sonja Massey).
335-6-15-.24 Initial Release Response.
(1) Owners and operators of petroleum or hazardous
substance UST systems must, in response to a confirmed
release from the UST system, comply with the requirements
of Rules 335-6-15-.24 through 335-6-15-.34 except for USTs
excluded under Rule 335-6-15-.03(2) and UST systems subject
to corrective action requirements under Chapter 14 of the
ADEM Administrative Code.
(2) Upon confirmation of a release in accordance with
Rule 335-6-15-.22 or after a release is identified in any
other manner, owners and operators must perform the
following initial response actions within 24 hours of a
release or within another reasonable period of time
determined by the Department:
(a) Report the release to the Department
(notification by telephone is acceptable);
(b) Take immediate action to prevent any further
release of the regulated substance into the environment; and
15-43
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335-6-15-.25
(c) Identify and mitigate fire, explosion, and vapor
hazards.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.25 Initial Abatement Measures and Preliminary
Investigation.
(1) Upon confirmation of a release in accordance with
Rule 335-6-15-.22 or after a release is identified in any
other manner, unless directed to do otherwise by the
Department, owners and operators must perform the following
abatement measures:
(a) Remove as much of the regulated substance from
the UST system as is necessary to prevent further release
to the environment;
(b) Visually inspect any aboveground releases or
exposed below ground releases and prevent further migration
of the released substance into surrounding soils and
groundwater;
(c) Continue to monitor and mitigate any additional
fire and safety hazards posed by vapors or free product
that have migrated from the UST excavation zone and entered
into subsurface structures (such as sewers or basements);
(d) Remedy hazards posed by contaminated soils that
are excavated or exposed as a result of release
confirmation, site investigation, abatement, or corrective
action activities. If these remedies include treatment or
disposal of soils, the owner and operator must comply with
applicable ADEM and local requirements;
(e) Perform a preliminary investigation in accordance
with Rule 335-6-15-.26;
(f) Investigate to determine the possible presence of
free product, and if found, begin free product removal as
soon as practicable and in accordance with Rule
335-6-15-.27. Where free product is present, investigative
and corrective actions must be initiated in accordance with
Rules 335-6-15-.24 through 335-6-15-.34;
(g) Where dissolved groundwater contamination is
determined to occur, for example, the contamination of an
on-site well with a regulated substance, investigative and
corrective actions must be initiated in accordance with
Rules 335-6-15-.24 through 335-6-15-.34;
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335-6-15-- 26
(2) Within 20 days after release confirmation, or
within another reasonable period of time determined by the
Department, owners and operators must submit a report of
initial response to the Department summarizing the initial
abatement steps taken under paragraph (1) above, the nature
and estimated quantity of the regulated substance lost,
information regarding the presence of free or dissolved
product, tightness testing results where applicable, or any
other resulting information or data.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.26 Preliminary Investigation Requirements.
(1) Unless directed to do otherwise by the
Department, or under the conditions identified in paragraph
(2) of this rule, owners and operators required to perform
a preliminary investigation must obtain and provide
information about the site and the nature of the release,
including information gained while confirming the release
or completing the initial abatement measures in Rule
335-6-15-.25. This information must include, but is not
necessarily limited to the following:
(a) Type of surrounding population, e.g., urban,
rural, residential;
(b) Results of a well inventory within 1000 feet of
the site which includes the location, and where available,
information on the depth and elevation and ownership of
each well;
(c) Location of any public water supply wells which
are within 1 mile of the site;
(d) A description of the hydrogeologic environment,
including type and nature of geologic materials, location
of surface waters, surrounding land and water users, and
the location of all underground utilities, water lines,
sewers or other conduits;
(e) A determination of the uppermost aquifer and an
initial evaluation of the potential for hydraulic
interconnection with lower aquifers. This evaluation at
this stage may be made based upon the results of site soil
sampling and borings and available literature data.
(f) Results of soil sampling collected from the area
which is most likely to have been affected by a release of
a regulated substance.
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335-6-15-26
1. A sufficient number of soil samples shall be
collected to accurately represent the area and depths
affected by a release;
2. Soil sampling shall be performed to a depth which
adequately represents the zone most likely to have been
contaminated by a release.
3. Soil sampling shall be sufficient to determine if
free product is present on the water table.
(g) Where soils are encountered which have a total
petroleum hydrocarbon concentration of greater than 100 ppm
and such soils extend to within 5 feet of the seasonal high
water table, groundwater samples shall be collected and
analyzed at a minimum of one up-gradient and three
down-gradient locations unless directed to do otherwise by
the Department.
(2) Upon approval by the Department, the following
procedures may be used in satisfying the requirement for a
preliminary investigation or closure assessment when the
tank excavation pit is completely open and available for
representative sample collection. If the conditions
identified in (d)l. and 2. below cannot be met; however,
the preliminary investigation requirements of paragraph (1)
must be complied with, unless directed to do otherwise by
the Department.
(a) Soil samples shall be collected from the sides
and base of the tank pit. At least one sample shall be
collected from each side of the pit and at least one sample
from the pit bottom for every tank that was present in the
excavation. Side samples shall be collected from the
lowest one-third of the tank wall. One sample per 10
lineal foot shall be collected from the base of piping
trenches. Samples from the tank pit sides, base, and
piping trenches shall be representative of the area being
sampled.
(b) Analyze soil samples for the presence of total
petroleum hydrocarbons.
(c) Determine the elevation of the groundwater
table. Information on the elevation of the water table may
be obtained from a boring located adjacent to the tank pit
or from a nearby location. Water table elevation data may
also be obtained when topographical features provide
surface indications of the water table, and this data is
substantiated by literature values.
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335-6-15-.26
(d) If the conditions identified in 1. and 2. below
are met, the Department may consider the investigation to
be complete and no further action will be required. If the
conditions identified in 1. and 2. below cannot be met, the
Department may require additional investigative actions or
a preliminary investigation, in accordance with paragraph
(1) of this rule, to be conducted.
Total Petroleum
Hydrocarbon Depth to
Concentration Groundwater
1. 100 ppm or less for each sample 5 feet or more
below base of
tank excavation
2. 10 ppm or less for every sample No restrictions
(3) Monitoring wells must be constructed in a manner
acceptable to the Department or the Department may require
them to be properly closed. Except where
cross-contamination of aquifers is of concern, general
construction details for monitoring wells should conform to
the requirements of Rules 335-6-15-.17(f)6. through 8. and
10. through 14. and 20., and where cross-contamination is
of concern, monitoring well construction details must be
reviewed in advance by the Department. The Department may
require modification of proposed construction details.
(4) All samples shall be analyzed for parameters
which are appropriate to the nature of the stored substance
and according to the methods specified in Rule 335-6-15-. 35.
(5) Within 60 days of release confirmation, or
notification by the Department that a Preliminary
Investigation is required, under the conditions of
paragraph (1) of this rule the owners and operators must
submit the information collected in compliance with this
rule to the Department in a manner that demonstrates its
applicability and technical adequacy, or in a format and
according to a schedule required by the Department. If the
procedures under paragraph (2) of this rule apply, the
results of the investigation must be submitted within 45
days of release confirmation or notification by the
Department that an investigation is required.
(6) Preliminary investigation and closure site
assessments must be performed in accordance with accepted
geologic practices by a geologist or registered
professional engineer experienced in hydrogeologic
investigations.
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335-6-15-.27
(7) Upon review of the results of the Preliminary
Investigation, the Department may require a Secondary
investigation to be completed in accordance with Rule
335-6-15-.28.
(8) The Department may require additional sampling
and analyses to be performed if it is determined that the
number or location of samples, or methods used in the
analysis of such samples are not sufficient to characterize
the area and soil depths most likely to have been
contaminated by a release.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): Apri 1 5"i 1989; CSonja Massey) .
335-6-15-.27 Free Product Removal. At sites where
investigations indicate the presence of free product,
owners and operators must remove free product to the
maximum extent practicable as determined by the Department
while continuing, as necessary, any actions initiated under
Rules 335-6-15-.24 through 335-6-15-.26 or preparing for
actions required under Rules 335-6-15-.28 and
335-6-15-.29. In meeting the requirements of this section,
owners and operators must:
(a) Conduct free product removal in a manner that
minimizes the spread of contamination into previously
uncontaminated zones by using recovery and disposal
techniques appropriate to the hydrogeologic conditions at
the site, and that properly treats, discharges or disposes
of recovery byproducts in compliance with applicable local,
state and federal regulations;
(b) Use abatement of free product migration and
removal of free product in a reasonable period of time as a
minimum objective for the design of the free product
removal system;
(c) Handle any flammable products in a safe and
competent manner to prevent fires or explosions; and
(d) Unless directed to do otherwise by the
Department, prepare and submit to the implementing agency,
within 45 days after confirming a release, a free product
removal report that provides at least the following
information:
(1) The name of the person(s) responsible for
implementing the free product removal measures;
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335-6-15-.28
(2) The estimated quantity, type, and thickness of
free product observed or measured in wells, boreholes, and
excavat ions;
(3) The type of free product recovery system used;
(4) Whether any discharge will take place on-site or
off-site during the recovery operation and where this
discharge will be located;
(5) The type of treatment applied to, and the
effluent quality expected from, and discharge;
(6) The steps that have been or are being taken to
obtain necessary permits for any discharge; and
(7) The disposition of the recovered free product.
(e) The Department may require additional measures to
be taken to achieve free product recovery, if it is
determined that the objectives of paragraphs (a) through
(c) are not being accomplished.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; ("Sonja Massey).
335-6-15-.28 Secondary Investigation Requirements.
(1) When required in order to determine the full
lateral and vertical extent and location of: soils
contaminated by the release; the presence of free product;
and the presence and concentrations of dissolved product
contamination in the groundwater, the Department may
require owners and operators to conduct a secondary
investigation of the release site. This investigation must
include the surrounding area possibly affected by the
release if any of the following conditions exist:
(a) There is evidence that groundwater wells have
been affected by the release (e.g., as found during release
confirmation or previous corrective action measures;;
(b) Free product is found to need recovery in
compliance wi th Rule 335-6-15-. 27;
(c) There is evidence that contaminated soils may be
in contact with groundwater (e.g., as found during conduct
of the initial response measures or investigations required
under Rules 335-6-15-.24 through 335-6-15-.26; and
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335-6-15-.28
(d) The Department requests an investigation, based
on the potential effects of contaminated soil or
groundwater on nearby surface water and groundwater
resources.
(2) The investigations required by paragraph (1) of
this rule shall:
(a) Be sufficient to define the full lateral and
vertical extent of soil and groundwater contamination;
(b) Determine the rate and direction of pollutant and
groundwater migration through the use of piezometers and/or
monitoring wells;
(c) Include results of groundwater sampling and
analysis from monitoring wells at one background and a
minimum of three down-gradient locations. The location of
the down-gradient wells should take into consideration the
direction of groundwater flow and should be placed so as to
define the plume of contamination and the outer limits of
the plume of contamination.
(d) Include a determination of the uppermost aquifer
and an intial evaluation of the potential for hydraulic
interconnection with lower aquifers. This evaluation may
be made based upon the results of site soil sampling and
borings and available literature data but may also require
installation of wells into underlying aquifers. If this
becomes necessary proper well construction techniques must
be used to ensure that wells do not serve as conduits for
contamination of underlying aquifers.
(e) Include analytical results for soil and
groundwater samples for parameters which are appropriate to
the nature of the stored substance and according to methods
specified in Rule 335-6-15-.35.
(f) Provide sufficient information for the selection
and design of appropriate corrective actions.
(3) The Department may require additional sampling
and analyses to be performed if it is determined that the
number or location of samples, or methods used in the
analysis of such samples are not sufficient to define the
full lateral and vertical extent of soil and groundwater
contamination.
(4) Owners and operators must submit a plan of study
sufficient to accomplish the objective of paragraphs (l)
and (2) of this rule together with a schedule of
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335-6-15-.29
implementation. The owners and operators shall make any
modifications to the plan of study deemed necessary by the
Department.
(5) The plan of study must contain construction
details for monitoring wells. Monitoring wells must be
constructed in a manner acceptable to the Department or the
Department may require them to be properly closed. Except
where cross-contamination of aquifers is of concern,
general construction details for monitoring wells should
conform to the requirements of Rule 335-6-15-.17(f)6.
through 8. and 10. through 14. and 20. The Department may
require modification of proposed construction details.
(6) Owners and operators must submit the information
collected under paragraphs (1) through (3) of this rule
within the schedule submitted in (4) above or in accordance
with a schedule established by the Department.
(7) The secondary site investigation must be
performed in accordance with accepted geologic practices by
a geologist or registered professional engineer experienced
in hydrogeologic investigations.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.29 Corrective Action Plan.
(1) At any point after reviewing the information
submitted in compliance with Rules 335-6-15-.24 through
335-6-15-.28, the Department may require owners and
operators to submit additional information or to develop
and submit a corrective action plan for responding to
contaminated soils and groundwater. If a plan is required,
owners and operators must submit the plan according to a
schedule and format established by the Department.
Alternatively, owners and operators may, after fulfilling
the requirements of Rules 335-6-15-.24 through
335-6-15-.28, choose to submit a corrective action plan for
responding to contaminated soil and groundwater. In either
case, owners and operators are responsible for submitting a
plan that provides for adequate protection of human health
and the environment as determined by the Department, and
must modify their plan as necessary to meet the
requirements of the Department for achieving this standard.
(2) The corrective action plan must:
(a) Address the full lateral and vertical extent of
soil and groundwater contamination;
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335-6-15-.29
(b) Address mitigation of soil contamination either
through soil removal, or treatment in place, or another
method which is determined by the Department to be no less
protective of health and the environment, to standards
identified in Rule 335-6-15-.30 or 335-6-15-.32;
(c) Provide for removal of free product in an
effective and timely manner;
(d) Provide for treatment of dissolved groundwater
contamination in an effective and timely manner to
standards identified in Rule 335-6-15-.31 or 335-6-15-.32;
(e) Provide a rationale for selection of the proposed
corrective actions and design criteria which address such
items as equipment selection, flow rates and pumping rates;
(f) Address measures necessary to meet local, state
or federal requirements for control of surface or air
discharges or disposal of soil;
(g) Include a proposed schedule of implementation and
monitoring plan.
(3) The Department will approve the corrective action
plan only when satisfied that implementation of the plan
provides for measures considered adequate to protect human
health, safety, and the environment. In making this
determination, the Department should consider the following
factors as appropriate:
(a) The physical and chemical characteristics of the
regulated substance, including its toxicity, persistence,
and potential for migration;
(b) The hydrogeologic characteristics of the facility
and the surrounding area;
(c) The findings of the preliminary and secondary
investigations;
(d) The proximity, quality, and current and future
uses of nearby surface water and groundwater;
(e) The potential effects of residual contamination
on nearby surface water and groundwater;
(f) An exposure assessment conducted in accordance
with Rule 335-6-15-.33(2); and
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335-6-15-.30
(g) Any information assembled in compliance with this
subpart.
(4) Upon approval of the corrective action plan or as
directed by the Department, owners and operators must
implement the plan, including modification to the plan made
by or required to be made by the Department. They must
monitor, evaluate, and report the results of implementing
the plan in accordance with a schedule and in a format
established by the Department.
(5) If at any time, the Department determines that
the implementation of corrective actions are not achieving
adequate protection of human health and the environment,
the Department may require additional measures to be taken.
(6) Owners and operators shall continue
implementation of the corrective action plan until released
in writing from this responsibility by the Department.
(7) Owners and operators may, in the interest of
minimizing environmental contamination and promoting more
effective cleanup, begin cleanup of soil and groundwater
before the corrective action plan is approved provided that
they:
(a) Notify the Department of their intention to begin
cleanup;
(b) Comply with any conditions imposed by the
Department, including halting cleanup or mitigating adverse
consequences from cleanup activities; and
(c) Incorporate these self-initiated cleanup measures
in the corrective action plan that is submitted to the
Department for approval.
(8) Upon conclusion of investigative monitoring, or
corrective actions at a site, the Department may require
any or all monitoring wells to be properly closed.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.30 Corrective Action Limits for Soils. Unless
the conditions ident ified in Rule 335-6-15-.32 are
satisfied, corrective action limits, CAL's, for soils shall
be as identified in subparagraphs (a) and (b) below.
(a) Corrective action limits for petroleum
contaminated soils shall be 100 parts per million total
15-53
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335-6-15-.32
petroleum hydrocarbons as determined by the applicable
method(s) of Rule 335-6-15-.35.
(b) Corrective action limits for soil for regulated
substances other than petroleum contaminants shall be as
established by the Department after review of any
information available to the Department related to the
health or environmental effects of a contaminant.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April IVtJy; ("Sonja Massey).
335-6-15-.31 Corrective Action Limits for Groundwater.
(1) Unless the conditions identified in Rule
335-6-15-.32 are satisfied, the corrective action limits,
CAL's, for contaminated groundwater shall be equivalent to
the Maximum Contaminant Levels applicable to primary state
or national drinking water regulations or Health Advisories
issued by the Office of Drinking Water of the U.S.
Environmental Protection Agency for all substances for
which these levels have been established; for substances
for which these levels have not been established, the
Department may establish a limitation which is based upon
information related to the health or environmental effects
of a contaminant.
(2) Maximum Contaminant Levels and Health Advisories
are subject to change. Therefore, the Department shall
maintain a current listing of Maximum Contaminant Levels
for state or national drinking water regulations and Health
Advisories for petroleum related contaminants, which shall
be available to the public.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.32 Alternate Corrective Action Limits.
Alternate CAL's may 5i established By the Department when
the requirements of (a) or (b) below are met.
(a) A demonstration is made to the satisfaction of
the Department that site-specific factors justify
development of an alternative and less stringent CAL.
Proposals for an alternate CAL must be submitted to the
Department for a determination and must include the
following:
1. A discussion of the present and future uses of an
affected or potentially affected aquifer or adjacent
surface waters with particular consideration of the
15-54
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335-6-15-.32
probability that the contamination is substantially
affecting, or will migrate to and substantially affect, an
aquifer which is used as a public or private source of
potable water. Contaminant transport models may be used to
evaluate contaminant migration potential;
2. The technical and economic feasibility of
achieving corrective action limits based on a review of
reasonably available technology and costs;
3. Individual site characteristics relevant to the
proposal which may include ambient concentrations of
contaminants up-gradient of a site.
4. The results of a risk assessment performed
according to Rule 335-6-15-.33 when required by the
Department.
(b) If, after full implementation of a corrective
action plan for the remediation of groundwater
contamination, the concentrations of dissolved contaminants
have levelled off, and a proposal for an alternate CAL is
submitted to the Department for determination. Levelling
off shall mean that the graph of the contaminant
concentration versus time fits a curve generally defined by
the equation C=Cf +C0e c, that the lower limb of the curve
is substantially linear, and the slope of the final portion
of the curve approaches zero. An indicator parameter
satisfactory to the Department shall be selected for
application to the curve. In the equation above, the
symbols are defined as follows:
1. C - contaminant concentration at time t;
2. Cf - coefficient representing the final
concentration which the curve approaches asymptotically;
3. C0 - coefficient representing the concentration
difference between the final concentration and the
concentration at time zero;
4. e - 2.718, the base of natural logarithms;
5. K - coefficient representing an exponential factor
which indicates how fast the concentration approaches Cf;
6. t - time in days from some fixed starting point.
(c) The Department may approve the use of alternate
statistical methods for use in demonstrating that
15-55
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335-6-15-.33
contaminant concentrations are no longer decreasing with
application of continued groundwater treatment.
(d) To qualify for consideration under (b) or (c)
above, an analysis must be made of:
1. The technical feasibility of other proven
groundwater treatment techniques to further reduce the
contaminant levels at the site;
2. Costs and time frames involved to further reduce
contaminant levels employing the alternative methods
proposed; and
3. Effects on the water resource if contaminants
remain at existing levels.
4. The results of a risk assessment performed
according to the requirements of Rule 335-6-15-.33, when
required by the Department.
(e) If an alternate CAL is established by the
Department under the provisions of subparagraphs (a), (b),
(c) and (d) the Department may require a monitoring plan to
be established and carried out, the provisions of which
shall be acceptable to the Department.
335-6-15-.33 Risk Assessment.
(1) When an alternate CAL is to be requested, or when
otherwise required by the Department, a risk assessment
shall be performed and the findings of the assessment
submitted in a report to the Department. A risk assessment
shall utilize the results of either an exposure assessment,
a toxicity assessment or both as may be required by the
Department, to characterize cumulative risks to an affected
population and the environment from contaminants found in
soil or groundwater. Based on contaminant levels presently
found at the site, a risk characterization shall be
performed which considers:
(a) Risks to human health and safety from the
contamination;
(b) Effects on the public welfare from exposure to
the contamination; and
(c) Environmental risks in areas which are, or will
be, ultimately affected by the contamination.
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335-6-15-.34
(2) Exposure Assessment. An exposure assessment
shall identif y routes by which receptors may be exposed to
contaminants and shall estimate contaminant levels to which
receptors may be exposed. The exposure assessment should:
(a) Identify contaminant concentrations found at the
site;
(b) Identify background contaminant concentrations
found at the site and in the aquifer as a whole;
(c) Identify potential exposure routes;
(d) Identify potential receptors for each exposure
route; and
(e) Estimate or calculate expected contaminant
concentrations to which actual or potential receptors may
be exposed.
(3) Toxicity Assessment. A toxicity assessment shall
determine human health and environmental criteria based on
information from scientific literature for contaminants
found at the site. The criteria shall be developed for
applicable exposure routes identified in the exposure
assessment which may include:
(a) Potable water exposure route for ingestion,
dermal contact, and inhalation of vapors and mists;
(b) Non-potable domestic water exposure route for
dermal contact, inhalation of vapors and mists, ingestion
of food crops irrigated with such water, lawn watering,
ingestion by pets and livestock, and other related
exposures ;
(c) Soil exposure route for ingestion, dermal
contact, inhalation, and ingestion by humans or animals of
food crops grown in contaminated soils; and
(d) Non-potable surface water exposure route for
prevention of adverse effects on human health or the
environment. Adverse effects on aquatic or marine biota
(including any bio-accumulative effects in the food chain),
on the designated use of the resource, and on humans
(through dermal contact while using the resource for
recreational purposes) should be considered.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): Apri 1 5"i 1989; CSonja Massey) .
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335-6-15-.35
335-6-15-.34 Public Participation.
(1) For each confirmed release that requires a
corrective action plan, the Department must provide notice
to the public by means designed to reach those members of
the public directly affected by the release and the planned
corrective action. This notice may include, but is not
limited to, public notice in local newspapers, block
advertisements, public service announcements, publication
in a state register, letters to individual households, or
person contacts by field staff.
(2) The Department must ensure that site release
information and decisions concerning the corrective action
plan are made available to the public for inspection upon
request.
(3) Before approving a corrective action plan, the
Department may hold a public meeting to consider comments
on the proposed corrective action plan if there is
sufficient public interest, or for any other reason.
(4) The Department must give public notice that
complies with paragraph (1) above if implementation of an
approved corrective action plan doe snot achieve the
corrective action limits established in accordance with
Rules 335-6-15-.30 through 335-6-15-.32 and termination of
that plan is under consideration by the Department.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April b, iyuy; CSonja Massey).
335-6-15-.35 Analytical Requirements. Soil and
groundwater samples collected under the requirements of
this chapter shall be analyzed according to the methods
presented in this rule, as directed by the Department.
(a) Analysis of soils. Analysis of soils for
petroleum contaminants shall Be" performed for the following
parameters according to the type of petroleum product
causing the contamination:
1. Total petroleum hydrocarbons
2. Benzene, ethyl benzene,
toluene and total xylenes
3. Lead
Standard Method 503
EPA Method 9071
EPA Method 5030 or
3810, followed by EPA
Method 8020 or 8240
EPA Method 239.2
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335-6-15-.35
(b) Gasoline analytical group. Analysis of
groundwater or surtace waters required Ey this chapter for
petroleum contaminants of this group shall be performed for
the following parameters according to the type of petroleum
product causing the contamination.
1. Volatile organic halocarbons
(Including priority
pollutant compounds)
2. Benzene, ethyl benzene
toluene and total xylenes
3. 1,2-Dibromoethane
4. Lead
(c)
Kerosene Analytical
EPA Method 601
EPA Method 602 or 624
EPA Method 504.1
EPA Method 239.2
Group. Analysis
of
groundwater or surtace waters required £y this chapter for
petroleum contaminants of this group shall be performed for
the following parameters according to the type of petroleum
product causing the contamination.
Kerosene, diesel and jet fuels are included in this
group
Polynuclear aromatic
hydrocarbons (PAH)
(Including 15 priority
pollutant PAH's plus
2-methylnaphthalene and
1-methylnaphthalene)
EPA Method 610 or 625
2.
3.
Benzene, ethyl
toluene and total
Volat ile
halocarbons
priori ty
compounds)
4. 1,2-Dibromoethane
benzene,
xylenes
organics
(Including
pollutant
EPA Method 602 or 624
EPA Method 601
EPA Method 504.1
5. Lead
EPA Method 239.2
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335-6-15-.36
(d) Monitoring of soil or groundwater for other than
petroleum related regulated substances shall be according
to established EPA analytical methods, where applicable.
(e) Where the results of initial analyses of soil or
groundwater do not indicate the presence of a contaminant
listed in subparagraphs (a) through (c) above, or indicate
that the presence of the contaminant is due to an ambient
concentration, the Department may waive requirements for
further testing for that contaminant.
(f) The Department may approve additional methods for
the monitoring or investigation of regulated substances
which have been released to soils, groundwaters or surface
waters of the state.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.36 Temporary Closure.
(1) When an UST system is temporarily closed, owners
and operators must continue operation and maintenance of
corrosion protection in accordance with Rule 335-6-15-.10,
and any release detection in accordance with Rules
335-6-15-.14 through 335-6-15-.19. Rules 335-6-15-.20
through 335-6-15-.25 must be complied with if a release is
suspected or confirmed. However, release detection is not
required as long as the UST system is empty. The UST
system is empty when all materials have been removed using
commonly employed practices so that no more than 2.5
centimeters (one inch) of residue, or 0.3 percent by weight
of the total capacity of the UST system, remain in the
system.
(2) When an UST system is temporarily closed for 3
months or more, owners and operators must also comply with
the following requirements:
(a) Leave vent lines open and functioning; and
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335-6-15-.37
(b) Cap and secure all other lines, pumps, manways,
and ancillary equipment.
(c) When an UST system is temporarily closed for more
than 12 months, owners and operators must permanently close
the UST system if it does not meet either performance
standards in Rule 335-6-1506 for new UST systems or the
upgrading requirements in Rule 335-6-15-07, except that
the spill and overfill equipment requirements 3o not have
to be met. Owners and operators must permanently close the
substandard UST systems within 90 days from the end of this
12-month period in accordance with Rule 335-6-15-.37
through 335-6-15-.AO, unless the Department provides an
extension of the 12-month temporary closure period. Owners
and operators must complete a site assessment in accordance
with Rule 335-6-15-.26 before such an extension can be
applied for.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; tSonja Massey).
335-6-15-.37 Permanent Closure and Changes-In-Service.
(1) At least 30 days before beginning either
permanent closure or a change-in-service under paragraph
(2) and (3) below, or within another reasonable time period
determined by the Department, owners and operators must
notify the Department of their intent to permanently close
or make the change-in-service, and the method of proposed
closure unless such action is in response to corrective
action. The required assessment of the excavation zone
under Rule 335-6-15-.38 must be performed after notifying
the Department but before completion of the permanent
closure or change-in-service. Upon completion, a notice of
final closure or change-in-service must be submitted to the
Department.
(2) To permanently close a tank, owners and operators
must empty and clean it by removing all liquids and
accumulated sludges. All tanks taken out of service
permanently must also be either removed from the ground or
filled with an inert solid material. All lines, manways,
and or other connections must be capped or closed.
(3) Continued use of an UST system to store a
non-regulated substance is considered a change-in-service.
Before a change-in-service, owners and operators must empty
and clean the tank by removing all liquid and accumulated
sludge and conduct a site assessment in accordance with
Rule 335-6-15-.38.
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335-6-15-.38
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; ("Sonja Massey).
335-6-15-.38 Site Closure or Change-In-Service Assessment.
(1) Before permanent closure or a change-in-service
is completed, owners and operators must measure for the
presence of a release where contamination is most likely to
be present at the UST site according to procedures which
are acceptable to the Department. In selecting sample
types, sample locations, and measurement methods, owners
and operators must consider the method of closure, the
nature of the stored substance, the type of backfill, the
depth to groundwater, and other factors appropriate for
identifying the presence of a release. A report of the
assessment findings shall be submitted to the Department
within 45 days of initiating the closure or the
change-in-service. The assessment requirements of this
paragraph are satisfied if the requirements of Rule
335-6-15-. 26(1) (f) and (g) or (2) are satisfied or one of
the external release detection methods allowed in Rule
335-6-15-. 17 (e) and (f) and Rule 335-6-15-.18 have been
routinely used and operated in accordance with the
requirements in Rules 335-6-15-.17 and 335-6-15-.18 at the
time of closure, and indicates no release has occurred.
(2) If contaminated soils, contaminated groundwater,
or free product as a liquid or vapor is discovered under
paragraph (1) above, or by any other manner, owners and
operators must begin corrective action in accordance with
Rules 335-6-15-.24 through 335-6-15-.34.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.39 Applicability to Previously Closed UST
Systems. When directed by the Department, the owner and
operator of an UST system permanently closed before the
effective date of this rule must assess the excavation zone
and close the UST system in accordance with Rules
335-6-15-.37 and 335-6-15-.38 if releases from the UST may,
in the judgment of the Department, pose a current or
potential threat to human health and the environment.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; ("Sonja Massey).
335-6-15-.40 Closure Records. Owners and operators must
maintain records In accordance with Rule 335-6-15-.13 that
are capable of demonstrating compliance with closure
requirements under this Rules 335-6-15-.36 through
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335-6-15-.42
335-6-15-.39. The results of the excavation zone
assessment required in Rule 335-6-15-.38 must be submitted
to the Department and be maintained for at least 3 years
after completion of permanent closure or change-in-service
in one of the following ways:
(a) By the owners and operators who took the UST
system out of service;
(b) By the current owners and operators of the UST
system site.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.41 Alternate or Temporary Drinking Water
Source. Where an owner or operator is re sponslbie tor
polluting a drinking water source beyond applicable
standards, or where no standard exists, such standard as
the Director shall determine, the Department may require
the owner or operator to provide an alternate or temporary
drinking water source to any person deprived of drinking
water.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5~j 1989; ("Sonja Massey).
335-6-15-.42 Availability to Public of Records, Reports or
Information. Any records, reports, or information obtained
under this chapter shall be available to the public; except
that upon a showing satisfactory to the Department by any
person that records, reports or information, or a
particular part thereof to which the department has access
under this Chapter if made public, would divulge production
or sales figures or methods, processes or production unique
to such person or would otherwise tend to affect adversely
the competitive position of such person by revealing trade
secrets, the Department shall consider such record, report,
or information or particular portion thereof,
confidential. Nothing in this paragraph shall be construed
to prevent disclosures of such report, record, or
information to federal or state representatives as
necessary for purposes of administration of any federal or
state laws or when relevant to proceedings under this
chapter. Information concerning the presence or
concentration of substances in waters shall not be
considered confidential by the Department (Acts 1988, No.
88-537, § 8.)
Statutory Authority: Code of Alabama 1975, §22-36-8.
Effective (Author): April 5, 19i59; ("Sonja Massey).
15-63
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335-6-15-.47
335-6-15-.43 Access to Records. Any owner or operator of
an underground storage tank shall upon request of a duly
authorized representative of the Department, permit the
representative, at all reasonable times, access to all
records concerning the storage of regulated substances and
permit the representative to copy said records.
Statutory Authority: Code of Alabama 1975, §22-36-4.
Effective (Author): April 5, T9F9~i CSonja Massey).
335-6-15-.44 Entry and Inspection of Facilities. Any
owner or operator of an underground storage tank shall upon
request of a duly authorized representative of the
Department, permit the representative to enter, at all
reasonable times, property and buildings where an
underground storage tank is located and allow the
representative to inspect facilities and equipment and to
conduct monitoring and sampling.
Statutory Authority: Code of Alabama 1975, §22-36-4.
Effective (Author): April 5, 19891 CSonja Massey).
335-6-15-.45 Underground Storage Tank Regulation Fee. Any
owner of an underground storage tank shal 1 pay I yearly
Underground Storage Tank Regulation Fee of not less than
$15.00 and not more than $30.00 per regulated tank per
year. The amount of the fee shall be determined annually
by the Director. Payment of the fee shall be due within 30
days of notification to the owner by the Department of the
amount of such fee.
Statutory Authority: Code of Alabama 1975, §22-36-5.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.46 Financial Responsibility for Petroleum UST
Owners and Operators. 5U CFK Part ZBTJ 2BU.90 through
280.112 is hereby adopted by reference. This rule sets
forth the amounts of financial responsibility required of
petroleum UST owners and operators and the mechanisms
allowed for satisfying these requirements. Copies of this
rule are available from ADEM. Charges for reproduction
apply.
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; CSonja Massey).
335-6-15-.47 Financial Responsibility for Hazardous
Substance UST Owners and Operators^
(Reserved)
15-64
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335-6-15-.48
Statutory Authority: Code of Alabama 1975, §22-36-3.
Effective (Author): April 5, 1989; ("Sonja Massey).
335-6-15-.48 Severability. If any paragraph,
subparagraph, provision, clause or portion of this chapter
is adjudged unconstitutional or invalid by a court of
competent jurisdiction, the remainder of this chapter shall
not be affected thereby.
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ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
Water Division-Water Quality Control
Chapter 335-6-16
Administrative Guidelines and Procedures for
the Alabama Underground Storage Tank
(AUST) Trust Fund
Table of Contents
335-6-16-.01 Purpose
335-6-16-.02 Definitions
335-6-16-.03 Applicability
335-6-16-.04 AUST Trust Fund Eligibility Requirements
335-6-16-.05 Loss and Restoration of AUST Trust Fund
Eligibility
335-6-16-.06 Annual AUST Trust Fund Fees and Special
Assessments
335-6-16-.07 Authorized ADEM Disbursements of AUST Trust
Funds
335-6-16-.08 Scope of AUST Trust Fund Coverage
335-6-16-.09 Requirements for AUST Trust Fund Coverage of
Response Action Costs
335-6-16-.10 Requirements for AUST Trust Fund Coverage of
Third Party Claims
335-6-16-.il AUST Trust Fund Obligations
335-6-16-.12 AUST Trust Fund Ineligible Costs
335-6-16-.13 Applications for Payment
335-6-16-.14 AUST Trust Fund Payment Procedures
335-6-16-.15 Approval of Response Actions Contractors
335-6-16-.16 Insufficient Funds
335-6-16-.17 Cost Recovery Allowed
335-6-16-.18 Adjustment of Limit of Owner or Operator's
Financial Responsibility
335-6-16-.19 Severability
335-6-16-.01 Purpose. This chapter is promulgated to
establish administrative guidelines and procedures to
determine the manner in which disbursements are made from
the Alabama Underground Storage Tank (AUST) Trust Fund and
to implement the purposes and objectives of the Alabama
Underground Storage Tank Trust Fund Act of 1988.
Statutory Authority: Code of Alabama 1975, §§22-35-1 et
seq.
Effective (Author): June 1, 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.02 Definitions. The following words and terms,
when used in this Chapter, shall have the following
meanings unless the context clearly indicates otherwise.
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335-6-16-•02
(a) "ADEM" means the Alabama Department of
Environmental Management.
(b) "Commission" means The Alabama Environmental
Management Commission.
(c) "Connected piping" means all underground piping
including valves, elbows, joints, flanges, and flexible
connectors attached to a tank system through which "motor
fuels" flow. For the purpose of determining how much
piping is connected to any individual LIST system, the
piping that joins two UST systems should be allocated
equally between them.
(d) "Consumptive use" with respect to heating oil
means consumed on the premises.
(e) "Department" means the Alabama Department of
Environmental Management.
(f) "Director" means the Director of the Alabama
Department of Environmental Management.
(g) "Eligible owner" means an owner or operator that
is in "Substantial Compliance" as that term is defined in
paragraph (ff) of this Rule.
(h) "Farm tank" is a tank located on a tract of land
devoted to the production of crops or raising animals,
including fish, and associated residences and
improvements. A farm tank must be located on the farm
property. "Farm" includes fish hatcheries, rangeland and
nurseries with growing operations.
(i) "Final judgement" means any judgement enforceable
in this State obtained by a third party in a third party
claim as may be agreed and consented to by the Director and
the affected parties thereto.
(j) "Flow-through process tank" is a tank that forms
an integral part of a production process through which
there is a steady, variable, recurring, or intermittent
flow of materials during the operation of the process.
Flow-through process tanks do not include tanks used for
the storage of materials prior to their introduction into
the production process or for the storage of finished
products or by-products from the production process.
(k) "Free product" refers to a motor fuel that is
present as a nonaqueous phase liquid (e.g., liquid not
dissolved in water).
16-2
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335-6-16-. 02.
(1) "Gathering lines" means any pipeline, equipment,
facility, or building used in the transportation of oil or
gas during oil or gas production or gathering operations.
(m) "Groundwater" means water below the land surface
in a zone of saturation.
(n) "Heating oil" means petroleum that is No. 1, No.
2, No. 4--light, No. 4--heavy, No. 5--light, No. 5--heavy,
and No. 6 technical grades of fuel oil; other residual fuel
oils (including Navy Special Fuel Oil and Bunker C) ; and
other fuels when used as substitutes for one of these fuel
oils. "Heating oil" is typically used in the operation of
heating equipment, boilers, or furnaces.
(o) "Hydraulic lift tanks" means a tank holding
hydraulic fluid for a closed-loop mechanical system that
uses compressed air or hydraulic fluid to operate lifts,
elevators, and other similar devices.
(p) "Liquid trap" means sumps, well cellars, and
other traps used in association with oil and gas
production, gathering, and extraction operations (including
gas production plants), for the purpose of collecting oil,
water, and other liquids. These liquid traps may
temporarily collect liquids for subsequent disposition or
reinjection into a production or pipeline stream, or may
collect and separate liquids from a gas stream.
(q) "Motor fuel" means petroleum or a petroleum-base
substance that is motor gasoline, aviation gasoline. No. 1
or No. 2 diesel fuel, or any grade of gasohol, and is
typically used in the operation of a motor engine.
(r) "Noncommercial purposes" with respect to motor
fuel means not for resale.
(s) "On the premises where stored" with respect to
heating oil means UST systems located on the same property
where the stored heating oil is used.
(t) "Operator" means any person in control of, or
having responsibility for, the daily operation of the UST
system.
(u) "Owner" means: in the case of an UST system in
use on November 8, 1984, or brought into use after that
date, any person who owns an UST system used for storage,
use, or dispensing of motor fuels; and in the case of any
UST system in use before November 8, 1984, but not longer
in use on that date, the present owner of the underground
16-3
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335-6-16-.02
storage tank and any person who owned such underground
storage tank immediately before the discontinuation of its
use. For the purposes of this chapter, the person who
registers the underground storage tank is, and shall be
considered the owner.
(v) "Person" means an individual, trust, firm, joint
stock company, federal agency, corporation, state,
municipality, commission, political subdivision of a state,
or any interstate body. "Person" also includes a
consortium, a joint venture, a commercial entity, and the
United States Government.
(w) "Pipe" or "Piping" means a hollow cylinder or
tubular conduit that is constructed of non-earthen
materials.
(x) "Pipeline facilities (including gathering lines)"
are new and existing pipe right-of-way and any associated
equipment, facilities, or buildings.
(y) "Reasonable cost" means that monetary amount or
range, as determined by the Department, which is
commensurate with a response action, where the Department's
determination is based on an evaluation of typical costs
expected for the particular response action under review,
with respect to the activities' scope and complexity.
(z) "Release" means any spilling, leaking, emitting,
discharging, escaping, leaching or disposing from an UST
into groundwater, surface water or subsurface soils.
(aa) "Residential tank" is a tank located on property
used primarily for dwelling purposes.
(bb) "Response Action" means any activity, including
evaluation, planning, design, engineering, construction,
and ancillary service, which is carried out in response to
any discharge, release, or threatened release of "motor
fuels".
(cc) "Response Action Contractor" means a person who
has been approved by the Department to carry out any
response action, including a person retained or hired by
such person to provide services relating to a response
action.
(dd) "Septic tank" is a water-tight covered
receptacle designed to receive or process, through liquid
separation or biological digestion, the sewage discharged
from a building sewer. The effluent from such receptacle
16-4
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335-6-16-.02
is distributed for disposal through the soil and settled
solids and scum from the tanks are pumped out periodically
and hauled to a treatment facility.
(ee) "Storm-water or wastewater collection system"
means piping, pumps, conduits, and any other equipment
necessary to collect and transport the flow of surface
water run-off resulting from precipitation, or domestic,
commercial, or industrial wastewater to and from retention
areas or any areas where treatment is designated to occur.
The collection of storm water and wastewater does not
include treatment except where incidental to conveyance.
(ff) "Substantial Compliance" shall mean that an
owner or operator of an underground storage tank has
registered that tank with the Department, has timely paid
all annual tank fees, has made a good faith effort to
comply with the requirements of this Chapter and Chapter
335-6-15 of the ADEM Administrative Code, has met the
financial responsibility requirements imposed by this
Chapter and shall have promptly notified the Director of
any third party claim or suit made against the owner or
operator.
(gg) "Surface impoundment" is a natural topographic
depression, man-made excavation, or diked area formed
primarily of earthen materials (although it may be lined
with man-made materials) that is not an injection well.
(hh) "Tangible net worth" means the tangible assets
that remain after deducting liabilities; such assets do not
include intangibles such as goodwill and rights to patents
or royalties. For purposes of this definition, "assets"
means all existing and all probable future economic
benefits obtained or controlled by a particular entity as a
result of past transactions.
(ii) "Tank" is a stationary device designed to
contain an accumulation of "motor fuels" and constructed of
non-earthen materials (e.g., concrete, steel, plastic) that
provide structural support.
(jj) "Third Party Claim" means any civil action
brought or asserted by any person against any owner or
operator of any underground storage tank for damages to
person or property which damages are the direct result of
the contamination of waters by "motor fuels" released
during operation of underground storage tanks covered under
this Chapter.
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335-O-16-.02
(kk) "Underground area" means an underground room,
such as a basement, cellar, shaft or vault, providing
enough space for physical inspection of the exterior of the
tanks situated on or above the surface of the floor.
(11) "Underground release" means any below ground
release.
(mm) "Underground storage tank" or "UST" means any
one or combination of tanks (including underground pipes
connected thereto) that is used to contain an accumulation
of motor fuels, and the volume of which (including the
volume of underground pipes connected thereto) is 10
percent or more beneath the surface of the ground. This
term does not include any:
1. Farm or residential tank of 1,100 gallons or less
capacity used for storing "motor fuel" for noncommercial
purposes;
2. Tank used for storing heating oil for consumptive
use on the premises where stored;
3. Septic tank;
4. Pipeline facility (including gathering lines)
regulated under:
(i) The Natural Gas Pipeline Safety Act of 1968 (49
U.S.C. App. 1671, et seq.), or
(ii) The Hazardous Liquid Pipeline Safety Act of 1979
(49 U.S. C. App. 2001, et seq.), or
(iii) State laws comparable to the provisions of law in
Subparagraph (i) or (ii) above:
5. Surface impoundment, pit, pond, or lagoon;
6. Storm-water or wastewater collection system;
7. Flow-through process tank.
8. Liquid trap or associated gathering lines directly
related to oil or gas production and gathering operations;
or
9. Storage tanks situated in an underground area
(such as a basement cellar, mine working, drift, shaft, or
tunnel) if the storage tank is situated upon or above the
surface of the floor.
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335-6-16-.03
10. Other tanks excluded by the administrator of the
United States Environmental Protection Agency; and
11. Piping connected to any of the above exclusions.
(nn) "UST system" or "Tank system" means an
underground storage tank, connected underground piping,
underground ancillary equipment, and_containment system, if
any.
(00) "Wastewater treatment tank" means a tank that is
designated to receive and treat an influent wastewater
through physical, chemical, or biological methods.
(pp) "Waters" means all waters of any river, stream,
water course, pond, lake, coastal, ground, or surface
waters wholly or partially within the state, natural or
art ificial.
Statutory Authority: Code of Alabama 1975, §§22-35-3
Effective (Author): June Tj 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.03 Applicability
(1) The requirements of this chapter apply to all
owners and operators of an UST system as defined in
335-6-16-.02 except as otherwise provided for in paragraph
335-6-16-.03(2) of this rule.
(2) The following UST systems are excluded from the
requirements of this chapter:
(a) State and federal government entities whose debts
and liabilities are the debts and liabilities of a state or
the United States are exempt from the requirements of this
chapter.
(b) Any UST system holding hazardous waste listed or
identified under Division 14 of the ADEM Administrative
Code, or a mixture of such hazardous wastes and motor fuels.
(c) Any wastewater treatment tank system that is part
of a wastewater treatment facility regulated under Chapter
335-6-5 or 335-6-6 of the ADEM Administrative Code.
(d) Equipment or machinery that contains motor fuels
for operational purposes such as hydraulic lift tanks and
electrical equipment tanks.
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335-6-16-.04
(e) Any UST system whose capacity is *10 gallons or
less.
(f) Any emergency spill or overflow containment UST
system that is expeditiously emptied after use.
(3) Eligible owners or operators are entitled to
reimbursement of reasonable costs and coverage for third
party claims from the AUST Trust Fund resulting from the
release of motor fuels from an UST only for releases that
were discovered and subsequently reported after September
30, 1988.
Statutory Authority: Code of Alabama 1975, §§22-35-1 et
seq.
Effective (Author): June 1, 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.04 AUST Trust Fund Eligibility Requirements.
Every owner or operator of an UST is required to establish
and maintain Trust Fund eligiblity in accordance with the
following requirements:
(a) Registration of tanks with the Department.
(b) Annual payment of AUST Trust Fund and Underground
Storage Tank Regulatory Fees for each UST until such time
as permanent closure requirements of Chapter 335-6-15 of
the ADEM Administrative Code are satisfied.
(c) The owner or operator remains in substantial
compliance for each UST.
(d) Every owner or operator of an UST is required to
maintain financial responsibility in the amount of $5000
per occurrence ($25,000 aggregate) or another amount if
required by the Commission, by any one or combination of
the following: insurance, guarantee, surety bond, letter
of credit or qualification as a self-insurer by
demonstration of a tangible net worth in the amount of
$25,000.
(e) The owner or operator shall maintain the
following records and submit or make them available to the
Department upon request.
1. Evidence of current financial responsibility for
$5,000 per occurrence ($25,000 aggregate) or other amount
as may be required by the Commission; or
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335-6-16-.05
2. Evidence of current ability to self-insure by
demonstrating net worth of $25,000; and
3. Any other records as may be required by the
Department.
(f) All records identified in subparagraph (e) above
shall be retained until one of the following is
accomplished:
1. Closure requirements of Chapter 335-6-15 of the
ADEM Administrative Code are satisfied;
2. Ownership of an UST, is transferred to a new
owner; or
3. Owner or operator is instructed otherwise by the
Department.
Statutory Authority: Code of Alabama 1975, §§22-35-5,
22-35-7
Effective (Author): June 1, 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.05 Loss and Restoration of AUST Trust Fund
Eligibility.
(1) If at the time of discovery of a release, the
Department determines that an owner or operator has failed
to establish or maintain AUST Trust Fund eligibility in
accordance with Rule 335-6-16-.04, response action costs
associated with that release are not eligible for coverage
by the AUST Trust Fund.
(2) If at any time the Department determines that an
owner or operator has failed to establish or maintain AUST
Trust Fund eligibility, the Department will provide notice
to the owner or operator.of such non-compliance. The owner
or operator shall have thirty (30) days from receipt of
such notice, or such other time period as the Department
may allow, to provide evidence of compliance with all AUST
Trust Fund eligibility requirements. If, after completion
of this time period, the owner or operator fails to resolve
the non-compliance, the Director shall issue a notice of
AUST Trust Fund ineligibility and enforcement actions
including penalty assessment may be initiated.
(3) An owner or operator that has been issued a
Notice of AUST Trust Fund ineligibility must resolve the
non-compliance to the satisfaction of the Department for
AUST Trust Fund eligibility to be restored. Within thirty
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335-6-16-.06
(30) days of resolution of the non-compliance the
Department will notify the owner or operator of the date
that AUST Trust Fund eligibility was restored. The AUST
Trust Fund will not cover investigative or corrective
action costs associated with a release which occurred prior
to the time that AUST Trust Fund eligibility was restored.
Statutory Authority: Code of Alabama 1975, §§22-35-5
Effective (Author) : June I~j 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.06 Annual AUST Trust Fund and Special Assessment
Fees.
(1) In order to participate in the liability
limitations and reimbursement benefits of the AUST Trust
Fund, an UST owner or operator shall pay an annual AUST
Trust Fund Fee. During the first year following the
effective date of these regulations, the fee shall be $100
per regulated tank. Thereafter, the Commission will set
annual fees the total of which shall not exceed $150 or be
reduced below $10 per regulated tank, unless the
unobligated balance of the AUST Trust Fund reaches
$10,000,000 at which time annual fees will abate. After
abatement, annual fees will be reiraposed when the
unobligated balance of the AUST Trust Fund reaches
$7,500,000.
(2) Each year UST owners or operators will be
notified by the Department of the amount of the required
AUST Trust Fund Fee which will be due within thirty (30)
days of the invoice date.
(3) To protect the financial integrity of the fund,
the Commission may make special assessments of AUST Trust
Fund Fees. However, the total fee shall not exceed $150
per regulated tank per year. Special assessment fees will
be due within thirty (30) days of the invoice date.
(4) The failure to pay AUST Trust Fund Fees within
the time prescribed by the Department shall make the owner
or operator of an UST liable for a late charge penalty in
an amount not to exceed $100 per tank for each day such
payment is delinquent and will result in the loss of Trust
Fund eligibility. The Director, for good cause shown, may
abate all or part of said late charge penalty.
Statutory Authority: Code of A1abama 1975, §§22-35-5
Effective (Author): June H 1989 (Sonja Massey and
Gregory Stephens)
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335-6-16-.07
335-6-16-.07 Authorized ADEM Disbursements of AUST Trust
Funds.
(1) Whenever in the Director's determination a
release of motor fuels may pose a threat to the environment
or the public health, safety or welfare, and the owner or
operator of the underground storage tank has been found to
be eligible for AUST Trust Fund coverage, the Department
shall, subject to the provisions of this Chapter, disburse
monies available in the fund to provide for:
(a) Investigation and assessment of sites
contaminated by a release of motor fuels in accordance with
the requirements of Chapter 335-6-15 of the ADEM
Administrative Code.
(b) The rehabilitation of sites contaminated by a
release of motor fuels, which may consist of clean-up of
affected soil and waters, using cost effective alternatives
that are technologically feasible and reliable, and that
provide adequate protection of the pubic health, safety and
welfare and minimize environmental damage, in accordance
with corrective action requirements of Chapter 335-6-15 of
the ADEM Administrative Code.
(c) The interim replacement and permanent restoration
of potable water supplies;
(2) Monies held in the Fund shall be disbursed for
making payments to third parties who bring suit relative to
an UST release against the Director, in his official
capacity as representative of the Fund, and the owner or
operator of an UST who is in substantial compliance as
stated in this Chapter, when such third party obtains a
final judgement in that action which is enforceable in this
State and the eligible owner or operator submits proof of
payment of the first $5,000.
(3) The cost of defending the Director by the
attorney general or those assistants employed by the
attorney general, in response to a third party liability
suit concerning an UST release, shall be recoverable from
the AUST Trust Fund.
(4) In addition to the legal costs referenced in
paragraph (3) above, costs incurred by the Department in
the administration of the provisions of this Chapter shall
also be charged to the AUST Trust Fund. The administration
costs shall be the Department's actual costs not to exceed
$400,000 per year. Administration costs are not considered
legal costs.
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335-6-16-.09
Statutory Authority: Code of Alabama 1975, §§22-35-4,
22-35-5, 22-35-9
Effective (Author): June 1, 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.08 Scope of AUST Trust Fund Coverage.
(1) The AUST Trust Fund will provide to eligible UST
owners or operators coverage for the' cost of response
actions and for compensation of third parties for bodily
injury and property damage resulting from accidental
releases arising from the operation of an UST which stores
motor fuels.
(2) The financial responsibility requirements for
eligible UST owners or operators for taking response
actions and compensation of third parties will be $5000 per
occurrence unless another amount is established by the
Commission.
(3) The monies expended from the AUST Trust Fund to
eligible UST owners or operators for response actions may
be disbursed only up to such sum as will cause the Resource
Conservation and Recovery Act, Subtitle 1, the Superfund
Amendments and Reauthorization Act of 1986, and other
federal laws governing disbursements of federal funds for
clean up and/or third party claims to come into effect.
(4) The indemnification limit of the AUST Trust Fund
with respect to satisfaction of third party claims shall be
that which is necessary to satisfy underground storage tank
owner financial responsibility requirements of Subtitle I
of the Resource Conservation and Recovery Act, U.S. Code,
or any regulations promulgated thereunder.
Statutory Authority: Code of Alabama 1975, §§22-35-4,
22-35-5, 22-35-7
Effective (Author): June 1, 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.09 Requirements for AUST Trust Fund Coverage of
Response Action Costs. 5n eligible owner or operator
conducting response actions is entitled to coverage of
reasonable costs from the AUST Trust Fund, subject to the
following provisions:
(a) Upon confirmation and reporting of a release in
accordance with the requirements of Rules 335-6-15-.20
through 335-6-15-.23 of the ADEM Administrative Code the
owner or operator shall select a contractor from the
Department's list of approved contractors, or upon approval
16-12
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335-6-16-.09
by the Department under the conditions identified in Rule
335-6-16-.15(5)and(6), may use the owner or operator's
personnel and/or equipment to accomplish all or part of an
investigation and necessary corrective action. If a
contractor is to be retained the Department must be
notified in writing of such a selection within ten (10)
days of reporting of a release. A contractual agreement
must be established between the owner or operator and the
contractor, and the Department must be provided a copy of
the contractual agreement. The owner or operator is
responsible for the first $5000 of response action costs,
or other such amount as may be set by the Commission, as
the owner's limit of individual responsibility.
(b) If initial release responses, abatement measures
and initial free product removal, conducted in accordance
with Rules 335-6-15-.22 through 335-6-15-.25 and
335-6-15-.27 of the ADEM Administrative Code, are required
to properly stabilize a site and prevent significant
continuing damage • to the environment or risk to human
health, and the cost of such required measures is expected
to exceed the individual limit of financial responsibility
established by the Commission, the owner, or the approved
response action contractor may contact the Department to
obtain verbal or written approval to allow additional
expenditures prior to the submittal of a cost proposal.
Additional expenditures may be authorized by the Department
up to a total of $20,000 which may be reimbursable from the
AUST Trust Fund to achieve site stabilization and immediate
protection of human health or the environment. Such
approval may be given following the actual expenditures if
immediate actions were necessary to protect human health or
the environment and Departmental personnel were
unavailable. In such a case, the Department must be
notified of the actions taken within twenty-four hours.
(c) Following completion of necessary site
stabilization actions as described in Subparagraph (b) of
this Rule, subsequent investigative and corrective actions
must be performed by approved contractors, or by owners or
operators approved by the Department to perform such
actions, and in accordance with the requirements of Rules
335-6-15-.25 through 335-6-15-.34 of the ADEM
Administrative Code. The contractor selection.
Departmental notification and contractural requirements as
described in subparagraph (a) of this Rule, relative to
approved contractors, will be applicable.
(d) Prior to initiating any of the response actions
identified in 1. through 5. below, unless otherwise
directed by the Department, a cost proposal shall be
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335-6-16-.09
submitted to the Department for conducting the proposed
response action. Cost proposals shall be submitted in
accordance with a format which shall be established by the
Department.
1. Preliminary Investigation (in accordance with Rule
335-6-15-.25 and 335-6-15-.26).
2. Free Product Removal (in accordance with Rule
335-6-15-.27).
3. Secondary Investigation and Development of
Corrective Action Plan (in accordance with Rule
335-6-15-.28 through 335-6-15-.34).
4. Implementation of Corrective Action Plan. (This
shall include the costs of: finalizing equipment design;
purchase of equipment and materials to be dedicated to the
site for corrective action.; installation and bringing to
operational status the corrective action system; operation
and maintenance costs of corrective action system for the
total projected time period in which the corrective action
system will be needed to comply with corrective action
limits of Chapter 335-6-15 of the ADEM Administrative Code).
5. Provision of alternate water supply.
(e) Upon review of a cost proposal for any of the
activities identified in (d) 1. through 5. above, the
Department may:
1. Accept the cost proposal and authorize work to be
initiated; or
2. Require a modification to or clarification of the
cost proposal if projected costs are not determined to be
reasonable.
(f) In addition to the above requirements of (c), (d)
and (e) of this Rule, the owner or operator shall upon
submittal of a cost proposal for a site investigation, also
submit an estimate of the total cost of remediation for the
site which shall be used solely for the purpose of the
Commission, the Department, and the Advisory Board in
projecting future funding requirements for the AUST Trust
Fund. The total estimated cost of remediation for a site
shall be updated by the owner or operator as necessary and
as more complete information regarding a site becomes
available.
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335-6-16-.09
(g) Upon acceptance of a cost proposal by the
Department, sufficient funds will be obligated from the
AUST Trust Fund for completion of the particular phase of
work which the cost proposal was submitted and
authorization will be provided for the initiation of the
proposed action. Obligation of funds shall be subject to
the availability of funds at the time of acceptance of the
cost proposal.
(h) Response actions performed prior to acceptance of
an associated cost proposal may not be eligible for
re-imbursement.
(i) If the costs of completing any of the response
actions of subparagraph (d) 1. through 5. is expected to
exceed the amount of an accepted cost proposal, an amended
cost proposal must be submitted and accepted to allow
additional funds to be obligated.
(j) Any response action which is carried out in
response to any discharge, release or threatened release of
motor fuels from an UST must be conducted in accordance
with the requirements of Rules 335-6-15-.21 through
335-6-15-.34 and subparagraphs (a) through (d) of this Rule.
(k) The owner or operator shall keep and preserve
detailed records demonstrating compliance with approved
investigative and corrective action plans and all invoices
and financial records associated with costs for which
reimbursement will be requested. These records shall be
kept for at least three years, or as otherwise instructed
by the Department, after corrective action has been
completed for a site.
(1) The selected corrective action alternative must
be implemented in a manner acceptable to the Department in
order for the owner or operator to be eligible for the
reimbursement of costs.
(m) An eligible owner or operator conducting UST
response actions from October 1, 1988 until (the effective
date of this Chapter), relative to any discharge, release
or threatened release of motor fuels from an UST, is
entitled to reimbursement of reasonable costs from the AUST
Trust Fund if the release was discovered and subsequently
reported after September 30, 1988, and is exempted from the
requirements of subparagraphs (a) through (h) above,
provided that response actions were carried out in a manner
acceptable to the Department.
(n) If response actions which were initiated during
16-15
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335-6-16-.il
the time period referenced in subparagraph (m) above are
still continuing upon the effective date of these
regulations, the Department may require submittal of cost
proposals for any remaining phases of work and for the
total projected cost of the remediation.
(0) If the contractor performing response actions as
described in subparagraph (n) above is not an approved
contractor, the Department may authorize the continued use
of that contractor.
Statutory Authority: Code of Alabama 1975, §§22-35-4,
22-35-5
Effective (Author) June 1, 1989 (Sonja Massey and Gregory
Stephens)
335-6-16-.10 Requirements for AUST Trust Fund Coverage of
Third Party Claims. 5n eligible owner or operator Ts
entitled to AUST Trust Fund coverage for third party claims
resulting from the release of motor fuels from an UST,
subject to the following provisions.
(a) The Department was notified by the owner or
operator within thirty (30) days of receipt of notice of
the third party liability suit.
(b) The owner or operator was in substantial
compliance at the time a release occurred and at the time
the third party suit is filed.
(c) The third party liability suit must name the
Director, in his official capacity as representative of the
fund, and the owner or operator.
(d) The third party obtains a final judgement
enforceable in Alabama.
(e) The eligible UST owner or operator submits
proof of payment of the first $5,000 of a final judgment.
Statutory Authority: Code of Alabama 1975, §§22-35-5
Effective (Author;: June H 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.il AUST Trust Fund Obligations.
(1) Contingent upon availability of funds the
Department will make obligations from the AUST Trust Fund
when:
16-16
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335-6-16-.12
(a) A cost proposal for response actions, submitted
in accordance with Rule 335-6-16-.09, is approved by the
Department.
(b) A judgement for a third party claim is submitted
for payment in accordance with Rule 335-6-16-.07 and
335-6-16-.10.
(c) A payment application in accordance with Rule
335-6-16-. 13, is received for:
1. Response actions work performed from October 1,
1988 until (the effective date of this Chapter), subject to
a determination of reasonable costs by the Department.
2. Investigative or corrective actions under the
terms of Rule 335-6-16-.09(b).
(2) If the unobligated balance of the AUST Trust Fund
is less than the total amount associated with payment
applications, cost proposals and third party judgments
which have been accepted by the Department, to the extent
allowed by available funds, funds will be obligated in the
chronological order in which the claims were submitted,
except for the provisions of paragraph (3) of this Rule.
(3) Obligations of funds required for satisfying
payment applications for work performed under subparagraph
(1)(c) above or judgments for third party claims which were
rendered prior to (the effective date of this Chapter) for
releases discovered and subsequently reported under the
provisions of this Chapter from October 1, 1988, until (the
effective date of this Chapter), will be given priority
over payment applications and cost proposals for releases
which occur after the effective date of this Chapter.
Statutory Authority: Code of Alabama 1975, §§22-35-4,
22-35-5
Effective (Author): June 1, 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.12 AUST Trust Fund Ineligible Costs.
(1) Costs of replacement and/or retrofitting of
affected tanks and associated piping shall not be eligible
for payment or re-imburseraent by the AUST Trust Fund.
Additionally, any equipment or labor or installation costs
not integral to site rehabilitation or provision of an
alternate water supply are not eligible for re-imburseraent
from the AUST Trust Fund.
16-17
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335-6-16-.13
(2) The cost of equipment purchases other than
routinely required supplies which are expended at a given
site or equipment which must be installed at a site to
implement a corrective action plan, shall not be charged to
the cost of rehabilitating any given site at which AUST
Trust Funds are being claimed for investigative or
corrective action costs. Examples of equipment which could
not be charged to a specific site would include: drilling
rigs, earth moving equipment, groundwater sampling pumps,
and photoionization detectors. Examples of equipment which
could be charged to a specific site would include:
bailers, sample containers, etc.
Hourly charges for equipment may be established in the cost
proposal submitted for each major phase of work. These
hourly rates must be competitive with similar charges by
other approved contractors, or they may be rejected by the
Department if they are determined to represent unreasonable
costs.
(3) The first $5000 of approved response action
costs, or such other amount as may be approved by the
Commission, which are incurred by the owner or operator are
not eligible for reimbursement from the AUST Trust Fund.
Proof of payment of the first $5000 or another amount, is
required prior to reimbursement of any costs.
(4) The first $5000 of a final judgment obtained by
?ualified third parties are not eligible for disbursement
rom the AUST Trust Fund. Proof of payment by the eligible
UST owner or operator of the said first $5,000 of a final
judgment is required prior to disbursement of fund monies.
Statutory Authority: Code of Alabama 1975, §§22-35-4,
22-35-7
Effective (Author): June 1, 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.13 Applications for Payment.
(1) Applications for reimbursement for costs of
response actions shall be submitted on a form established
by the Department which shall include an itemization of all
charges according to labor hours and rates, analytical
charges, equipment charges, and other categories which may
be identified by the Department, or which the applicant may
wish to provide. Documentation of charges must be
submitted as part of the application, as required by the
Department.
16-18
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335-6-16-. 13
(2) The application shall contain the following
statement which shall be signed by the owner or operator
and the project manager of the contracting firm responsible
for performance of response actions where applicable:
I certify to the best of my knowledge and belief:
that the costs presented herein represent actual
costs incurred in the performance of response
actions related to this site during the period of
time indicated on this application; and that no
charges are presented as part of this application
that did not result from the performance of
response actions which were necessary due to the
release of motor fuels at this site.
(3) The application shall contain the following
statement which shall be signed by the owner or operator.
I certify that an unintentional release has
occurred from a motor fuel underground storage
tank system at this site.
(4) Applications for payments may be submitted
following acceptance by the Department of completed
response actions. Such response actions may include but
are not limited to the following:
(a) Completion of site stabilization activities which
were authorized by the Department.
(b) Completion and submittal of a report for a
Preliminary Investigation.
(c) Implementation of a Free Product Removal System
(d) Completion and submittal of a report for a
Secondary Investigation and Development of a Corrective
Action Plan.
(e) Implementation of a Corrective Action Plan
(f) Provision of an alternate water supply
(5) Applications for payments for the implementation
of corrective action may be submitted ninety (90) days
following initiation of work to implement the corrective
action plan and at ninety (90) day intervals thereafter
until completion of the authorized activities. Upon
request, the Department may approve interim payments at
more frequent intervals.
16-19
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335-6-16-.14
(6) All payments shall be subject to approval by tne
Department. Should a site inspection or other information
available to the Department reveal a discrepancy between
the work performed and the work addressed by a payment
application, the Department may deny payment or may require
the AUST Trust Fund to be reimbursed.
(7) An application for payment must be received
within one year from the date of performance or acceptance
of the work in order to be eligible for payments from the
AUST Trust Fund.
(8) Except for the situations provided for in Rules
335-6-16-. 11 (b) and (1), payments shall not be made for
response actions performed at a site until the Department
has reviewed and accepted a cost proposal for that work and
until funds have been obligated from the AUST Trust Fund
for completion of that particular stage of work.
(9) For payment of third party claims the UST owner
or operator must submit an application to the Department
attaching the original or a certified copy of a final
judgement, enforceable in this state with proof of payment
of the first $5000, no later than thirty (30) days after
notification of judgement.
Statutory Authority: Code of Alabama 1975, §§22-35-5
Effective (Author): June Ti 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.14 AUST Trust Fund Payment Procedures.
(1) Where the owner or operator has submitted an
acceptable application for payment for response actions or
third party claims but has not paid for these activities or
claims, payments will be made by a check written to both
the eligible owner or operator and the provider of the
response action services or third party.
(2) Payments from the AUST Trust Fund will be made
directly to the eligible owner or operator in cases where
the owner or operator submits documentation verifying the
owner or operator has paid for response actions.
(3) The owner or operator is responsible for final
payment to the contractor who performed the response
actions, and for payment of judgments to third parties.
(4) Contingent upon availability of funds the
Department shall process all complete applications for
payment within sixty (60) days of receipt of application.
16-20
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335-6-16-.15
If certain costs are considered as not being reasonable or
eligible for reimbursement, the Department may issue a
application not in question and
period in which the owner or
present such information as is
disallowed costs. Following
the Department may agree to pay
the previously disallowed costs, or any portion thereof, or
may again disallow the costs for payment.
check for the amount of the
provide a fifteen (15) day
operator or contractor may
necessary to justify the
review of such information,
Statutory Authority:
22-35-8
Effective (Author):
Gregory Stephens)
Code of Alabama 1975, §§22-35-5,
June 1, 1989 (Sonja Massey and
335-6-16-.15 Approval of Response Action Contractors.
(1) Response action contractors will be approved to
perform AUST Trust Fund work upon satisfaction of the
following:
(a) The contractor receives a minimum score of 70
percent from the Department's evaluation of a technical
proposal submitted to the Department using the following
criteria. The associated percentages indicate the relative
importance of each criteria.
1.
2.
3.
percent
Background and experience of personnel who will
perform the work 25 percent.
Knowledge of technical considerations necessary
to perform petroleum contamination
assessments 30 percent.
Project organization and management
20
4.
Past performance of site assessment and
corrective action services at petroleum
contamination sites or sites with similar organic
soil and groundwater contamination 25
percent.
(b)
The contractor shall maintain liability insurance
coverage of the types and in the amounts described in the
table below and shall provide certification to the
Department of such coverage upon meeting the requirements
of (a) above of this Rule, and yearly thereafter.
16-21
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335-6-16-.15
Type of Policy Limits of Liability
Worker's Compensation Statutory
Employer's Liability
Automobile Liability
General Liability
Umbrella Excess
Liability
$500,000
$1,000,000 combined
single limit (bodily
injury and property
damages)
$1,000,000 combined
single limit
$3,000,000
Description
All states
All owned,
non-owned,
and hired
vehicles
Broad Form
Comprehensive
General
Liability
This policy
is in excess
if the
underlying
General
Liability,
Worker's
Compensation,
and
Automobile
Liability
policies.
(2) The Department will provide notice that technical
proposals are to be requested by publication of a legal
advertisement which will provide interested firms with the
information necessary to request instructions for
preparation and submittal of technical proposals.
Technical proposals shall be independently evaluated by
members of a review committee consisting of Department
staff members according to the criteria of Subparagraph
(l)(a) of this Rule. Contractors satisfactorily meeting
the requirements of (1) (a) through (b) above shall be
placed on the Department's list of approved response action
contractors. This process shall be repeated at yearly
intervals to provide interested firms with the opportunity
to submit technical proposals for evaluation. Contractors
which have previously been approved will not be required to
requalify except under the provisions of paragraph (3)
below. Contractors which previously submitted technical
proposals but did not meet the requirements of Subparagraph
(l)(a) of this Rule may submit a subsequent proposal for
review at the time of the Department's yearly request for
proposals.
(3) Contractors who fail to satisfactorily maintain
the requirements of (a) through (b) above, as determined by
the Department, will be removed from the Department's
16-22
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335-6-16-.15
approved response action contractor's list. A contractor
may also be removed from the list if it is determined by
the Department that due to the quality or timeliness of
work performed by such contractor, progress in achieving
appropriate corrective actions at AUST Trust Fund sites has
been significantly delayed or inhibited. After a
contractor has been removed from the approved list,
evidence showing the reasons why such a contractor should
be reinstated may be submitted for evaluation after twelve
(12) months. A satisfactory evaluation by the Department
will enable the contractor to be placed back on the
approved response action contractor list.
(4) The appearance of a contractor on the
Department's list of approved response action contractors
shall in no way establish liability or responsibility on
the part of the Department or the State of Alabama in
regards to the services provided by the contractor or
circumstances which may occur as a result of such services.
(5) The Department may approve the use of an owner or
operator's personnel and equipment for use in performing
any or all response actions necessary for the remediation
of a site upon satisfaction of the following:
(a) Within 10 days of reporting of a release, or
such other time as the Department may allow, the owner or
operator shall make a demonstration to the satisfaction of
the Department with respect to the capability of the owner
or operator's personnel to perform the work in a manner
which shall comply with Rules 335-6-15-.21 through
335-6-15-.34 and 335-6-16-.09, with particular
consideration being given to the background and experience
of the personnel who will perform the work and their
knowledge of the technical considerations necessary to
perform the response actions for which approval for their
use is being requested; and
(b) An owner or operator who performs any or all
of the necessary response actions at a site is required to
comply with the provisions of Rules 335-6-15-.21 through
335-6-15-.34, and 335-6-16-.09.
(c) An owner or operator must satisfy the
liability insurance coverage requirements of Rule
335-6-16-.15(1)(b).
(6) If the Department determines that an owner or
operator that is performing response actions is not
performing such actions in compliance with Rules
335-6-15-.21 through 335-6-15-.34 and 335-6-16-.09, the
16-23
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335-6-16-.17
Department may require the owner or operator to obtain the
services of an approved response action contractor. Any
work performed by an owner or operator that is not in
compliance with the above referenced rules may not be
eligible for reimbursement.
Statutory Authority: Code of Alabama 1975, §§22-35-3
Effective (Author; : June 1"^ 1989 (Sonja Massey and
Gregory Stephens)
335-6-16-.16 Insufficient Funds
(1) Nothing in these regulations shall establish
liability or responsibility on the part of the Department
or State of Alabama to pay any response action costs or
third party judgements from any other source than the AUST
Trust Fund, nor shall the Department or State of Alabama
have any liability or responsibility to make any payments
for response action costs or third party judgements if the
AUST Trust Fund is insufficient to do so. Further, the
Department or State of Alabama shall have no liability or
responsibility if the owner or operator defaults in payment
for response actions or third party judgements.
(2) In the event the AUST Trust Fund is insufficient
to make full payments for eligible UST owners or operators
taking investigative or corrective actions or for
satisfaction of third party judgments, at the time the
claim is filed, such claims shall be paid in accordance
with the provisions described in Rule 335-6-16-.il (2) and
(3).
(3) The owner of an UST retains responsibility for
any liability that cannot be satisfied by the provisions of
this Chapter.
Statutory Authority: Code of Alabama 1975, §§22-35-5,
22-35-13
Effective (Author): June 1, 1989 (Sonja Massey and
Gregory Stephen)
335-6-16-.17 Cost Recovery Allowed. Whenever funds from
the AUST Trust Fund have been expended by the Department
for taking response action with respect to the release of
motor fuels from an underground storage tank, the owner or
operator of the underground storage tank shall be liable to
the Department for such costs if the owner or operator was
not eligible for AUST Trust Fund coverage on the date of
the release of motor fuels which necessitates the response
action; otherwise, liability is limited to the provisions
contained in Rule 335-6-16-.08(2) .
16-2 A
-------
335-6-16-.19
Statutory Authority: Code of Alabama 1975, §§22-35-4
Effective (Author): June T9F9 (Sonja Massey and
Gregory Stephens)
335-6-16-.18 Adjustment of Limit of Owner or Operator's
Financial Responsibility. The Commission may adjust the
owners or operator's limits of financial responsibility for
response actions and third party damages. Prior to the
Commission taking any action to adjust the owner or
operator's limit of financial responsibility, the Trust
Fund Advisory Board will provide a recommendation to the
Commission regarding such proposed action. The Commission
shall take into consideration the recommendation of the
Advisory Board in making the final determination.
335-6-16-.19 Severability. If any paragraph,
subparagraph, provision, clause or portion of this Chapter
is adjudged unconstitutional or invalid by a court of
competent jurisdiction, the remainder of this Chapter shall
not be affected thereby.
Statutory Authority: Code of Alabama 1975, §§22-35-11
Effective (Author): June Tj 1989 (Sonja Massey and
Gregory Stephens)
16-25
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r/r?
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EPA Region IV UST Attorneys Association Notebook
Florida Statutes and Rules
Table of Contents
1. Chapter 376, Florida Statutes (1991) and (1992 Supp.), Pollutant
Discharge Prevention and Removal. ** 1«
(Sections relating to the tanks program, our trust fund, our insurance
program, noncompliance fees, and defenses are ss. 376.301, 376.303,
376.3071, 376.3072, 376.3074, and 376.308, respectively.)
2. Chapter 403, Florida Statutes (1991) and (1992 Supp.), Environmental
Control
6*-
3. Chapter 3^761, Florida Administrative Code (FAC), Underground
Storage Tank Systems
t,v
4. Chapter *7-762, FAC, Aboveground Storage Tank Systems
it
5. Chapter >^-767, FAC, Mineral Acid Aboveground Storage Tanks
ct
6. Chapter #7-769, FAC, Florida Petroleum Liability and Restoration
Insurance Program
62-
7. Chapter *7-770, FAC, Petroleum Contamination Site Cleanup Criteria
ci
8. Chapter 1-7-771, FAC, Petroleum Contamination Site Priority Ranking
Rule
ct-
9. Chapter 17-773, FAC, Reimbursement for Petroleum Contamination
Site Cleanup
c 1"
10. Chapter W-775, FAC, Soil Thermal Treatment Facilities
-------
(? " ^ -t)' FlO(2-»^*\
CHAPTER 96-277
Committee Substitute for House Bill No. 1127
An act relating to petroleum underground storage tanks; amending 8.
376.30, P.S.; establishing priorities for payments from the Inland Pro-
tection Trust Fund; amending s. 376.301, F.S.; providing definitions;
amending s. 376.303, F.S.; deleting obsolete language with respect to
powers and duties of the Department of Environmental Protection;
including an additional type o/ storage tank within a group which is
not required to be registered under the program for aboveground
hazardous substance tanks; amending s. 376.305, F.S.; deleting lan-
guage with respect to certain persons who may be entitled to reim-
bursement for rendering assistance in containing or removing certain
pollutants; providing for waiver of certain storage system closure re-
quirements under certain circumstances; providing for site rehabilita-
tion funding; amending 8. 376.3071, F.S.; providing additional legisla-
tive findings; providing for th^creation of a nonprofit public benefit
corporation to assist the state in financing certain functions; providing
legislative intent regarding duties of the department relating to im-
proving the efficiency of the Petroleum Restoration Program and site
rehabilitation; revising provisions relating to the Inland Protection
Trust Fund; providing for additional UBes of moneyB in the fund;
revising language with respect to the duty of the department to adopt
rules for site selections and cleanup; providing criteria; revising provi-
sions relating to the department's duty to seek recovery and reim-
bursement; providing criteria for voluntary cleanup; specifying non-
reimbursable cleanup; providing for the application of programs for
reimbursement for cleanup expenses; limiting certain amounts of re-
imbursement; requiring the department to develop schedule of reim-
bursement payments; requiring payment of reimbursement based on
present value; providing for the granting and variances of a waiver;
providing for a petroleum cleanup participation program; requiring
the department to implement a cost-sharing cleanup program to pro-
vide rehabilitation funding assistance under certain circumstances;
providing criteria; providing procedures; providing for eligibility; re-
quiring a copayment; requiring a limited contamination assessment
report; providing limitations; providing exceptions; amending s.
376.30711, F.S.; revising language with respect to eligibility for site
rehabilitation reimbursement; providing for preapproved site rehabil-
itation; providing legislativedeclarations; requiring the f'spartment to
use competitive bid procedures or negotiated contracts for certain
purposes; providing procedures; providing criterie; providing limita-
tions; requiring the department to conduct a pilot project for certain
purposes; providing for a report; creating s. 376.30713, F.S.; providing
for preapproved advanced cleanup; providing legislative findings; pro-
viding procedures for applications; providing requirements; authoriz-
ing the department to contract for preapproved advanced cleanup;
requiring a report; providing for future repeal; amending s. 376.3072,
F.S.; revising provisions relating to the Florida Petroleum Liability
CODING: Words striken are deletions; words underlined ore additions.
1
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Ch. 06-277
LAWS OF FLORIDA
Ch. 96-277
and Restoration Insurance Program; providing additional criteria;
providing for a~supplemental deductible; providing for redetermina-
tion of eligibility for insurance; amending s. 376.3073, F.S.; directing
the department to contract with local governments for certain cleanup
operations under certain circumstances; creating s. 376.3075, F.S.;
creating the Inland Protection Financing Corporation to assist the
department in financing petroleum contamination site remediation;
providing for a board of directore; providing powers and duties; autho-
rizing the corporation to contract with the department for certain
purposes; authorizing the corporation to issue and incur indebtedness;
providing limitations; providing requirements; exempting the corpo-
ration from all taxation; authorizing the corporation to validate obliga-
tions; providing for termination of the corporation; amending s.
376.308, F.S.; providing that certain persons shall not be subject to
certain administrative or judicial actions to complete site rehabilita-
tion; amending s. 376.311, F.S.; revising provisions relating to penal-
ties for discharge; prohibiting certain employees of the department to
hold employment or have a contractual arrangement with certain
entities; amending ss. 287.0595 and 316.302, F.S.; correcting cross
references; repealing s. 376.30712, F.S., relating to enforcement of
rehabilitation schedules; repealing s. 376.3074, F.S., relating to non-
compliance fees; providing severability; providing an appropriation;
providing an effective date.
WHEREAS, property owners benefit from the cleanup of contamination
from underground petroleum storage tanks located on their property, and
WHEREAS, the state has been assisting property owners with reimburse-
ment for cleanup of contamination from.underground petroleum storage tanks
but only within the limits of resources dedicated to that purpose for each fiscal
year, and
WHEREAS, since 1989 the reimbursement for cleanup of contamination
from petroleum storage tanks under all site restoration programs has been
limiied to the unencumbered funds in the Inland Protection Trust Fund, and
WHEREAS, the Legislature intends to continue to limit the amount of
money designated for the purposes of petroleum contamination cleanup, and
WHEREAS, for several years the unencumbered funds in the Inland Protec-
tion Trust Fund have been insufficient to provide reimbursement to persons
responsible for conducting site rehabilitation, and
WHEREAS, the Legislature desires to have a program which allows for
certain additional sites to be eligible for restoration funding in order to foster
economic development, and to protect human health, public safety and the
environment, and
WHEREAS, the Legislature desires to create a public private corporation to
issue certificates of indebtedness which will generate funds to pay off the
existing backlog of approved reimbursement cluims, and
2
CODING: Words striken are deletions; words underlined ore additions.
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Ch. 96-277
LAWS OF FLORIDA
Ch. 98-277
WHEREAS, in order to accomplish this purpose persons responsible for
Ionducting site rehabilitation will be required to discount their claims for
bimbursement as a condition for receipt of any of the bond proceeds, and
WHEREAS, the Legislature has determined that it_is in the state's best
interest to provide discounted payment, of the backlog of reimbursement
claims so that more funds are available for certain new cleanup-projects, and
WHEREAS, the Legislature is taking this action only after balancing all the
competing needs of the state, NOW, THEREFORE,
Be It Enacted by the Legislature if the State of Florida:
Section 1. Paragraph (c) of subsection (3) of section 376.30, Florida Stat-
utes, is amended to read:
376.30 Legislative intent with respect to pollution of surface and ground
waters.—
(3) The Legislature intends by the enactment of ss. 376.30-376,319 to exer-
cise the police power of the state by conferring upon the Department of
Environmental Protection the power to:
(c) Establish a program which will enable the department to:
1. Provide for expeditious restoration or replacement of potable water
systems or potable private wells of affected persons where health hazards exist
due to contamination from pollutants (which may include provision of bottled
water on a temporary basis, after which a more stable and convenient source
of potable water shall be provided) and hazardous substances, subject to the
following conditions:
a. For the purposes of this subparagraph, the term "restoration" means
restoration of a contaminated potable water supply to a level which meets
nplicable water quality standards or applicable water quality criteria, as
Hopted by rule, for the contaminant or contaminants present in the water
supply, or, where no such standards or criteria have been adopted, to a level
which is determined to be a safe, potable level by the State Health Officer in
the Department of Health and Rehabilitative Services, through the installa-
tion of a filtration system and provision of replacement filters as necessary or
through employment of repuirs or another treatment method or methods
designed to remove or filter out contamination from the water supply; and the
term "replacement" means replacement of a well or well field or connection to
an alternative source of safe, potable water.
b. For the purposes of the Inland Protection Trust Fund and the drycienn-
ing facility restoration funds in the Hazardous Waste Management Trust
Fund as provided in s. 376.3078, such restoration or replacement shall take
precedence over other uses of the unobligated moneys within the fund after
payment of amounts appropriated annually from the Inland Protection Trust
Fund for payments under any service contract entered into by the department
pursuant to s. 376.3075.
3
COOING: Words striken are deletions; words underlined are additions.
-------
c. Funding for activities described in this subparagraph shall not exceed
$10 million for any one county for any one year-, other than for the provision
of bottled water.
d. Funding for activities described ih_this subparagraph shall not be avail-
aole to fund any increase in the capacity of a potable water system or potable
private well over the capacity which existed prior to such "restoration or re-
placement, unless such increase is the result of the use of a more cost-effective
alternative than other alternatives available.
2. Provide for the inspection and supervision of activities described in this
subsection; and
3. Guarantee the prompt payment of reasonable costs resulting therefrom,
including those administrative costs incurred by the Department of Health
and Rehabilitative Services in providing field and laboratory services, toxico-
logical risk assessment, and other services to the department in the investiga-
tion of drinking water contamination complaints.
Section 2. Section 376.301, Florida Statutes, is amended to read:
1376.301V DefinitionsVxof terms used in ss. 376.30-376.319, 376.70. and
?i(5.75.—-When U96fi..lhss. 376.30-376.319, 376.70, and 376.75, unless the con-
text clearly requires otherwise, the term:
(1) "Aboveground hazardous substance tank" means any stationary above-
ground storage tank and onsite integral piping that contains hazardous sub-
stances which are liquid at standard temperature and pressure and has an
individual storage capacity greater than 110 gallons.
(2) "Additive effects" means a scientific theory under which the toxicity of
chemicals increases in linear proportion to the increase in the number of
substances.
(3) "Backlog" means reimbursement obligations incurred pursuant to s.
376.3071(121. prior to March 29.1995. or authorized for reimbursement under
the provisions of s. 376.3071(12). pursuant to chapter 95-2. Laws of Florida-
Claims within the backlog are subject to adjustment, where appropriate.
(41(2) "Barrel" means 42 U.S. gallons at 60 degrees Fahrenheit.
(51(3) "Bulk product facility" means a coastal waterfront location with at
least one aboveground tank with a capacity greater than 30,000 gallons which
is used for the storage of pollutants.
(61(4) "Cattle-dipping vat" means any structure, excavation, or other facil-
ity constructed by any person, or the site where such structure, excavation, or
other facility once existed, for the purpose of treating cattle or other livestock
with a chemical solution pursuant to or in compliance with any local, state, or
federal governmental program for the prevention, suppression, control, or
eradication of any dangerous, contagious, or infectious diseases.
(71(5) "Compression vessel" means any stationary container, tank, or onsite
integral piping system, or combination thereof, which has a capacity of greater
4
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Ch. 06-277
LAWS OF FLORIDA
Ch. 96-277
than 110 gallons, that is primarily used to store pollutants or hazardous sub-
stances above atmospheric pressure or at a reduced temperature in order to
lower the vapor pressure of the contents. Manifold compression vessels that
function as a single vessel shall be considered as one vessel.
"Department" means the Department of Environmental Protection.
"Discharge" includes, but is not limited to, any spilling, leaking,
seeping, pouring, misapplying, emitting, emptying, or dumping of any pollu-
tant which occurs and which affects lands and the surface and ground waters
of the state not regulated by. 88. 376.011-376.21.
U01(8) "Drycleaning facility" means a commercial establishment that op-
erates or has at some time in the past operated for the primary purpose of
drycleaning clothing and other fabrics utilizing a process that involves any use
of drycleaning solvents. The term "drycleaning facility" includes laundry facil-
ities that use drycleaning solvents as part of their cleaning process. The term
does not include uniform rental companies, and linen supply companies re-
gardless of whether the facility was previously operated as a dry cleaning
facility.
(111(9) "Drycleaning solvents" means any ana an nonaqueous solvents used
in the cleaning of clothing and other fabrics and includes perchloroethylene
(also known as tetrachloroethylene) and petroleum-based solvents, and their
breakdown products. For purposes of this definition, "drycleaning solvents"
only includes those drycleaning solvents originating from use at a drycleaning
facility or by a wholesale supply facility.
1121(10) "Dry drop-off facility" means any. commercial retail store that
receives from customers clothing and other fabrics for drycleaning or launder-
ing at an offsite drycleaning facility and that does not clean the clothing or
fabrics at the store utilizing drycleaning solvents.
(13) "Engineering controls" means modifications to a site to reduce or
Leliminate the potential for exposure to petroleum product's chemicals of con-
cern. Such modifications may include, but are not limited to. physical or
hydraulic control measures, capping, point of use treatments, or slurry walls.
(141(44) "Wholesale supply facility" means a commercial establishment
that supplies drycleaning solvents to drycleaning facilities.
(15)(-1£) ^FaciliW^ means a nonresidential location containing, or which
contained, any underground stationary tank or tanks which contain hazardous
substances or pollutants and have individual storage capacities greater than
110 gallons, or any aboveground stationary tank or tanks which contain pollu-
tants which are- liquids at standard ambient temperature and pressure and
have individual storage capacities greater than 550 gallons. This subsection
shall not apply to facilities covered by chapter 377, or containers storing solid
or gaseous pollutants, and agricultural tanks having storage capacities of less
than 550 gallons.
(16H-13) "Flow-through process tank" means an aboveground tank that
contains hazardous substances or specified mineral acids as defined in s.
5
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Ch. 98-277
LAWS OF FLORIDA
Ch, 96-277
376.321 and that forms an integral part of a production proces9 through which
there is a steady/variable, recurring, or intermittent flow of materials during
the operation of the process. Flow-through process tanks include, but are not
limited to, seal-tanks. vapor recovery unite, surge tajiks, blend tanks, feed
tanks, check and delay tanks, batch tanks, oil-water separators, or tanks in
which mechanical, physical, or chemical change of a material is accomplished.
(171(444 "Hazardous substances" means those substances defined as haz-
ardous substances in the Comprehensive Environmental Response, Compen-
sation and .Liability Act of 1980, Pub. L. No. 96-510,94 Stat. 2767, as amended
by the Superfund Amendments and Reauthorization Act of 1986.
(18) "Institutional controls" means the restriction on use or access to a aita
to eliminate or minimize exposure to petroleum product's chemicals of con-
cern. Such restrictions may include, but are not limited to. deed restrictions,
use restrictions, or restrictive zoning.
(19) "Natural attenuation" means the verifiable reduction of petroleum
products' chemicals of concern through natural processes which may include
diffusion, dispersion, absorption, and biodegradation.
(20)(45) "Operator" means any person operating a facility, whether by
lease, con tram., or other form of agreement.
{211(44) "Owner" means any person owning a facility.
^£22^(47) "Person" means any individual, partner, joint venture, or corpora-
tion; any group of the foregoing, organized or united for a business purpose;
or any governmental entity.
£231(48} "Person in charge" means the person on the scene who is in direct,
responsible charge of a facility from which pollutants are discharged, when the
discharge occurs.
(241(48) "Person responsible for conducting site rehabilitation" means the
site owner, operator, or the person designated Dy the site owner or operator
on the reimbursement application. Mortgage holders arid trust" holders may be
eligible to participate in the reimbursement program pursuant to s.
376.3071(12).
(251(20) "Petroleum" includes:
(a) Oil, including crude petroleum oil and other hydrocarbons, regardless
of gravity, which are produced at the well in liquid form by ordinary methods
and which are not the result of condensation of gas after it leaves the reservoir;
and
(b) All natural gas, including casingheod gas, and all other hydrocarbons
not defined as oil in paragraph (a).
(261(24) "Petroleum product" means any liquid fuel commodity made from
petroleum, including, but not limited to, all forms of fuel known or sold as
diesel fuel, kerosene, all forms of fuel known or sold as gasoline, and fuels
6
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Ch. 96-277
LAWS OF FLORIDA
Ch. 96-277
containing a mixture of gasoline and other products, excluding liquefied petro-
leum gas and American Society for Testing and Materials (ASTM) grades no.
5 and no. 6 residual oils, bunker-G residual oils, intermediate fuel oils (IFO)
used for marine bunkering with a viscosity of 30 and higher, asphalt oils, and
petrochemical feedstocks.
(27) "Petroleum products' chemicals of concern" means the constituents of
petroleum products, including, but not limited to. xylene, benzene, toluene,
ethvlbenzene. naphthalene, and similar chemicals, and constituents in petro-
leum products, including, but not limited to. methvl tert-butvl ether (MTBE).
lead, and similar chemicals found in additives, provided the chemicals of
concern are present as a result of -a discharge of petroleum products.
(281(22) "Petroleum storage system" means a stationary tank not covered
under the provisions of chapter 377, together with any onsite integral piping
or dispensing system associated therewith, which is used, or intended to be
used, for the storage or supply of any petroleum product. Petroleum storage
systems may also include oil/water separators, and other pollution control
devices installed at petroleum product terminals as defined in this chapter and
bulk product facilities pursuant to, or required by, permits or best manage-
ment practices in an effort to control surface discharge of pollutants. Nothing
herein shall be construed to allow a continuing discharge in violation of depart-
ment rules.
(291(23) "Pollutants" includes any "product" as defined in s. ill. 19(11),
pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied
petroleum gas.
(30)(24) "Pollution" means the presence on the land or in the waters of the
state of pollutants in quantities which are or may be potentially harmful or
injurious to human health or welfare, animal or plant life, or property or which
may unreasonably interfere with the enjoyment of life or property, including
outdoor recreation.
(£11(25) "Real property owner" means the individual or entity that is
vested with ownership, dominion, or legal or rightful title to the real property,
or which has a ground lease interest in the real property, on which a dryclean-
ing facility or wholesale supply facility is or has ever been located.
(321(26) "Response action" means any activity, including evaluation, plan-
ning, design, engineering, construction, and ancillary services, which is carried
out in response to any discharge, release, or threatened release of a hazardous
substance, pollutant, or other contaminant from a facility or site identified by
the department under the provisions of ss. 376.30-376.319.
(331(27) "Response action contractor" means a person who is carrying out
any response action, including a person retained or hired by such person to
provide services relating to a response action.
(34)138) "Secretary" means the Secretary of Environmental Protection.
(35) "Site rehabilitation" means the assessment of site contamination and
the remediation activities that reduce the levels of contaminants nt a site
7
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Ch. 90-277
LAWS OF FLOniDA
Ch. 06-277
through accepted treatment methods to meet the cleanup target levels estab-
lished for that site-
OS) "Source removal" ineitms the removal of free product or contaminants
from soil that has been contaminated bv" betroleum or petroleum nrbdurtji tn
the extent that petroleum product's chemicals of concern leach into groundwa-
ter,
(311(29) "Storage system" means a stationary tank not covered under the
provisions of chapter 377, together with any onsite integral piping or dispens-
ing system'associated therewith, which is or has been used for the storage or
supply of any petroleum product, pollutant, or hazardous substance as defined
herein, and which is registered with the Department of Environmental Protec-
tion under this chapter or any rule adopted pursuant hereto.
(38) "Synergistic effects" means a scientific theory under which the toxicity
of chemicals exponentially increases as the number of chemicals in a combina-
tion increases.
Section 3. Paragraphs (a) and (c) of subsection (1) of section 376.303,
Florida Statutes, are amended to read:
376.303 Powers and duties of the Department of Environmental Protec-
tion.—
(1) The department has the power and the duty to:
(a) Establish rules, including, but not limited to, construction standards,
permitting or registration of tanks, maintenance and installation standards,
and removal or disposal standards, to implement the intent of ss. 376.30-
376.319 and to regulate underground and aboveground facilities and their
onsite integral piping systems. Such rules may establish standards for under-
ground facilities which store hazardous substances or pollutants, and marine
fueling facilities and aboveground facilities, not covered by chapter 377, which
store pollutants. Beginning January 1, 1991, The department shall register
bulk product facilities and shall issue annual renewals of such registrations.
Requirements for facilities with underground storage tanks having storage
capacities over 110_gallons that store hazardous substances became shall-not
be effective until January 1, 1991. The department shall maintain a compli-
ance verification program for this section, which may include investigations
or inspections to locate improperly abandoned tanks. The department may
contract with other governmental agencies or private consultants to perform
compliance verification activities. The contracts may provide for an advance
of working capital to local governments to expedite the implementation of the
compliance verification program. Counties with permit or registration fees for
storage tanks or storage tank systems are not eligible for advance funding for
the compliance verification program.
(c) Establish a registration program for aboveground hazardous substance
tanks and compression vessels.
1. Owners or operators shall register their tanks and vessels with the de-
partment by December 31, 1992, pay initial registration fees by July 1, 1993,
8
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Ch. 96-277
LAWS OF FLORIDA
Ch. 9G-277
and pay annual renewal registration fees by July 1, 1994, in accordance with,
the requirements of this subsection. Flow-through process tanks, liquefied
petroleum gas tanks, hydraulic lift tanks, electrical equipment-tanks, storage
tanks containing sodium hypochlorite, storage tanks containing hazardous.
wastes as defined under Subtitle" C of the. Resource Recovery and Conservation
Act, stormwater tanks, wastewater collection or discharge systems, or storage
tanks located entirely within a building or portion of a building with an
impervious floor that contains no valves or drains that would allow a discharge
from the system are not required to register. Pollutant tanks required to be
registered under s. 376.303(l)(b) or 8. 376.323 shall not be required to be
registered under this paragraph. The department shall, whenever possible,
accept electronically transmitted registration data.
2. Registration fees.—
a. Owners of tanks or vessels shall submit to the department an initial
registration fee of $50 per tank or vessel. The fee shall be paid within 30 days
after receipt of billing by the department
b. Owners of tanks or vessels shall submit an annual renewal registration
fee of $25 per tank or vessel within 30 days after receipt of billing from the
department.
c. Total annual registration fees for initial fees or renewals shall not exceed
$2,500 per facility.
d. Revenues derived from such fees shall be deposited into the Water
Quality Assurance Trust Fund.
Section 4. Subsection (6) and paragraphs (b) and (c) of subsection (7) of
section 376.305, Florida Statutes, are amended to read:
376.305 Removal of prohibited discharges.—
(b)—Gan-©8tabli8h-a-defen6e-undet-6r-376.308Hand
(g)—I&-nGt-©ligibl&-fGF-a-eleanup-pr-ogFara-unde^6r-37&7305(3-)r6i-376;307-lT-GF
who-Fender-s-aesistanee-in-containing-GMemoving-any-polkitant-may-beeligible
for-reimbureemenfr-of-the-Gost-of-containment-or-removal-in-accordance-with
appliGable-r-eimburBement-prQvi6iQn&-and-r-u]esr-provider-iGr-approval.-Tiie
GOst-shaHng-aBd-dsduGtibla-pr© visions-© k8r-376r3072(3}(e)-shall-not-apply-to
a-faimbar8©ment-w<)ue8t-macle-()ursuant-to-this-6ub68Gt,ion.-A ny-person-who
knowiflgly-aGquire&-tUJe-4o-eontamiRated-pFop©Fty-6hall-«ot-be-eli£ibl6-for
FeimbuFsement-puPBuant-to-this-subseGtion,
or e. 376.3Q2h>f
9
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Ch. 96-277 LAWS OF FLORIDA I J\ \ \<4/ Ch. 96-277
(6)ffl The Legislature created the Abandoned Tank Restoration Program
in response to the need to provide financial assistance tor cleanup or sileTthafc.
have abandoned petroleum storage systems. For purposes of this subsection
the term "abandoned petroleum storage system" shall mean any petroleum
storage system that has not stored petroleum products for consumption, use,
or saie since March 1, 1990. The department shall establish the Abandoned
Tank Restoration Program to fac|lltato_th©restoration of sites.contaminated
by abandoned petroleum storage systems.
• (b) In order to be eligible for the program, petroleum storage systems from
which a discharge occurred must be closed in accordance with department
rules prior to an eligibility determination. However, if the department deter-
mines that the owner of the facility is-financiallv unable to comply with the
.department's petroleum storage system closure requirements and all oMiET*
eligibility reauirenienia kfti lllOL. tlm ueirolfiUm Biorage Bvstem closure require-
ments shall be waived. The department shall take into consideration the
owner's net worth and the economic impact on the owner in making the
determination of the owner's Financial ability. The June 30. 1996 application
deadline Bhall be waived for owners who are financially unable to comply.
(c) Sites accepted in the program will be eligible for site rehabilitation
funding reimbursement of cleanup costs as provided in s. 376.3071(12) or a.
376.30711. as appropriate »nte8&4he owner or operator certifies to the-depart-
roenfc-ift-writing-thafc-he-or-she-qualvfios as a &raall-buain6s&-und&i^-BT-288,7Q3(4-)
or a corporation not for profit-undor chaptor-617.
The provisions of this subsection do not relieve any person who has acquired
title subsequent to July 1,1992, from the duty to establish by a preponderance
of the evidence that he or she undertook, at the time of acquisition, all appro-
priate inquiry into the previous ownership and use of the property consistent
with good commercial or customary practice in an effort to minimize liability,
as required by s. 376.308(l)(c).
Section 5. Subsections (1), (2), (4), and (5), paragraph (c) of subsection (7),
paragraph (b) of subsection (9), and subsections (10), (11), and (12) of section
376.3071, Florida Statutes, are amended, and subsection (13) is added to said
section, to read:
376.3071 Inland Protection Trust Fund; creation; purposes; funding.—
(1) FINDINGS.—In addition to the legislative findings set forth in s.
376.30, the Legislature finds and declares:
(a) That significant quantities of petroleum and petroleum products are
being stored in underground storage systems in this state, which storage is a
hazardous undertaking.;
(b) That spills, leaks, and other discharges from such storage systems have
occurred, are occurring, and will continue to occur and that such discharges
pose a significant threat to the quality of the groundwaters and inland surface
waters of this statej
10
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Ch. 96-277
LAWS OF FLORIDA
Ch. 06-277
(c) That, where contamination of the ground or surface water has occurred,
remedial measures have often been delayed for long periods while determina-
tions as to liability and the extent of liability are made and that such delays
result in the continuation and intensification of the threat to the public health,
safety, and welfare; in greater damage to the environment; and in significantly
higher costs to contain and remove the contaminationj^and
(d) That adequate financial resources must be readily available to provide
for the expeditious supply of safe and reliable alternative sources of potable
water to affected persons and to provide a means for investigation and cleanup
of contamination sites without delay.
(e) That it is necessary to fulfill the intent and purposes of ss. 376.30-
376.319. and further it is hereby determined to be in the beat interest of, and
necessary for the protection of the public health, safety, and general welfare
of the residents of this state, and therefore a paramount public purpose, to
provide for the creation of a nonprofit public benefit corporation as an instru-
mentality of the state to assist in financing the functions provided in as.
376.30-376.319 and to authorize the department to enter into one or more
service contracts with such corporation for the-provision of financing services
related to such functions and to make payments thereunder from the amount
on deposit in the Inland Protection Trust Fund, subject to annual appropria-
tion bv the Legislature.
(0 That to achieve the purposes established in paragraph (e) and in order
to facilitate the expeditious handling and rehabilitation of contamination sites
and remedial measures with respect to contamination sites provided hereby
without delay, it is in the best interests of the residents of this state to
authorize such corporation to issue evidences of indebtedness payable from
amounts paid bv the department under any such service contract entered into
between the department and such corporation.
(2) INTENT AND PURPOSE.—
(a) It is the intent of the Legislature to establish the Inland Protection
Trust Fund to serve as a repository for funds which will enable the department
to respond without delay to incidents of inland contamination related to the
storage of petroleum and petroleum products in order to protect the public
health, safety, and welfare and to minimize environmental damage.
(b) It is the intent of the legislature that the department implement rule9
and procedures to improvo the efficiency of the Petroleum Restoration Pro-
gram. The department is directed to implement rules and policies to eliminate
and reduce duplication of site rehabilitation efforts, paperwork, and documen-
tation. and micromanagement of site rehabilitation tasks.
(c) The department is directed to adopt and implement uniform and stan-
dardized forms for the requests for preapproval site rehabilitation work and
for the submittal of reports to insure that information is submitted to the
department in a concise, standardized uniform format seeking only informa-
tion that is necessary.
11
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Ch. 90-277
LAWS OF FLORIDA
Ch. 96-277
(d) The department is directed to implement computerized and elentrnnir
filing capabilities of nreapproval requests and aubmittal of reDorta in nrrW ^
expedite submittal of the information and elimination of delay in paperwork.
The computerized, electronic filing system shall be implemented no later thnn
January1!. 1997!"
(e) The department is directed to adopt uniform acooea of work with
temnlated labor and equipment costs to provide definitive-guidance nq tn t.ho
type of work and authorized expenditures that will be allowed for preannrnved
site rehabilitation tasks.
TO The department is directed to establish guidelines for consideration and
acceptance of new and innovative technologies for site rehabilitation work.
(4) USES.—Whenever, in its determination, incidents of inland contami-
nation related to the storage of petroleum or petroleum products may pose a
threat to the environment or the public health, safety, or welfare, the depart-
ment shall obligate moneys availablo in the fund to provide for:
(a) Prompt investigation and assessment of contamination sites.;
(b) Expeditious restoration or replacement of potable water supplies as
provided in s. 376.30(3)(c) 1-i
(c) Rehabilitation of contfunination sites, which shall consist of cleanup of
affected soil, groundwater, and inland surface waters, using the most cost-
effective alternative that is technologically feasible and reliable and that pro-
vides adequate protection of the public health, safety, and welfare and mini-
mizes environmental damage, in accordance with the site selection and
cleanup criteria established by the department under subsection (5), except
that nothing herein shall be construed to authorize the department to obligate
funds for payment of costs which may be associated with, but are not integral
to, site rehabilitation, such as the cost for retrofitting or replacing petroleum
storage systems
(d) Maintenance and monitoring of contamination sites.;
(e) Inspection and supervision of activities described in this subsection.f
(0 Payment of expenses incurred by the department in its efforts to obtain
from responsible parties the payment or recovery of reasonable costs resulting
from the activities described in this subsection
(g) Payment of any other reasonable costs of administration, including
those administrative costs incurred by the Department of Health and Rehabil-
itative Services in providing field and laboratory services, toxicological risk
assessment, and other assistance to the department in the investigation of
drinking water contamination complaints and costs associated with public
information and education activities,;
(h) Establishment and implementation of the compliance verification pro-
gram as authorized in s. 376.303(l)(a), including contracting with local govern-
ments or state agencies to provide for the administration of such program
12
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Ch. 90-277
LAWS OF FLORIDA
Ch. 96-277
through locally administered programs, to minimize the potentid'for farther
contamination sites.}
(i) Funding of the provisions of ss; 376.305(7) and 376.3072,;
(j) Activities related to removal and replacement of petroleum storage
systems, exclusive of costs of any tank, piping, dispensing unit, or related
hardware, if soil removal is preapproved a3 a component of site rehabilitation
and requires removal of the tank where remediation is conducted under s.
376.30711 or if such activities were justified in an approved remedial action
plan performed pursuant to subsection (12). Buch aotivitioo aro justified-in-an
eocapleted-pufsuant to subsection (12);
(k) Activities related to reimbursement application preparation and activi-
ties related to reimbursement application examination by a certified public
accountant pursuant to subsection (12).;
(1) Reasonable costs of restoring property as nearly as practicable to the
conditions which existed prior to activities associated with contamination
assessment or remedial action taken under s. 376.303(4).j-and
fm) Repayment of loans to the fund.
(n) Expenditure of sums from the fund to cover ineligible sites or costs as
set forth in subsection (13). if the department in its discretion deems it neces-
sary to do so. In such cases, the department may seek recovery and reim-
bursement of costs in the same manner and in accordance with the same
procedures as are established for recovery and reimbursement of sums other-
wise owed to or expended from the fund-
to) Payment of amounts payable under any service contract entered into
bv the department pursuant to s. 376.3075. subject to annual appropriation bv
the Legislature.
(ra)The Inland Protection Trust Fund may only be used to fund the activities
in ss. 376.30-376.319 except ss. 376.3078 and 376:3079. Amounts on deposit in
the Inland Protection Trust Fund in each fiscal year shall first be applied or
allocated for the payment of amounts payable bv the department pursuant to
paragraph (o) under a service contract entered into bv the department pursu-
ant to a. 376.3075 and appropriated in each year bv the Legislature prior to
making or providing for other disbursements from the fund. Nothing in this
subsection shall authorize the use of the Inland Protection Trust Fund for
cleanup of contamination caused primarily by a discharge of solvents as de-
fined- in s. 206.9925(6), or polychlorinated biphenyls when their presence
causes them to be hazardous wastes, except solvent contamination which is the
result of chemical or physical breakdown of petroleum products and is other-
wise eligible. Facilities used primarily for.the storage of motor or dicsel fuels
as defined in ss. 206.01 and 206.86 shall be presumed not to be excluded from
eligibility pursuant to this section. T©-as6Ufe-tbe-availability-of-6uffiGient
unenGumbeFed-fundB-to-pay-teimburserrvent-fequesterthe-depar-tment-may-not
utiliae-moFe-than-$64r-naillion-annually-fotL-6tate-€ondu€ted-Gleanup8r-€ompli-
anGe-inspeGtionBradministrative-BtaffT-and-misGellaneous-uses aBBOciated will)
13
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Ch. 00-277
LAWS OF FLORIDA
Ch. 96-277
the-provision&rof.w. 37.6'3&-376.3li>.J-ToweyecH£4hftTtlepart.ment-deteEmin«8
at tho ond of a fiscal year that-reimbursement-applications woro aubmitted-at
an-aveMge-rate-of-leea-than-^iS-njilliervpei^-Hionth-feF-UiaWiecal-yeaFyHand-if,
after Batisfaction of. jyatec-aupply-reatoration commitmente-and paymont of
reimbursement-application s-which-are-filed-and-BufficienVthe-unencumbered
balance of the-jnlan4-Pretection-3Fgust Fund is moro than $50 milliorythe
Qvf rior-n I uaoF-
Ul» V IIQwl Tvuw
(5) SITE SELECTION AND CLEANUP CRITERIA—
(a) The department shall adopt rules to establish priorities for state-
conducted cleanup at petroleum contamination sites based upon factors that
include, but need not be limited to:
1. The degree to which human health, safety, or welfare may be affected
by exposure to the contamination;
2. The size of the population or area affected by the contamination;
3. The present and future uses of the affected aquifer or surface waters,
with particular consideration as to the probability that the contamination is
substantially affecting, or will migrate to and substantially affect, a known
public or private source of potable water; and
4. The effect of the contamination on the environment.
Moneys in the fund shall then be obligated for activities described in para-
graphs (4)(a)-(e) at individual sites in accordance with such established
criteria. However, nothing in this paragraph shall be construed to restrict the
department from modifying the priority status of a rehabilitation site where
conditions warrant, taking into consideration the actual distance between the
contamination site and groundwater or surface water receptors or other factors
that affect the risk of exposure to petroleum product's chemicals of concern.
(b) It is the intent of the Legislature to protect the health of all people
under actual circumstances of exposure. The secretary shall establish criteria
by rule for the purpose of determining, on a site-specific case-by-case basis,
the rehabilitation program tasks that comprise a site rehabilitation program
fop-whiGh-reimbursemenUnay-be-made-in-aecordance-with-«ub8eGtion41-2)and
the level at which a rehabilitation program task and a site rehabilitation
tasks-are-to-be-per-forroed bythe-departmenfc-or-by-a-peraQn-through-his-or-hep
own-pefBonnel-or through-responaiblc-responso action contractors or subcon-
traGfcor^-Any-person-who-undertakee-a-site-rehabilifcation-pFogram-fo^-a-site
may-cond^ct-one-e^-mGro oito rehabilitation progfam tookoj howovor-j-except
as-provided-m-eubseGtion-^lS^ny-progFam-task-initiated-rouat-be-Gompleted
to-bo-eligible-fo^-rcimburaein&nt for such-ta6k. In establishing the rule, the
department shall incorporate, to the maximum extent feasible, risk-based
corrective action principles to achieve protection of human health and safety
and the environment in a cost-effective manner as provided in this subsection.
14
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Ch. 96-277
LAWS OF FLORIDA
Ch. 96-277
Criteria for determining what constitutes-a rehabilitation"program task or
completion of site rehabilitation program tasks and site rehabilitation pro-
grams shall be based upon the factors set forth in paragraph (a) and the
following additional factum:
1. The current exposure and potential risk of exposure to humans and the
environment including multiple pathways of exposure.
2. The appropriate point of compliance with cleanup target levels for petro-
leum product's chemicals of concern. The point of compliance shall be at the
source of the petroleum contamination. However, the department is author-
ized to temporarily move the point of compliance to the boundary of the
property, or to the edge of the plume when the plume is within the property
boundary, while cleanup, including cleanup through natural attenuation pro-
cesses in conjunction with appropriate monitoring, is proceeding. The depart-
ment also is authorized, pursuant to criteria provided for in this paragraph,
to temporarily extend the point of compliance bevond the property boundary
with appropriate monitoring, if such extension is needed to facilitate natural
attenuation or to addresB the current conditions of the plume, provided human
health, public safety, and the environment are adequately protected. Tempo-
rary extension of the point of compliance bevond the property boundary, as
provided in this subparagraph, shall include notice to local governments and
owners of any property into which the point of compliance is allowed to
extend.
3. The appropriate site-specific cleanup goal. The site-specific cleanup goal
shall be that all petroleum contamination sites ultimately achieve the applica-
ble cleanup target lfevels provided in this paragraph. However, the department
is authorized to allow concentrations of the petroleum product's chemicals of
concern to temporarily exceed the applicable cleanup target levels while
cleanup, including cleanup through natural attenuation processes in conjunc-
tion with appropriate monitoring, is proceeding, provided human health, pub-
lic safety, and the environment are adequately protected.
4. The appropriateness of using institutional or engineering controls. Site
rehabilitation programs mav include the use of institutional or engineering
controls to eliminate the potential exposure to petroleum product's chemicals
of concern to humans or the environment. Use of such controls must be
preapproved bv the department and institutional controls shall not be ac-
quired with funds from the Inland Protection Trust Fund. When institutional
or engineering controls are implemented to control exposure, the removal of
such controls must have prior department approval and must be accompanied
immediately bv the resumption of active cleanup, or other approved controls,
unless cleanup target levels pursuant to this paragraph have been achieved.
5. The additive effects of the petroleum product's chemicals of concern.
The synergistic effects of petroleum product's chemicals of concern shall also
be considered when the scientific data becomes available.
6.1. Individual site characteristics which shall include, but not be limited
to. the current and projected use of the affected groundwater in the vicinity
of the site, current and projected land uses of the area affected bv the contami-
nation. the exposed population, the degree and extent of contamination, the
15
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Ch. 06-277
LAWS OF FLOIIIDA
Ch. 96-277
rate of contaminant migration, the apparent or potential rate of contaminant,
degradation through natural attenuation processes, the location ofthe nlrnnp
and the potential for further migration in relation to site property boundaries
rrA, Applicable state water quality standards.
a. Cleanup target levels for petroleum products' chemicals of concern
found in groundwater shall be the applicable state water quality standards.
Where such standards do not exist, the cleanup target levels for groundwater
shall be based on the minimum criteria specified in department rule. The
department shall consider the followjng. as appropriate, in establishing the
applicable minimum criteria: calculations using a lifetime cancer risk level of
1.0E-6; a hazard index of 1 or less: the beat achievable detection limit: the
naturally occurring background concentration: or nuisance, organoleptic, and
aesthetic considerations.
b. Where Burface waters are exposed to petroleum contaminated ground-
water. the cleanup target levels for the petroleum product's chemicals of
concern shall be baaed on the surface water standards as established bv de-
partment rule. The point of measuring compliance with the surface water
standards shall be in the groundwater immediately adjacent to the surface
water body.
8i3r Whether deviation from state water quality standards or from estab-
lished criteria is appropriate., The department may issue a "NoFurtherAction
Order" based upon the degree to which the desired cleanup target level is
achievable and can be reasonably and cost-effectively implemented within
available technologies or engineering and institutional control strategies.r-ex-
cept that, Where a state water quality standard is applicable, a such deviation
may not.result in the application of cleanup target levels standard more
stringent than said standard. In determining whether it is appropriate to
establish alternate cleanup target levels at a site, the department mav consider
the effectiveness of source removal that has been completed at the site and the
practical likelihood of: the use of low yield or poor quality groundwater: the
use of groundwater near marine surface water bodies: the current and pro-
jected use of the affected groundwater in the vicinity of the site: or the use of
groundwater in the immediate vicinity of the storage tank area, where it has
been demonstrated that the groundwater contamination is not migrating away
from such localized source: provided human health, public safety, and the
environment are adequately protected.
9. Appropriate cleanup target levels for soils.
a. In establishing soil cleanup target levels for human exposure to petro-
leum product's chemicals of concern found in soils from the land surface to 2
feet below land surface, the department shall consider the following, as appro-
priate: calculations using a lifetime cancer risk level of 1.0E-6; a hazard index
of 1 or less: the best achievable detection limit: or the naturally occurring
background concentration.
h. Leachabilitv-based soil target levels shall be based on protection of the
groundwater cleanup target levels or the alternate cleanup target levels for
16
CODING: Words striken are deletions; words underlined are additions.
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Ch. 96-277
LAWS OF FLORIDA
Ch. 96-277
groundwater established-pursuant to this paragrabhyas'appfopTiate. Source
removal and other cost-effective alternatives-that are technologically.feasible
shall be considered in achieving the leachabilitv Boil target levels established
bv the department. The leachabilitv goals shall not be applicable if the depart-
ment determines, based upon individual site characteristics, that petroleum
products' chemicals of concern will not leach into the groundwater at levels
which pose a threat to human health and safety or the "environmerit.
However, nothing in this paragraph shallbe construed to restrict the depart-
ment from temporarily postponing completion of any site rehabilitation pro-
gram for which funds are being expended whenever such postponement is
deemed necessary in order to make funds available for rehabilitation of a
contamination site with a higher priority status.
(c) The department shall require source removal, if warranted and cost-
effective. at each site eligible for restoration funding from the Inland Protec-
tion Trust Fund in the order established bv the priority ranking system pursu-
ant to paragraph (a). Once source removal at a site is complete, the depart-
ment shall reevaluate the site to determine the degree of active cleanup needed
to continue. Further, the department shall-determine if the reevaluated site
qualifies for monitoring only or if no further aotion is required to rehabilitate
the site. If additional site rehabilitation is necessary to reach no further action
status, the department is encouraged to utilize natural attenuation and moni-
toring where site conditions warrant.
(7) DEPARTMENTAL DUTY TO SEEK RECOVERY AND REIM-
BURSEMENT.—
(c) If the department initiates an enforcement action to clean up a contam-
inated site and determines that the responsible party is financially unable to
undertake complete restoration of the contaminated site, that the current
property owner was not responsible for the discharge when the contamination
first occurred, or that the state's interest can best be served by the-fespensible
party conducting cleanup, the department may enter into an agreement with
the responsible party or property owner whereby the department agrees to
Conduct site rehabilitation and the responsible party or property owner agrees
to nav for the portion of the cleanup costs that are within such party's or
owner's financial capabilities as determined bv the department r-eimburse-fche
Gleanup-^ost-Gr-a-poFtioR-of-the-cleainup-costr^Phe-reimbuFSement-request^hall
depaptmentshall-be-obligated-tfweimburee-only-suGh-cleanup-or-poFtion-of-the
Gleanup-as-lhe-partiea-have-agfeed-is-beyond-the-financial-capability-of-the
rosponsible-party-OE-property-owner, taking into consideration the party's net
worth and the economic impact on the party. ^
(9) EARLY DETECTION INCENTIVE PROGRAM.—To encourage
early deleiillOli, lupu^ling, and cleanup ol contamination from leaking petro-
leum storage systems, the department shall, within the guidelines established
in this subsection, conduct an incentive program which shall provide for a 30-
month grace period ending on December 31, 1988. Pursuant thereto:
(b) When reporting forms become available for distribution, all sites in-
volving incidents of contamination from petroleum storage systems initially
17
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Ch. 98-277 LAWS OF FLORIDA Ch. 96-277
reported to the department at any time from midnight on June 30, 1986, to
midnight on December 31, 1988, shall be qualified sites, provided that such a
complete written report is filed with respect thereto within a reasonable time.
Subject to the delays which may occur as a result of the prioritization of sites
under paragraph (6)(a) for any qualified.site, costs for activities described in
paragraphs (4)(a)-(e) shall be absorbed at the expense of the fund, without
recourse to reimbursement or.recovery, with the following exceptions:
1. The provisions of this subsection shall not apply to any site where the
department has been denied site access to implement the provisions of this
section.
2. The provisions of this subsection shall not be construed to authorize or
require reimbursement from the fund for costs expended prior to the begin-
ning of the grace period, except as provided in subsection (12).
3.a. Upon discovery by the department that the owner or operator of a
petroleum storage system has been grossly negligent in the maintenance of
such petroleum storage system; has, with willful intent to conceal the existence
of a serious discharge, falsified inventory or reconciliation records maintained
with respect to the site at which such system is located; or has intentionally
damaged such petroleum storage system, the site at which such system is
located shall be ineligible for participation in the incentive program and the
owner shall be liable for all costs due to discharges from petroleum storage
systems at that site, any other provisions of chapter 86-159, Laws of Florida,
to the contrary notwithstanding. For the purposes of this paragraph, willful
failure to maintain inventory and reconciliation records, willful failure to make
monthly monitoring system checks where such systems are in place, and
failure to meet monitoring and retrofitting requirements within the schedules
established under chapter 62-761 17-61, Florida Administrative Code, or viola-
tion of similar rules adopted by the department under this chapter, shall be
construed to be gross negligence in the maintenance of a petroleum storage
system.
b. The department shall redetermine the eligibility of petroleum storage
systems for which a timely EDI application was filed, but which were deemed
ineligible by the department, under the following conditions-
(I) The owner or operator, on or beiore March 31, 1991, shall submit, in
writing, notification that the storage system is now in compliance with depart-
ment rules adopted pursuant to s. 376.303, and which requests the department
to reevaluate the storage system eligibility; and
(II) The deportment verifies the storage system compliance based on a
compliance inspection.
Provided, however, that a site may be determined eligible by the department
for good cause shown, including, but not limited to, demonstration by the
owner or operator that to achieve compliance would cause an increase in the
potential for the spread of the contamination.
c. Redetermination of eligibility pursuant to sub-subparograph b. shall not
be available to:
18
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Ch. 96-277
LAWS OF FLORIDA
Ch. 96-277
(I) Petroleum storage systems owned or operated by the Federal Govern-
ment.
(II) Facilities that denied site access to the department.
(III) Facilities where a discharge was intentionally concealed.
(IV) Facilities that were denied eligibility due to:
(A) Absence of contamination, unless any such facility subsequently estab-
lishes that contamination did exist at that facility on or before December 31,
1988.
(B) Contamination from substances that were not petroleum or a petro-
leum product.
(C) Contamination that was not from a petroleum storage system.
d. EDI applicants who demonstrate compliance for a site pursuant to sub-
subparagraph b. are eligible for the Early Detection Incentive Program and
site rehabilitation funding pursuant to subsection (5) and a. 376.30711. the
Reimbursement-Program. Unless the-reepOBeibls-peraoB-certifies-to-thtHde-
partmont in writing-that ho-or-ehe-qualifioa^as a omall-busiHe66-undeF-6.
2g&3Q3(4)y4he-eligible-flppli€ank6haU-imtiats-and-C9mplete-sit&-rehabvlitati&n
and soak roimburaement^mFeuant-to-subaection (12). The-requirementa-of-this
Bub-ftubparagraph-ehal] not apply-if4h&-responaible-pef6on-€an-dem&n&trate
to tho depaftment-an-«6e»onM6-haFdship-du&-to4he-nunib8P-ef-6ites-Qr4he-laGk
ef-tevenue or creditrjn-auch-a-situation) the department-may-appmve-a-plan
thak-will-requiE&-th8-fS8ponsible-p«rson-tG-&emplGt&-6om&-or-all-of-t,h&-task8
fof-th&-appl46able sites, Tho plan-flhalt-includa-which-taaks-and-eites-shall-be
If, in order to avoid prolonged delay, the department in its discretion deems
it necessary to expend sums from the fund to cover ineligible sites or costs as
¦>.t forth in this paragraph, the department may do so and seek recovery and
;imbursement therefor in the same manner and in accordance with the same
procedures as are established for recovery and reimbursement of sums other-
wise owed to or expended from the fund.
(10) VIOLATIONS; PENALTY.—It is unlawful for any person to:
(a) Falsify inventory or reconciliation records maintained in compliance
with chapter 62-761 and chapter 62-762 1-7-61, Florida Administrative Code,
with willful intent to conceal the existence of a serious leak; or
(b) Intentionally damage a petroleum storage system.
Any person convicted of such a violation shall be guilty of a felony of the third
degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(11)(al VOLUNTARY CLEANUP.—Nothing in this section chapter-86-
159,-Law&-of-FlGFida, shall be deemed to prohibit a person from conducting
19
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Ch. 96-277
LAWS OF FLORIDA
Cb. 96-277
site rehabilitation either through his or her own personnel or through responsi-
ble, response action contractors or subcontractors when such nerson ia nnt
seeking site rehabilitation funding from the fund. Such voluntary cleanups
must meet all applicable environmentalstandards.
NON-REIMBURSABLE VOLUNTARY CLEANUP—For «itp« with ftlT
refegfes reported prior to January 1.1995. the department shall issue a deter- V*
mination of ^oFurther Action" at sites ranked with a total priority score of *"
10 or less, wnicn meeFOie tollowing conditions: *
No free product exists in wells, boreholes, subsurface utility conduits, or
vaults or-buildings and no other fire or explosion hazard exists as a result of
a release of petroleum products.
g. No excessively contaminated soil, as defined bv department rule, exists
onsite as a result of a release of petroleum products.
3. Public supply wells for consumptive use of water expected to be affected
bv*the site shall not bo located within a 1/2 mile radius of the site: private
supply wells for consumptive use of water expected to be affected by the site
shall not be located within a 1/4 mile radius of the site: and there must be no
current or projected consumptive use of the water affected bv the site for at
least the following 3 years. Where appropriate, institutional controls meeting
the requirements of subparagraph (5)(b)4. may be required bv the department
to meet these criteria.
4. The release of petroleum products at the site shall not adversely affect
admcent surface waters, including their effects on human health and the
environment
5^ The area of groundwater containing the petroleum products' chemicals
ofconcern in concentrations greater than the boundary values defined in
subparagraph 7. is less than 1/4 acre.
Soils onsite that are subject- to human exposure found between land
surface and 2 feet below land surface shall meet the criteria established pursu-
ant to sub-subparagraph (5)(b)9.a. Where appropriate, institutional or engi-
neering controls meeting the requirements of subparagraph (5Hb)4. may be
required bv the department to meet these criteria.
J7. Concentrations of the petroleum products' chemicals of concern in
groundwater at the property boundary of the real property on which the
petroleum contamination originates shall not exceed the criteria established
pursuant to sub-subparagraph (5Hb)7.'a. Where appropriate, institutional or
engineering controls meeting the requirements of subparagraph (5)(b)4. may
be required bv the department to meet these criteria.
The department is authorized to establish alternate cleanup target levels
for on-site nonboundarv wells pursuant to the criteria in subpriragraph (5Hb)8.
jj. A scientific evaluation that demonstrates that the boundary criteria in
subparagraph 7. will not be exceeded and a 1-year site-specific groundwater
monitoring plan approved in advance bv the department validates the scien-
tific evaluation. If the boundary criteria in subparagraph 7. is exceeded at any
20
CODING: Words utriken arc deletions: wordR Sindcrljnccj nre additions.
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Ch. 96-277
LAWS OF FLORIDA
Ch. 96-277
time, the department may oraer an extension of the monitoring period "for up
to 12 additional months from the time of the excess reading. The department'
shall determine the adequacy of the groundwater-monitoring system at a site.
All wells required bv the department pursuant to this paragraph shall be
installed before the monitoring period begins.
10. Costs associated with activities performed pursuant to this paragraph
for sites which qualify for a determination of "No Further Action" under this
paragraph shall not be reimbursable from the Inland Protection Trust Fund.
(12) REIMBURSEMENT FOR CLEANUP EXPENSES.—Except as
provided in section 2(3) of chapter95-2. Laws of Florida, this subsection shall
not &pplv to any site rehabilitation program task initiated after March 29.
1995. Effective August 1. 1996. no further site rehabilitation work on sites
eligible for state-funded cleanup from the Inland Protection Trust Fund shall
be eligible for reimbursement pursuant to this subsection. The person respon-
sible for conducting site rehabilitation mav seek reimbursement for site reha-
bilitation program task work conducted after March 28. 1995. in accordance
with section 2(2) and (3) of chapter 95-2. Laws of Florida, regardless of
whether the site rehabilitation program task-is completed. A site rehabilitation
program task shall be considered to be initiated when actual onsite work or
engineering design, pursuant to chapter 62-770. Florida Administrative Code,
which is integral to performing a site rehabilitation program task has begun
and shall not include contract negotiation and execution, site research, or
project planning. All reimbursement applications pursuant to this subsection
must be submitted to the department bv December 31. 1996. The department
shall not accept any applications for reimbursement or pay any claims on
applications for reimbursement received after that date.
(a) Legislative findings.—The Legislature finds and declares thatj-in-ordeF
to provide-foF rehabilitation of as-many-contamination-eites-as-possibleras
soon as po6sibl&,-voluntaFy-Febabilitation-of contamination sites should be
encouragedr-prGvided-khat^euch-rehabilitation-iB conducted in a manner and
to a level of completion which will protect the public health, safety, and
^welfare and will minimize damage to the environment.
(b) Entitlement; Conditions.—
1. The owner, operator, or his or her designee of a site which is eligible for
restoration funding assistance in the EDI, PLRIP, or ATRP programs shall
be reimbursed entltled-to-reimbursement from the Inland Protection Trust
Fund of allowable costs at reasonable rates incurred on or after January 1,
1985, for completed program tasks as identified in the department rule pro-
mulgated pursuant to paragraph (5)(b), or uncompleted program tasks pursu-
ant to chanter 95-2. Laws of Florida, subject to the conditions in this section.
It is unlawful for a site owner or operator, or his or her designee, to receive any
remuneration, in cash or in kind, directly or indirectly from the rehabilitation
contractor.
2,—Sites-which-ape-eligibleJoMtate-eontMicted-ol&aiiup-may-be-enter-ed-into
th«-F«imburs©m6nt-prog«im^Aft6i^Iuly4T4-9941-onG&-fl-faGilUy-iB-ent6Ffid-irvto
the-r«imbuf6ement-pFOgramr6tat&-contracted-cleanuf>-6hall-not-be-available
and-the-owfleFreperatoiyor-his-or-he^-deBignee-must-Gomplete-site-reetora tion.
21
CODING: Words striken lire deletions; words underlini'd lire mlditions.
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Ch. 96-277
LAWS OF FLORIDA
Ch. 96-277
2.3. Nothing in this subsection shall be construed to authorize reimburBe-
ment to any person for costs of contaminated soil treatment or dispoflnlthnf.
does not meet the applicable rules of this state for such treatment or disnnsnl
state governrng-aoil-theFmal-treatraent-faGilities, including all general permit-
ting, state air emission standards, monitoring, sampling, and reporting rules
more specifically described in department rules..
(c) Legislative intent—Due to the value of the potable water of this state,
it is the intent of the Legislature that the department initiate and facilitate
as many cleanups as possible utilizing the resources of the state. Innal fmvprn.
meots. and the private sector, recognizing that source removal, wherever it is
technologically feasible and cost-effective, shall be considered the nrimnrv
initial response to protect public health, safety, and the environment.
i.—It-is-the-inient-of-the-LegiBlafcuEft-that-ihoeo responsible poreons-who
reimbursement-pursuant to this-eubseGtioiv-rather-than allow the-stete-te
Gonduek-the-Gleanup-pureuant to subsection (9). To achieve-this goal, the
department-ahall-require-owners or operators of all-sites which were-gtanted
rrtnoo cKnnm
Utl uU>U Ul a IT ITT
I' llfV/U
2,—This-provision-fer-mandatoiy-eleanup-by-the rosponsible-person-aR-fle-
mloss by Juno 30, lg94, 60
been-entered-into-the-reimbursement-^ptioRr
3,—Sites that qualify for state cleanup-f&r-whiGh-title-i8-6ubsequenUy4rans-
fGr-profit-Gorporation-flhall-b&-en4er6d-into-the-reimbuF6emenfc-optionr-pro-
tho-sit-o for-whiGh-the-repreeentaUon-waB-submitked-ineligible-for-aU-funding
assistance^Ihe-department-ehall-reGGver-its-GOsts-HiGurred-for-FestGFatiGn-of
5,—Tbe-owne^of^operatoF-flhall-meet-the-submiUal-8€hedule4nGluded-m4he
eligible for eta to conductod cleanup and no longer-qualify-fer-efcate-GonduGked
Gleanup^the-submittal SGhedule-shall-fltar-t-Gn-the-date-of-notiGe-from-fche
provided-there-are-suffiGient-unenGumbered-funds-in-the-Inland-ProteGfcion
Cfoist-gvind^Che-dopartment shall issue such notices baaed on the potential
r-aj&-adople
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Ch. 96-277
LAWS OF FLORIDA
Ch.. 90-277
4t reimburse actual and reasonable costs for site rehabilitation. The de-
partment shall not reimburse interest on the amount of reimhurseable costs
for any reimbursement application. However, nothing herein shall affect the
department's authority to pav interest authorized under prior law.;
2,—Reimburse intoroot on-the-amount-o^reimburaable-costa-for-appliGations
highest lovel and the amount of unoncumbored fuflds-in-the-tnland Protection
paymonte chaU-resuma-for-applicationa-filgd-after-the-date-of-publication-of
notice that interest is again-available.-Thft^department-BhaH-conBider—the
avaUability-«f-unen€umbered-fund&-in-flGhedubng-cleamip8^->>Jothing-herein
shaU-affeet-the-departmentie-authority-to-pay-inteFest-authoFiaed-under-prioF
IQ ry
IQlTl
Due4o-th&-valuo of Florida;6-potable-wateFT-it-i64h&-intent-of-th&-LegiBlatufe
tbat-tbe-dep&ftment-initiate-and-faGilitate-aB-many-Gleanups-aB-possible-utilis-
depaftment-is-authorized-to adopt-neeessary-fules-and-enter-into-contraets-to
GaFry-ouk-the-intent-e^-this-Bubsection,
ntends-to-fila for reimbursement-shall-submit
eleanupr-Such-doeumentation-shall-not-be-Fequired-if-the-6ite-has-previou6ly
boon dotor-miaed-eligible-fop-etate-cleanupr-Within-GO-days-artei^reGeiplo^tfueh
notico-aBd-sufficieflt-doeumeivtation-of-site-eonditionfr-ppior-te-initiatioR-of
6>eaftupr-the-dopartmeBt-Bfaall-determine-whetheM.he-per6on-i&-ineligible-to
apply-foweimbuFSement-pursuanUto-the-CFiteria-for-eligibility-under-subsec-
tion-(9)-afld-eh&]4-n©tify-the-appliGaftt-a&-to-hi&-or-heF-eligibility-in-wFiting,
(e)(fi Records.—The person responsible for conducting site rehabilitation,
or his or her agent, shall keep and preserve suitable records as follows: of
L Hydrological and other site investigations and assessments; site rehabili-
tation plans; contracts and contract negotiations; and accounts, invoices, sales
tickets, or other payment records from purchases, sales, leases, or other trans-
actions involving costs actually incurred related to site rehabilitation. Such
records shall be made available upon request to agents and employees of the
23
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Uii. 96-277
LAWS OF FLORIDA
Ch. 90-277
deportment, during regular business hours and at other times-upon written
request of the department.
"L In addition, the department may from time-to time request submission
of such site-specific information as it may require, unless a waiver or variance
from auch department request is granted pursuant to paraeraph (k).
3. All records of costs actually incurred for cleanup shall be certified by
affidavit to the department as being true and correct.
HKg) Application for reimbursement.—Any eligible person who performs
a site rehabilitation program or performs site rehabilitation program tasks
such as preparation of site rehabilitation plans or assessments; product recov-
ery; cleanup of groundwater or inland surface water; soil treatment or removal;
or any other tasks identified by department rule developed pursuant to sub-
section (5) pnragraph45Wb), may apply for reimbursement. Such applications
for reimbursement must be submitted to the department on forms provided
by the department, together with evidence documenting that site rehabilita-
tion progrom tasks wore conducted or completed in accordance with depart-
ment rule developed pursuant to subsection (5) paragraph (5)(b), and other
such records or information as the department requires. The reimbursement
application and supporting documentation shall be examined by a certified
public accountant in accordance with standards established by the American
Institute of Certified Public Accountants. A copy of the accountant's report
shall be submitted with the reimbursement application. Applications for reim-
bursement shall not be approved for site rehabilitation program tasks which
have not been completed, except for-the task of remedial action and except for
uncompleted program tasks pursuant to chapter 95-2. Laws of Florida, and
this subsection. Applications for remedial action may be submitted semiannu-
ally nt the discretion of the person responsible for cleanup. After an applicant
has filed an application with the department and before payment is made, the
applicant may assign the right-to payment to any other person, without re-
course of the assignee or assignor to the state, without affecting the order in
which payment is made. Information necessary to process the application shall
be requested from and provided bv the assigning applicant Proper notice of
the assignment and assignment information shall be made to the department
which notice shall be signed and notarized by the assigning applicant.
{gl(h) Review.—
1. Provided there are sufficient unencumbered funds available in the In-
land Protection Trust Fund, or to the exteot proceeds of debt obligations are
available for the payment of existing reimbursement obligations pursuant to
s. 376,3075. the department shall have 60 days to determine if the applicant
has provided sufficient information for processing the application and shall
request submission of any additional information that the department may
require within such 60-day period. If the applicant believes any request for
additional information is not authorized, the applicant may request a hearing
pursuant to s. 120.57. Once the department requests additional information,
the department may request only that information needed to clarify euch
additional information or to answer new questions raised by or directly related
to such additional information.
21
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Ch. 96-277
LAWS OF FLORIDA
Ch. 96-277
2. The department shall deny or approve the application for reimburse-
ment within 90 days after receipt of the last jtem. of. timely requested addi-
tional material, or, if no additional material is requested, within 90 days of the
¦^lose of the 60-day period described in subparagraph 1., unless the total review
period is otherwise extended by written mutual agreement of the-applicant
md the department.
3. Final disposition of an application shall be provided to the applicant in
writing, accompanied by a written explanation setting forth in detail the
reason or reasons for the approval or denial. If the department fails to make
a determination on an application within the time provided in subparagraph
2., or denies an application, or if a dispute otherwise arises with regard to
reimbursement, the applicant may request a hearing pursuant to s. 120.57.
(hlffl—Sehwiule-fsF Reimbursement.—Upon approval of an application for
reimbursement, reimbursement for reasonable expenditures of a site rehabili-
tation program or site rehabilitation program tasks documented therein shall
bo due-and-payable within 10 daya-of approval of tho applieatiorvpFovided
Trust Fund. Payment shall be made in the order in which the department
receives completed applicationsr-ufllooa-otherwiae-provided in thfr-General
Appropriations Act. Effective January 1.199T>all unpaid reimbursement ap-
plications are eubiect to payment on the following terms: The department
shall develop a schedule of the anticipated dates of reimbursement of applica-
tions submitted to the department pursuant to this subsection. The schedule
shall specify the projected date of payment based on eoual monthly payments
and projected annual revenue of S100 million. Based on the schedule, the
department shall notify all reimbursement applicants of the projected date of
payment of their applications. The department shall direct the Inland Protec-
tion Financing Corporation to pav applicants the present value of their appli-
cations as soon as practicable'after approval bv the department, subject to the
availability of funds within the Inland Protection Financing Corporation. The
present value of an application shall be based on the date on which the
department anticipates the Inland Protection Financing Corporation will set-
tle the reimbursement application and the schedule's projected date of nnv-
it and shall use 3.5 percent as the annual discount rate. The determination
he amount of the claim and the projected date of payment shall be subject
. 120.57. F.S. ReHabur-eeraenfc-payme'ntfer-a-sifce-rehabilitfition.program-or
partmont rule dov6loped-pur6nanfc-te-par«gfaph-(5)(b), oxcopt-that-a-person
who-underiakes-the-progfam-taBk-sf^-remediai-aGtion-and-is-weFking-towBrd
reeevver-upoa-requesfcr-intewB-feirabuFaement-semiaiwiually wbile-the-rsme-
dial-action-i6-taking-plaGe,
(i}(j) Liberal construction.—With respect to site rehabilitation initiated
prior to July 1, 1986, the. provisions of this subsection shall be given such
liberal construction by the department as will accomplish the purposes set.
forth in this subsection. With regard to the keeping of particular records or the
giving of certain notice, the department may accept as compliance action by
a person which meets the. intent of the requirements set forth in this subsec-
tion.
25
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Ch. 90-277
LAWS OF FLORIDA
Ch. 90-277
(i)W Reimbursement-review contracts.—The department may contract
with entities capable of processing or assisting in the review of reimbursement
applications. Any purchase of such services shall not be subject to chapter 287.
(1) EfficienGy-etudy.—
following-groupa and organiaatieao: tho Florida Potroloum Council) tho FIoe-
ida-Petfel&uta-Maritotors Association, Associated Indusfcries-of-Floridar-the
aupport-to-the-effiGiency-taok forco.
tions-otHjepartmenfc-reqotfements-under these progfams-to-assist-m-aehieving
raaximum-effieiencyr
appointroents-of-somo or all of the-saembers.
5.—T-he-task-foFGe-ehali-make-reper-te-as-necessary to the-secretary to ire-
prove-the-efficienGy-oHhese-pfogFaraSt
6,—T-he-members-ok-the-ta8k-foEee-shall-aer-v&-w4thout-Gompen&atiQn-or-peF
a nd - ma te r-i ale-to-the-task-fo pee.
(kj(m) Audit3.—
1. The department is authorized to perform financial and technical audits
in order to certify site restoration costs and ensure compliance with this
chapter. The department shall seek recovery of any overpayments based on
the findings of these audits. The department must commence any audit within
26
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Ch. 96-277
LAWS OF FLORIDA
Ch. 90-277
5 years after the date of reimbursement, except in cases where the department
alleges specific facta indicating fraud.
Upon determination by the department that any portion of costs which
^Ive been reimbursed are disallowed, the department shall give written notice
to the applicant setting forth with specificity the allegations of fact which
justify the department's proposed action and ordering repayment of disal-
lowed costs within 60 days'of notification of the applicant
3. In the event the applicant does not make payment to the department
within 60 days of receipt of such notice, the department shall seek recovery
in a court of competent jurisdiction to recover reimbursement overpayments
made to the person responsible for conducting site rehabilitation, unless the
department finds the amount involved too small or the likelihood of recovery
too uncertain.
4. In addition to the amount of any overpayment, the applicant shall be
liable to the department for interest of 1 percent per month or the prime rate,
whichever is less, on the amount of overpayment, from the date of overpay-
ment by the department until the applicant satisfies the department's request
for repayment pursuant to this paragraph. The~calculation of interest shall be
tolled during the pendency of any litigation.
5. Financial and technical audits frequently are conducted under this sec-
tion many years after the site rehabilitation activities were performed and the
costs examined in the course of the audit were incurred bv the person responsi-
ble for site rehabilitation. During the intervening span of years, the depart-
ment's rule requirements and its related guidance and other rionrule policy
directives may have changed significantly. The Legislature finds that it may
be appropriate for the department to provide relief to persons subject to such
requirements in financial and technical audits conducted pursuant to this
section.
a. The department is authorized to grant variances and waivers from the
:umentation requirements of paragraph (e)2. and from the requirements of
es applicable in technical and financial audits conducted under this section.
fiances and waivers shall-be granted when the person responsible for site
rehabilitation demonstrates to the department that application of a financial
or technical auditing requirement would create a substantial hardship or
would violate principles of fairness. For purposes of this subsection, "substan-
tial hardship" means a demonstrated economic, technological, legal, or other
type of hardship to the person requesting the variance or waiver. For purposes
of this subsection, "principlesof fairness" are violated when the application of
a requirement affects a particular person in a manner significantly different
from the way it affects other similarly situated persons who are affected bv the
requirement or when the requirement is being applied retroactively without
due notice to the affected parties.
b. f\ person whose reimbursed costs are subject to a financial and technical
audit under this section may file a written request to the department for gront
of a variance or waiver. The request shall specify:
27
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Ch. 96-277
LAWS OF FLORIDA.
Ch. 96-277
1. The requirement from which a variance or waiver is reouested-
2. The type of action requested:
3. The specific facta which would justify a waiver or variance.
4. The reason or reasons why the requested variance or waiver would serve
the purposes of this section.
c. Within 90 davs after receipt of a written request for variance or waiver
inder this subsection, the department shall grant or deny the request. If the
¦oouest is not granted or denied within 90 davs of receipt, the request shall be
Icemed approved. An order granting or denying the request shall be in writing
md shall contain a statement of the relevant facts and reasons supporting the
lepartment's action. The department's decision to grant or deny the petition
ihall be supported bv competent substantial evidence and is subject to ss.
120.569 and 120.57. Once adopted, model rules promulgated bv the Adminis-
xntion Commission under s. 120.542 shall govern the processing of requests
inder this provision; however, the department mnv rpnngsts prior to
_the adoption of those model rules. , —-— TcpP '—¦—.
(13) PETROLEUM CLEANUP PARTICIPATION PROORAM—To en-
courage detection, reporting, and cleanup of contamination caused bv dis-
charges of petroleum or petroleum products, the department shall, within the
guidelines established in this subsection, implement a cost-sharing cleanup
program to provide rehabilitation funding assistance for all property contami-
nated bv discharges of petroleum or petroleum products occurring before
January 1. 1995. subject to a cooavment provided for in a preapproved site
rehabilitation agreement Eligibility shall be subject to an annual appropria-
tion from the Inland Protection Trust Fund. Additionally, funding for eligible
sites shall be contingent upon annual appropriation in subsequent years. Such
continued state funding shall not be deemed an entitlement or a vested right
under this subsection. Eligibility in the program shall be notwithstanding anv^
other provision of law, consent order, order, judgment, or ordinance to the-J-
contrarv.
(all. The department shall accept any discharge reporting form received
prior to January 1. 1995. aa an application for this program and the facility
owner or operator need not reapply.
2. Owners or operators of property contaminated bv petroleum or petro-
leum products from a petroleum storage system may apply for such program
bv filing a written report of the contamination incident, including evidence
that such incident occurred prior to January 1. 1995. with the department.
Incidents of petroleum contamination discovered after December 31. 1994. at
sile9 which have not9tored petroleum or petroleum products for consumption,
use, or sale after such date shall be presumed to have occurred prior to January
1. 1995. An operator's filed report shall be deemed an application of the owner
for all purposes. Sites reported to the department after December 31. 1998-
shall not be eligible for this program.
(bj Subject to annual appropriation from the Inland Protection Trust
Fund, sites meeting the criteria of this subsection are eligible for up to
28
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Ch. 06-277
LAWS OF FLORIDA
Ch. 00-277
$300.000 of site rehabilitation funding assistance in nrinritv order pursuant to
subsection (5) nnd 9. 376.30711.
(c) Upon notification bv the department that rehabilitation funding assist-
ance is available for the site_pursuant to subsection (5)-and-s.- 376.30711. the
owner, operator, or person otherwise responsible for site rehabilitation shall
provide the department with a limited conteminatinn_B?)gp(p^^^. fgporf nnTl
shall enter into a preapproved site rehabilitation agreement with the depart-
ment and a contractor qualified under s. 376.30711(2)(b). The agreement shall
provide for a 2j^?ercent copavment bv the owner, operator, or. person other-
wise responsible Tor^on5Tictuig site rehabilitation. The owner, operator or
person otherwise responsible for conducting site rehabilitation shall ade-
quately demonstrate the ability to meet the copavment obligation. The limited
contamination assessment report and the copavment costs mav be reduced or
eliminated if the owner and all operators responsible for restoration under s.
376.308 demonstrate that thev are financially unable to comply with the
copavment and limited contamination assessment report requirements. The
department shall take into consideration the owner's and operator's net worth
in making the determination of financial ability.
(d) No report of a discharge made to the department bv any person in
accordance with this subsection, or anv rules-adopted pursuant hereto, shall
be used directly as evidence of liability for such discharge in any civil or
criminal trial arising out of the discharge.
(e) Nothing in this subsection shall be construed to preclude the deport-
ment from pursuing jjenaltigs in accordance with s. 403.141 for violations of
anv law or any rule, order, permit, registration, or certification adopted or
issued bv the department pursuant to its lawful authority.
(f) Upon the Tiling of a discharge reporting form under paragraph (a).
neither the department nor anv local government shall pursue anv judicial or
enforcement action to compel rehabilitation of the discharge. This paragraph
shall not prevent anv such action with respect to discharges determined ineli-
gible under this subsection or to sites for which rehabilitation funding assist-
ance is available in accordance with subsection (5) and s. 376.30711.
(g) The following shall be excluded from participation in the program:
1. Sites at which the department has been denied reasonable site access to
implement the provisions of this section.
2. Sites that were active facilities when owned or operated bv the Federal
Government.
3._ Sites that are identified bv the United States Environmental Protection
Agency to be on. or which qualify for listing on. the National Priorities List
under Superfund. This exception does not annlv to-those sites for which
eligibility has been requested or granted as of the effective date of this act
under the Early Detection Incentive Program established pursuant t.o section
15 of chapter 86-159. Laws of Florida.
4. The contamination is covered under the Early Detection Incentive Pro-
gram. the Abandoned Tank Restoration Program or the Petroleum Liability
29
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Ch. 06-277
LAWS OF FLORIDA
Ch. 96-277
and Restoration Insurance Program, in which case 9ite rehabilitation funding
Assistance shall continue under the respective program:
5. Anv pereon who knowinglv^couires titleYo contaminated property ahall
not be eligible for restoration funding pursuant to this subsection. The provi-
sions of this subsection do not relieve any person who has acquired title
subsequent to July 1. ^992. from the duty to establish by a preponderari6e~6f
the evidence thai"or she undertook, at the time of acquisition, all appropri-
ate inquiry into the previous ownership and use of the property consistent with
good commercial or customary practice in an effort_tOnlnjmizeliabilitv. as
required bv s^TR^OSn^^) _
Section 6. Section 376.30711, Florida Statutes, is amended to read:
376.30711 Preapproved
tion, effective March .29 27, 1995.—
site rehabilita-
(l)(a) The Legislature Finds and declares that the petroleum contamina-
tion site rehabilitation program, as previously structured, has resulted in site
rehabilitation proceeding at a higher rate than revenues can support and at
sites that are not of the highest priority as established in s. 376.3071(5). This
has resulted in a large backlog of reimbursement applications and excessive
costs to the Inland Protection Trust Fund. It is the intent of the Legislature
that contamination site cleanups be conducted on a preapproved basis with
emphasis on addressing first the sites which pose the greatest threat to human
health and the environment, within the availability _of funds in the Inland
Protection Trust Fund, recognizing that source removal, wherever it is techno-
logically feasible and cost-effective and will significantly reduce the contami-
nation or eliminate the spread of contamination, shall be considered to protect
public health and safety, water resources, and the environment.
(b) Effective* March 27, 1995, no further Site rehabilitation work on sites
eligible for state-funded cleanup from the Inland Protection Trust Fund and
pursuant to ss. 376.305(6) and (7), 376.3071(9) and (12), 376.3072, and
376.3073, shall only be eligible for site rehabilitation funding under this section
reiral
ment.
rein)
inont,- f
fegardleefr-o^whetheMi-eite-rehabUitation-pr-egfam-taBk-is-GempletedT After
March 29 27,1995, only persons who have received prior written approval from
the department of the scope of work and costs may continue site rehabilitation
work. In the event of a new release, the facility operator shall be required to
ubulc the source of the discharge. If free product is present, the operator shall
notify the department, which may direct the removal of the free product as
u nreamKoved reimbursable expense pursuant to this section aet. The depart-
ment shall grant approval to continue site rehabilitation based on the this
suction and s. 376.3071(5) i
and-to
uppr-oval-is-fiaug-ht notwithstanclin(j-oth&E-pFQv4BionB-ef-4aw-OE-dQpaptment
30
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Ch. 96-277
LAWS OF FLORIDA .
Ch. 96-277
(2)(a) The department is authorized to use competitive bid procedures or
negotiated contracts for preapproving all costs and rehabilitation procedures
for site-specific rehabilitation projects "through performance-based contracts.
Site rehabilitation shall be conducted according-to the priority ranking order
btablished pursuant to 8. 376.3071(5).
(b) Any contractor performing site rehabilitation program tasks must dem-
onstrate to the department that:
1. The contractor meets all certification and license requirements imposed
bv law.
2. The contractor nas obtained approval of its Comprehensive Quality
Assurance Plan prepare^ under department rules.
(c) The contractor shall certify to the department that such contractor:
1. Complies with applicable OSHA regulations.
2. Maintains workers' compensation insurance for all employees as re-
quired bv the Florida Workers' Compensation Law.
3. Maintains comprehensive general liability and comprehensive automo-
bile liability insurance with minimum limits oE-at least SI million per occur-
rence and $1 million annual aggregate, as shall protect it from claims for
damage for personal injury, including accidental death, as well as claims for
property damage which may arise from performance of work under the pro-
gram. designating the state as an additional insured party.
4. Maintains professional liability insurance of at least $1 million per oc-
currence and $1 million annual aggregate.
5. Has completed and submitted a sw.orn statement under s. 287.133(3)(a).
on public entity crimes
6. Has the capacity to perform or directly supervise the majority of the
work at a site in accordance with s. 489.113(9). Notwithstanding-th&precedmg,
py person conducting a site rohabilitetion-program task in progress-a t-eites
plete-only that program task and-theroafter submit an applieafcion-for-reim-
i*f hAppfi APft ft pn ^qi*o ah /*> n 11 f* 1ct f ^ ol A q i n n •
I'U I vllvl lUVl v) OIIJ UvlOvl l^n/ll\TUvVl I lg"VllVTl" ¦ I VI CUJt W I11UU IQIflvVI \J 11 J v KJ1 ¦ TOtni rm
tien-Assesameivt-RepQPt, or Romedjat-AGtion^lan-prdgram-taskft-in-progrese
a-t-8iteB-wikh-prioHty-rank+ng-6Gore6-b&twe«n-26-and-49-poirite-pursuank-to
plete-only that program ta6k-and-4hereaft«i^subreit an application-for-reim-
bureement-pureuant-to 6. 3764071(12), Plorida-Statut66i-4994^-Supplement.
Persons-conducting the-Remedial. Action-program task at sitos wvth-6GoreB
when-aGtual-onsite-wor-k-or-engineer-Hig-designT-puF&uant-to-chapter-GS-WO,
Flofida-Adminietratjvo Code, which4&4nt-egr-al4o-perfof-ming a site-reliabilite-
31
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(Jh. 96-277
LAWS OF FLOHIDA
Ch. 96-277
(3) Arty person responsible for site rehabilitation who received prior ap-
proval to conduct site reKabilitatioiTand to thereafter submit an' application
or reimbursement, pursuant to section 2(3) of chapter 95-2. Laws of Florida.
mav request approval to conduct site rehabilitation pursuant to this section
(4) Any person responsible for site rehabilitation at a site with a priority
rankingscore nf ^points or more who was performing remedial action activi-
ties pursuant to section w2) of chanter 95-2. Laws of Florida, mav request
approval to complete site rehabilitation pursuant to. this section in order to
avoid disruption in cleanup activities.
(5) (a) Any person who performs the conditions of a preapproved site reha-
bilitation agreement, pursuant to the provisions of this section and s.
376.3071(5). mav file invoices with the department for payment within the
schedule and for the services described in the preapproved site' rehabilitation
agreement. Such invoices for payment must be submitted to the department
on forms provided bv the department, together with evidence documenting
that preapproved activities were conducted or completed in accordance with
the preapproved authorization. Provided there are sufficient unencumbered
funds available in the Inland Protection Trust Fund which have been appro-
priated for expenditure bv the Legislature and provided all of the terms of the
preapproved site rehabilitation agreement have been met, invoices for pay-
ment shall be paid consistent with the provisions of s. 215.422.. After an
¦applicant has submitted its invoices to the department and before payment
is made, the contractor mav assign its right to payment to any other person.
without recourse of the assignee or assignor to the state, and in such cases the
assignee shall be paid consistent with the provisions of s. 215.422. Prior notice
of the assignment and assignment information shall be made to the depart-
ment. which notice shall be signed and notarized bv the assigning party. The
department shall not have the authority to regulate private financial transac-
tions bv which an applicant seeks to account for working capital or the time
vulue of money, unless charges associated with such transactions are added as
a separate charge in an invoice.
(b) Payments shall be made bv the department based on the terms of a
contract for site rehabilitation work. The department may, based on its experi-
ence and the past performance and concerns regarding a contractor retain up
to 25 percent of the contracted amount or use performance bonds to assure
performance. The amount of retainnee or performance bond or bonds, as well
32
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Ch. 06-277 LAWS OF FLORIDA Ch. 90-277
as the terms and conditions shall be a part of the site specific performance-
based contract.
c) The department shall provide certification within 30 davs after notifi-
cation from a contractor that the terms of the contract.for-siterehabilitation
work have been completed; Failure of the department to do bo shall not
constitute a default certification of completion. The department also may
withhold payment if the validity or accuracy of the contractor's invoices or
supporting documents are in question-
ed) Nothing in this section shall be construed to authorize payment to any
person for costs of rnhfominated soil treatment or disposal that does not meet
the applicable rules of this Btate for such treatment or disposal, including all
general permitting, state air emission standards, monitoring, sampling, and
reporting rules more specifically described in department rules.
(e) If anv contractor, fails to perform, as determined bv the department,
contractual duties for site rehabilitation progrnm flairs, the department shall
terminate the contractor's eligibility for participation in the program.
(f) The contractor responsible for conducting site rehabilitation shall keen
and preserve suitable records in accordance with the provisions of 8.
376.3071(12Ke).
(6) It is unlawful for a site owner or operator, or his or her designee, to
receive anv remuneration, in cash or in kind, directly or indirectly, from a
rehabilitation contractor performing site cleanup activities pursuant to this
section.
(7) The department shall conduct a pilot project to determine the effec-
tiveness and feasibility of utilizing competitive bid procedures for procuring
the services necessary to perform site rehabilitation. The department is di-
rected to select a representative sample of sites such that the results of the
project can be compared to other procurement methods. The department shall
submit a report, bv March 1. 1997. to the Governor, the President of the
Senate, and the Speaker of the House bf Representatives. Such report shall
contain, at a minimum: the cost effectiveness of utilizing competitive bid
brocedures; a feasibility review on the department's experience with competi-
tive bidding: a cost comparison of competitive bidding and negotiated con-
tracts for site rehabilitation tasks: and recommendations concerning the use
of competitive bidding.
Section 7. Section 376.30713, Florida Statutes, is created to rend:
f1071q °dvanced cleanup.^-cr
(1) In addition to the legislative findings provided in s. 376.30711. the
Legislature finds and declares:
(a) That the inability to conduct site rehabilitation in advance of a site's
priority ranking pursuant to s. 376.3071(5)(a) may substantially impede or
prohibit property transactions or the proper completion of public works proj-
ects. .
33
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Ch. 96-277
LAWS OF FLORIDA
Ch. 96-277
(b) While the first priority of the state is to provide for protection of the
water-resources of the state: human healthrandthe environmentrthevinhilitv
of commerce ia of equal importance to the state.
(c) It is in the public interest and of substantial-cconomicbenefifto-the
state to provide an opportunity for site rehabilitation to be conducted on a
limited basis at contaminated sites, in advance of the site's priority ranking.
to facilitate property transactions or-public-works projects.
(d) It is appropriate for persons responsible for site rehabilitation to share
the costs associated with managing and conducting preapproved advanced
cleanup, to facilitate the opportunity for preapproved advanced cleanup, and
to mitigate the additional costs that will be incurred bv the state in conducting
site rehabilitation in advance of the site's priority ranking. Such cost sharing
will result in more contaminated sites being cleaned up and greater environ-
mental benefits to the state. The provisions of this section shall only be
available for sites eligible for restoration funding under EDI. ATRP. or
PLIRP.
(2) Beginning January 1.1997. the department ia authorized to approve an
application for preapproved advanced cleanup at eligible sites, prior to fund-
ing based on the site's priority ranking established pursuant to s.
376.3071(5Ha'). in accordance with the provisions of this section. Persons who
qualify as an applicant under the provisions of this section shall only include
the facility owner or operator or the person otherwise responsible for site
rehabilitation.
(a) Preapproved advanced cleanup applications may be submitted between
May 1 and June 30 and between November 1 and December 31 of each fiscal
year. Applications submitted between May 1 and June 30 shall be for the fiscal
year beginning July 1. Initial applications shall be submitted between Novem-
ber 1 and December 31. 1996. An application shall consist of:
1. A commitment to pav no less than 25 percent of the total cleanup cost
deemed recoverable under the provisions of this section along with proof of the
ability to pav the cost share.
2. A nonrefundable review fee of $250 to cover the administrative costs
associated with the department's review of the application.
3. A limited contamination assessment report.
4. A proposed course of action.
The limited contamination assessment report shall be sufficient to support the
proposed course of action and to estimate the cost of the proposed course of
action. Any costs incurred related to conducting the limited contamination
assessment report are not refundable from the Inland Protection Trust Fund-
Site eligibility under this subsection, or any other provision of this section,
shall not constitute an entitlement to preapproved advanced cleanup or con-
tinued restoration funding. The applicant shall certify to the department that
the applicant has the prerequisite authority to enter into a preapproved ad-
vanced cleanup contract with the department. This certification shall be sub-
mitted with the application.
34
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Ch. 96-277
LAWS OF FLORIDA
Ch. 96-277
(b) The department shall rank the applications based on the percentage of
cost sharing commitment proposed hv the applicant, with the highest ranking
en to the applicant that proposes the highest percentage of cost sharing. If
i department receives applications that propose identical cost-sharing com-
ments and which exceed the fupds available to commit to all such proposals
"(luring the prepproved advanced cleanup application period, the department
shall proceed to rerarik those applicants. Those applicants submitting identi-
cal cost-sharing proposals which exceed fundihg availability shall be so noti-
fied bv the department and shall be offered the opportunity to raise their
individual cost-share commitments, in a period of time specified in the notice.
At the close of the period, the department shall proceed to rerank the applica-
tions in accordance with this paragraph.
(3)(a) Based on the ranking established under paragraph (2Kb), and the
funding limitations provided in subsection (4). the department shall com-
mence negotiation with such applicants. If the department and the applicant
agree on the course of action, the department may enter into a contract with
the applicant. The department is authorized to negotiate the terms and condi-
tions of the contract.
(b) Preapproved advanced cleanup shall be conducted under the provi-
sions of ss. 376.3071(5)(b) and 376.30711. If the terms of the preapproved
advanced cleanup contract are not fulfilled, the applicant forfeits any right to
future payment for any site rehabilitation work conducted under the contract.
(c) The department's decision not to enter into a preapproved advanced
cleanup contract with the applicant shall not be subject to the provisions of
chapter 120. If the department is not able to complete negotiation of the course
of action and the terms, of the contract within 60 days after commencing
negotiations, the department shall terminate negotiations with that applicant.
(4) The department is authorized to enter into contract for a total of up to
^10 million of preapproved advanced cleanup work in each fiscal year. How-
ever^To laciiitv shall be preapproved for more than $500,000 of cleanup
activity in each fiscal year. For the purposes of this section the fe'rm "lacilitv"
shall include, but not be limited to. multiple site facilities such as airports, port
ilities. and terminal facilities even though such enterprises mav be treated
Beparate facilities for other purposes under this chapter^
(5) Bv December 31. 1998. the department shall submit a report to the
Governor, the President of the Senate, and the Speaker of the House of
Representatives on the progress and level of activity under the provisions of
this section. The report shall include the following information:
(a) A list of sites under a preapproved advanced cleanup contract, to be
identified bv the facility number.
(b) The total number of preapproved advanced cleanup applications sub-
mitted to the department
(c) The priority ranking scores of each participating site.
(d) The total amount of contract work authorized and conducted for each
site and the percentage and amount of cost share.
35
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Ch. 90-277
LAWS OF FLORIDA
Ch. 96-277
(r) Thft total revenues received under the provisions of thi9 section.
(f) The annual costs of administering the provisions of this section..
(e) The recommended annual budget for-the provisions of thia aectinn.
(6) All funds collected bv the department pursuant to this section shnll bp.
deposited into the Inland Protection Trust Fund to be used as provided in this
section.
(7) This section is repealed, effective October 1.1999. and shall be subject
to legislative review prior to that date.
Section 8. Subsections (1) and (2) of section 376.3072, Florida Statutes, are
amended, subsections (3), and (4) of 9aid section are renumbered as subsec-
tions (4), and (5), respectively, and new subsection (3) is added to said section,
to read:
376.3072 _ Florida Petroleum Liability and Restoration Insurance Pro-
gram.— ~~ — ¦ ——
(1) There is hereby created the Florida Petroleum Liability and Restora-
tion Insurance Program to be administered by the department. The program
shall provide restoration funding assistance to facilities regulated by and-in
complianca-with the department's petroleum storage tank rules. To imple-
ment the program, the department may contract with an insurance company,
a reinsurance company, or other insurance consultant to issue third-party
liability policies that meet the federal financial responsibility requirements of
10 C.F.R. s. 280.97, subpart H.
(2)(a) Any owner or operator of a petroleum storage system may become
an insured in the restoration insurance program at a facility provided:
1. A site at which an incident has occurred shall be eligible for restoration
if the insured is a participant in the third-party liability insurance program
or otherwise meets applicable financial responsibility requirements. After July
1,1993, the insured must also provide the required excess insurance coverage
or self-insurance for restoration to achieve the financial responsibility require-
ments of 40 C.F.R. s. 280.97, subpart H, not covered by paragraph (e).
2. A site which had a discharge reported prior to January 1, 1989, for which
notice was given pursuant to s. 376.3071(9) or (12), and which is ineligible for
the third-party liability insurance program solely due to that discharge shall
be eligible for participation in the restoration program for any incident occur-
ring on or after January 1, 1989, in accordance with subsection (3) provided
the-facility is in-compliance-with tho ruloo.o^-the <1 epaFtmant-per-taining-to
submite-a-cotapleted—affidavi^and-aH-pertinent applKGa&on-for-ms-foi^-the
program. Restoration funding for an eligible contaminated site will be pro-
vided without participation in the third-party liability insurance program
until the site is restored as required by the department or until the department
determines that the site does not require restoration.
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3. Notwithstanding paragraph (b). a site where an Application is filed with
a diechargo is roporied-to the department prior to January 1, 1995, where the
owner is a small business under s. 288.703(1), a state community college with
ess than 2,500 FTE, a religious institution as defined by s. 212.08(7)(o)2.a.,
charitable institution as defined by s. 212.08(7)(o)2.b., or a county or munici-
pality with a population of less than 50,000, shall be eligible for up to $300,000
of eligible restoration costs, less a deductible of $10,000 for small businesses,
eligible community colleges, and religious or charitable institutions, and
$30,000 for eligible counties and municipalities, provided that:
a. Except as provided in subparagraph e.. the facility was in compliance
with department rules at the time of the discharge.
b. The owner or operator has, upon discovery of a discharge, promptly
reported the discharge to the department,;and drained and removed the sys-
tem from service, if necessary.
c. The owner or operator has not intentionally caused or concealed a dis-
charge or disabled leak detection equipment.
d. The owner or operator proceeds to complete initial remedial action as
defined by department rules.
e. The owner or operator, if required anff if it has not already done so,
applies for third-party liability coverage for the facility within 30 days of
receipt of an eligibility order issued by the department pursuant to this provi-
sion.
However, the department may consider in-kind services from eligible counties
and municipalities in lieu of the $30,000 deductible. The cost of conducting
initial remedial action as defined by department rules shall be an eligible
restoration cost pursuant to this provision.
^.a. Bv January 1.1997. facilities at sites with existing contamination shal
be required to have methods of release detection to be eligible for re^tgrp^ion
insurance coverage for new discharges subject to department rules ter-Secona-
arv containment. Annual storage system testing, in conjunction with inventory
Tontrol. shall be considered to be a method of release detection until the later
December 22. 1998. or 10 years after the date of installation or the last
fpgrade. Other methods of release detection~for storage tanks which meet such
requirement are:
(I) Interstitial monitoring of tank and integral piping secondary contain-
ment systems:
(II) Automatic tank gauging systems: or
(III) A statistical inventory reconciliation system with a tank test every 3
years.
b. For pressurized integral piping systems, the owner or operator must use:
(I) An automatic in-line leak detector with flow restriction meeting the
requirements of department rules used in conjunction with an annual tight-
ness or pressure test: or
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(II) An automatic in-line leak detector with electronic flow shut-off mppt-
ing the requirements of department rules.
c. For suction integral piping systems, the owner ur operator must hbb:
(I) A single check valve installed directly below the suction pump, provided
there are no other valves between the dispenser and the tank: or
(II) An annual tightness test or other approved test.
d. Owners of facilities with existing contamination that install internal
release detection systems in accordance with s. 376.3072(2)(a)4.a.. shall perma-
nently close their external groundwater and vapor monitoring wells in accord-
ance with department rules bv December 31. 1998. Upon installation of the
internal release detection system, these wells shallbe secured and taken out
of service until permanent closure.
e. Facilities with vapor levels of contamination meeting the requirements
of or below the concentrations specified in the performance standards for
release detection methods specified in department rules mav continue to use
vapor monitoring wells for release detection.
f. The department mav approve other methods of release detection for
storage tanks and integral piping which have at least the same capability to
detect a new release as the methods specified in this subparagraph.
(b)l. To be eligible to be certified as an insured facility, for discharges
reported after January 1, 1989, the owner or operator shall file an affidavit
upon enrollment in the program and-must file an affidavit each year upon4he
owner or operator has read and is familiar with this chapter and the rules
relating to petroleum storage systems and petroleum contamination site
cleanup adopted pursuant to ss. 376.303 and 376.3071 and that the facility is
in compliance with this chapter and applicable rules adopted pursuant to s.
376.303. Thereafter, the facility's annual ins~p"ection reportlKall serve as evi-~
dence of the facility's compliance with department rules. The facility's certifi-
cate as an insured facility mav be revoked only if the insured fails to correct
a violation identified in an inspection report before a discharge occurs. The
facility's certification mav be restored when the violation is corrected as veri-
fied bv a reinspection.
2. Except as provided in paragraph (a), to be eligible to be certified as an
insured facility, the applicant insuf-ed must demonstrate to the department
that at-tho time tho diaehaEge-waB-reportedr the applicant has msurod-ha4
financial responsibility for third-party claims and excess coverage, as required
by this section and 40 C.F.R. s. 280.97(h) and that the applicant maintains
sucl) insurance during the applicant's participation as an insured facility.
3. To_be-el igible,-fche-faGility-6hall-be-in-Gompiiance-wifch-departmervfc-r-uIes
as-demonst,F»ted-at-the-mo6t-r6eent-inspeoUon-eonduGte. The affidavit shall state that the
38
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Tient Should a reinspection of the facility be necessary to demonstrate com-
iance, the insured shall pay an inspection fee not to exceed $500 per facility-
be deposited in the Inland Protection Trust Fund, in addition to any
-¦oncompliance foe which may be assessed.
4. Upon report of a flischarge. the department shall issue an order stating
that the site is eligible for restoration coverage unless if tho criterift-listedjn
subparagraphs l.-3.-nro-raet.
6* the insured has intentionally caused or concealed a discharge or disabled
leak detection equipment, has misrepresented facta in the affidavit filed pur-
suant to subparagraph 1.. or can not demonstrate that he or she has obtained
and maintained the financial responsibility for third-partv claims and excess
coverage aa required in subparagraph 2.
Nothing contained herein shall prevent the department from assessing a-nen-
compliance fee pursuant to s. 376.3074 or civil penalties for noncompliance as
provided herein.
(c) A lender financial institution that has loaned money to a participant in
the Florida Petroleum Liability and Restoration Insurance Program and has
held a mortgage lien, security interest, or any lien rights on the site primarily
to protect the lender's right to convert or liquidate the collateral in satisfaction
of the debt secured, or a financial institution which serves as a trustee for an
-insured in the program for the purpose of site rehabilitation, shall be eligible
r a state-funded have the right to conduct cleanup of the site, if the lender
recloses the lien or accepts a deed in lieu of foreclosure on that property and
acquires title, and as long as the following has occurred, as applicable a foroclo-
1. The owner or operator or-lender provided the lender financial-institution
with proof that the facility is eligible for the restoration insurance program at
the time of the loan or before the discharge occurredj-and
2. The financial institution or lender completes site rehabilitation and
seeks reimbursement pursuant to s. 376.3071(12) or conducts preapproved site
rehabilitation pursuant to s. 376.30711. as appropriate.
3. The financial institution or lender did not engage in management activi-
ties at the site prior to foreclosure and does not operate the site or otherwise
engage in management activities after foreclosure, except to comply with
environmental statutes or rules or to prevent, abate, or remediate a discharge.
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dischaFge^f-petreleum-produet-at a facility, draHvand-raroova-fForo-fiervicft-the
profit-under-ohaptor 617; or
reeponsible-pereGn-to-GGmplete-eome-or-all-of-khe-taBks-for-the-appliGable-BiteSr
The-plan-must-include-which-taska-and sitoa are roqiiir-ed-to-seek-reiraburse-
meiu
subsection,
(d)te}l. With respect to eligible incidents reported to the department prior
to July 1, 1992, the restoration insurance program shall provide up to $1
million of restoration for each incident and shall have an annual aggregate
limit of $2 million of restoration per facility.
2. For any site at which a discharge is reported on or after July 1, 1992, and
for which restoration coverage is requested, the department shall pay for
restoration in accordance with the following schedule:
a. For discharges reported to the department from July 1,1992, to June 30,
eligible restoration costs, less a $1,000 deductible per incident.
b. For discharges reported to the department from July 1,1993, to Decem-
ber 31, 1993, the department shall reHaabuFser-or-foMlfces-elig^ble-foMtate
million of eligible restoration costs, less a $5,000 deductible per incident.
However, if, prior to the date the discharge is reported and by September 1,
1993, the owner or operator can demonstrate financial responsibility in effect
in accordance with 40 C.F.R. s. 280.97, subpart H, for coverage under sub-
subparagraph c., the deductible will be $500. The $500 deductible shall apply
for a period of one year from the effective date of a policy or other form of
financial responsibility obtained and in effect by September 1, 1993.
c. For discharges reported to the department from January 1, 1994, to
December 31, 1996, the department shall pay reimburse up to $300,000 of
eligible restoration costs, less a deductible of $10,000.
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d. For discharges reported to the department from January 1, 1997, to
December 31, 1998, the department shall pay reimburoo up to $150,000 of
eligible restoration costs, less a deductible of $10,000.
Beginning January 1, 1999, no restoration coverage shall be provided.
f. In addition.^supplementa^deductible shall be added as follows:
(I) A supplemental deductible of $5.000 if the owner or operator fails to
report a suaoectea release within X working day after discovery.
(II) A supplemental deductible of $10.000 if the owner or operator, within
3 days after discovery of an actual new discharge, fails to take steps to test or
empty the storage system and complete such activity within 7 days.
(III) A supplemental deductible of £25.000 if the owner or operator, after
testing or emptying the storage system, fails to proceed within 24 hours there-
after to abate the known source of the discharge or to begin free product
removal relating to an actual new discharge and fails to complete abatement
within 72 hours, although free product recovery mav be ongoing.
(e)(fl The following are not eligible to participate in the Petroleum Liabil-
ity and Restoration Insurance Program:
1. Sites owned or operated by the Federal Government during the time the
facility was in operation.
2. Sites where the owner or operator has denied the department reasonable
site access.
3. Any third-party claims relating to damages caused by discharges discov-
ered prior to January 1, 1989.
4. Any incidents discovered prior to January 1, 1989, are not eligible to
participate in the restoration insurance program. However, this exclusion shall
not be construed to prevent a new incident at the same location from participa-
¦>n in the restoration insurance program if the owner or operator is otherwise
gible. This exclusion shall not affect eligibility for participation in the EDI
(3) Sites that were certified as insured facilities and that were denied
coverage for a discharge under the Petroleum Liability and Restoration Insur-
ance Program mav request a reevaluation under the criteria in subsection (2).
Such request shall be made bv December 31. 1996. If the contamination is
redetermined to be eligible, the deductible and coverage limit in effect at the
time the discharge was reported shall be applicable. The redetermination shnll
not affect the department's authority for assessing supplemental deductibles
or civil penalties. The department shall not assess a supplemental deductible
or civil penalty for alleged failure to report or abate a discharge when the
owner or operator can establish no discharge occurred.
Section 9. Subsections (1) and (4) of section 376.3073, Florida Statutes, arc
amended to read:
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LAWS OF FLORIDA
Ch. 96-277
376.3073 Local programs and state agency programs for control of contami-
nation.—
(1) The department shall, to the greatest extent possible and cost-effective,
contract with local governments to provide for the administration of its de-
partmental responsibilities under ss. 376.305, 376.3071(4)(a)-(e), (h), (D. (n).
376.30711.376.3072. and 376.3077 through locally administered programs. The
department, may also contract with state agencies to carry out the restoration
activities authorized pursuant to ss. 376.3071, 376.3072, aad 376.305. and
376.30711. However, no such contract shall be entered into unless the local
government or state agency is deemed capable of carrying out such responsibil-
ities to the department's satisfaction.
(4) Under no circumstances snail the cleanup criteria employed in locally
administered programs or state agency programs or pursuant to local ordi-
nance be more stringent than the criteria established by the department
pursuant to s. 376.3071(5)(b) or s. 376.30711.
Section 10. Section 376.3075. Florida Statutes, is created to read:
(1) There is hereby created a nonprofit public benefit corporation to be
known as the "Inland Protection Financing Corporation" for the purpose of
financing the rehabilitation of petroleum contamination sites Pursuant to ss.
376.30-376.319 and the payment, purchase, and settlement of reimbursement
obligations of the department pursuant to s. 376.3071(12). existing as of De-
cember 31 1996. Such reimbursement obligations are referred to in this sec-
tion as existing reimbursement obligations. The corporation shall terminate
on July 1. 2011.
(2) The corporation shall be governed bv a board of directors consisting of
the Governor or the Governor's designee, the Comptroller or the Comptroller's
designee, the Treasurer or the Treasurer's designee, the chair of the Florida
Black Business Investment Board, and the Secretary of the Department of
Environmental Protection. The executive director of the State Board of Ad-
ministration shall be the chief executive officer of the corporation and shall
direct and supervise the administrative affairs of the corporation and shall
control, direct, and supervise the operation of the corporation. The corpora-
tion shall also have such other officers as may be determined bv the board of
directors.
(3) The corporation shall have all the powers of a corporate body under the
laws of the state to the extent not inconsistent with or restricted bv the
provisions of this section, including, but not limited to. the power to:
(a) Adopt, amend, and repeal bylaws not inconsistent with this section.
(b) Sue and be sued.
(c) Adopt and use a common seal.
(d) Acquire, purchase, hold, lease, and convey such real and personal prop-
erty as mav be proper or expedient to carry out the purposes of the corporation
and this section, and to sell, lease, or otherwise dispose of such property.
1.3075 Inland Protection Financing
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(e) Elect or appoint and employ such officers. agents, and employees ns the
corporation deems advisable to operate and manage the affairs of the corpora-
fion. which officers, agents, and employees mav ha officers-or-emplovees of the
epartment and the state agencies-represented on the board of directors of the
orporation.
(0 Borrow money and issue notes, bonds, certificates of indebtedness, or
other obligations or evidences of indebtedness necessary to pav the backlog or
to reimburse moneys from the Inland Protection Trust Fund used pursuant
to subsection (6V
(g) Make and execute anv and all contracts, trust agreements, and other
instruments and agreements necessary or convenient to accomplish the pur-
poses of the corporation and this section.
(h) Select, retain, and employ professionals, contractors, or agents, which
may include the Florida State Board of Administration's Division of Bond
Finance, as shall be necessary or convenient to enable or assist the corporation
in carrying out the purposes of the corporation and this section.
(i) Do anv act or thing necessary or convenient to carry out the purposes
of the corporation and this section and the powers provided in this section.
(4) The corporation is authorized to enter into one or more service con-
tracts with the department pursuant to which the corporation shall provide
services to the department in connection with financing the functions and
activities provided for ih ss. 376.30-376.319. The department mav enter into
one or more such service contracts with the corporation and to provide for
payments under such contracts pursuant to s. 376.3071(4)(o). subject to an-
nual appropriation by the Legislature. The proceeds from such service con-
tracts mav be used for the costs and expenses of administration of the corpora-
tion after payments as set forth in subsection (5). Each service contract shall
have a term not to exceed 10 years and shall terminate no later than July 1.
2011. The aggregate amount payable from the Inland Protection Trust Fund
under all such service contracts shall not exceed $65 million in anv state fiscal
year. Amounts annually appropriated and applied to make payments under
uch service contracts shall not include anv funds derived from penalties or
|ther payments received from anv property owner or private party, including
javments received from s. 376.3071(6)(b). In compliance with provisions of s.
287.0641 and other applicable provisions of law, the obligations of the depart-
ment under such service contracts shall not constitute a general obligation of
the state or a pledge of the faith and credit or taxing power of the state nor
shall such obligations.be construed in anv manner as an obligation of the State
Board of Administration or entities for which it invests funds, other than the
department as provided in this section, but shall be payable solely from
amounts available in the Inland Protection Trust Fund, subject to annual
appropriation. In compliance with this subsection and s. 287.0582. the service
contract shall expressly include the following statement: "The State of Flori-
da's performance and obligation to pav under this contract is contingent upon
an annual appropriation bv the Legislature."
(5) The corporation mav issue and incur notes, bonds, certificates of in-
debtedness. or other obligations or evidences of indebtedness payable from
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and secured bv amounts navable to the corporation by the department tinder
¦ a service-contract entered into pursuant to subsection (4) for the purpose of
navine. purchasing, or settling existing reimbursement obligations. The term
of any such note, bond, certificate of indebtedness, or other obligation or
evidence of indebtedness shall not have a financing term that exceeds 6 years,
nor shall the total payments for principal and interest on any such note, bond,
certificate of indebtedness, or other obligation or evidence of indebtedness
exceed~the original amount of approved reimbursement claims to be paid-
purchased or settled bv the corporation bv more than $50 million. The corpo-
ration mav select its financing tenm and issue its obligations through comneti-
tive bidding or negotiated contracts, whichever is most cost-effective. Anv
such indebtedness of the corporation shall not constitute a debt or obligation
of the state or a pledge of the faith and credit or taxirip power of the state, but
shall be payable from and secured bv payments made bv the department
under the service contract pursuant to b. 376.3071(4)(o)-
(6) Upon the issuance of debt obligations bv the corporation pursuant to
subsection (5) for the payment, purchase, or settlement of existing reimburse-
ment obligations, amounts on deposit in the Inland Protection Trust Fund
shall not be available for the payment, purchase, or settlement of existing
reimbursement obligations to the extent proceeds of such debt obligations are
available for the payment of such existing reimbursement obligations. If. after
the initial issuance of debt obligations pursuant to subsection (5). amounts on
deposit in the Inland Protection Trust Fund are used to pay existing reim-
bursement obligations, tho corporation shall reimburse the Inland Protection
Trust Fund for such payments from available proceeds of debt obligations
issued pursuant to subsection (5). Payment, purchase, or settlement bv the
corporation of existing reimbursement obligations otherwise payable pursuant
to b. 376.3071(12) shall satisfy the obligation of the department to make such
payments. Anv such existing reimbursement obligations purchased bv the
corporation shall be satisfied and extinguished upon purchase bv the corpora-
tion.
(7) The corporation shall pav. purchase, or settle existing reimbursement
obligations as determined bv the department. The department shall imple-
ment the repayment priorities and method and amount of payments pursuant
to b. 376.3071(12). However, anv claims for reimbursement pursuant to s.
376.3071(12) that the corporation is unable to pav because of the limitations
contained in subsection (5) shall be paid bv the department from the receipts
of the Inland Protection Trust Fund.
(8) The fulfillment of the purposes of the corporation promotes the health,
safety, and general welfare of the people of the state and serves as essential
governmental functions and a paramount public purpose.
(9) The corporation is exempt from taxation and assessments of any nature
whatsoever upon its income and anv property, assets, or revenues acquired-
received. or used in the furtherance of the purposes provided in this chapter.
The obligations of the corporation incurred pursuant to subsection (5) and the
interest and income thereon and all security agreements, letters of credit,
liouiditv facilities, or other obligations or instruments arising out of. entered
into in connection therewith, or given to secure payment thereof are exempt
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Ch. 96-277
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from all taxation, provided such exemption dop.a not annlv to any tax imposed
by chapter 220 on the interest, income, or profits on debt obligations owned
bv corporations.
(10) The corporation .shall validate obligations to be incurred pursuant to
mbsection (5) and the validity and enforceabilitv::of"anvrse"rvice contracts
Jroviding for payments pledged to the payment thereof bv proceedings under
chapter 75. The validation complaint shall be filed only in the Circuit Court
for Leon County. The notice required to be -published-bv-B; 75.06 shall be
published in Leon County and t.he complaint and order of the Circuit Court
shall be served only on the State Attorney for the Second Judicial Circuit-
Sections 75.04(2) and 75.06(2) shall not apply to a complaint for validation
filed as authorized in this subsection. The validation of at least the first
obligations incurred pursuant to subsection (5) shall be appealed to the Su-
preme Court, to be handled on an expedited basis.
(11) The corporation shall not be deemed to be a special district for pur-
poses of chapter 189 or a unit of local government for purposes of part III of
chapter 218. The provisions of chapters 120 and 215. except the limitation on
interest rates provided bv s. 215.84 which applies to obligations of the corpora-
tion issued pursuant to this section and part I of chapter 287 except ss.
287.0582 and 287.0641 shall not apply to this section, the corporation created
hereby, the service contracts entered into pfttsuant to this section, or to debt
obligations issued bv the corporation as contemplated in this section.
(12) In no event shall any of the benefits or earning of the corporation inure
to tho benefit of any private person.
(13) Upon dissolution of the corporation, title to all property owned bv the
corporation shall revert to the state.
(14) The corporation may contract with the State Board of Administration
to serve as trustee with respect to debt obligations issued bv the corporation
as contemplated bv this section and to hold, administer, and invest proceeds
of such debt obligations and other funds of the corporation and to perform
other services required bv the corporation. The State Board of Administration
jnav perform such service? and mav contract with others to provide all or a part
Jf such services and to recover its and such other costs and expenses thereof.
Section 11. Subsection (3) of section 376.308, Florida Statutes, is amended,
subsection (5) is renumbered as subsection (6) and amended, and a new
subsection (5) is added to said section, to read:
w^~376.3T?8~ Liabilities and defenses of facilities.—^
(3) For purposes of this section, the following adaiuonai defenses shall
apply to sites contaminated with petroleum or petroleum products:
(a) The defendant is a lender fiaaneiaMnotitution serving as a trustee,
personal representative, or other type of fiduciary, provided the defendant did
not otherwise cause or contribute to the discharge;
(b) The defendant is a lender frnaneisl-in&ti-tution which holds indicia of
ownership in the site primarily to protect a security interest, and which has
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not divested the borrower of, or otherwise engaged in, decisionmaking control
over site operations, particularly with respect to the storage; use, or disposal
of petroleum or petroleum products, or whjch otherwise caused or contributed
to the discharge; provided, that the financial institution may direct or compel
the borrower to maintain compliance with-ehvironmentalstatutea'and'rules
and may act to prevent or abate a discharge; or
QThe defendant is a lender financial institution which held a security
interest in the site and has foreclosed or otherwise acted to acquire title
primarily to protect its security interest, and seeks to sell, transfer, or other-
wise divest the assets for subsequent sale at the earliest possible time, taking
all relevant facta and circumstances into account, and has not. nnHf-rtnkp.n
management activities beyond those necessary to protect its financial interest,
to effectuate compliance with environmental statutes and rules, or to prevent
or abate a discharge; however, if the facility is not eligible for cleanup pursuant
to s. 376.305(7), s. 376.3071, or s. 376.3072, any funds expended by the depart-
ment for cleanup of tfhe property shall^constitute a lien on the property against
p. {:p any subsequent saler after the amount o£ the former security interest (including
the cost of collection, management, and sale) is satisfied.
t—tDl-feP'' v-- fLt fcf*
(51 Effective July I. 1996. and operating retroactively to March 29. 1995.
notwithstanding any other provision of law, judgment, consent order, order,
or ordinance, no person who owns or operates a facility or who otherwise could
be responsible for costs as a result of rnntnmiriation eligible for restoration
funding from the Inland Protection Trust Fund shall be subject to administra-
tive or judicial action, brought bv or on behalf of the state or any local
government or any other person, to compel rehabilitation in advance of com-
mitment of restoration funding in accordance with a site's priority ranking
pursuant to s. 376.3071(5)(a) or to pav for the costs of rehabilitation of envi-
ronmental contamination resulting from a discharge of petroleum products.
that is eligible for restoration funding from the Inland Protection Trust Fund.
For purposes of chapter 95. a cause of action to compel rehabilitation of
environmental contamination at a facility resulting from a discharge of petro-
leum products that is eligible for restoration funding, or to compel payment
of costs for environmental contamination resulting from a discharge of petro-
leum products that is eligible for restoration funding, shall not accrue until
restoration funding can be committed to the facility or environmental contam-
ination in accordance with the priority ranking. In the event of a new release.
the facility operator shall be required to abate the source of the discharge. If
free product is present, the operator shall notify the department, which may
dircct the removal of free product where prior approval Of the scope of work
und costs has been granted bv the department. Nothing herein shall preclude
anv person from bringing civil action for damages or personal injury, not to
include the cost of restoration or the compelling of restoration in advance of
the state's commitment of restoration funding in accordance with a site's
priority ranking pursuant to s. 376.3071(5)(a). The Legislature's intent in
establishing the limitations in this subsection is to recognize that on March 29.
1995. the Legislature enacted chapter 95-2. Laws of Florida.
(6)(£) Nothing herein shall be construed to affect cleanup program eligibil-
ity under ss. 376.305(6)(2). 376.3071., 376.3072, 376.3078, and 376.3079.
46
CODING: Words striken arc deletions; words underlined ore additions.
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Ch. 90-277
LAWS OF FLORIDA
Ch. 00-277
Section 12. Subsection (1) of section 376.311, Florida Statutes, is amended
to read:
376.311 Penalties for a discharge.—
(1) The penalty provisions of this section do not apply to anv discharge
_ omptly reported and, where.applicahle. removed bv an operator in Accord-
ance with the rules and .orders of the department when thn hopn
determined eligible for participation in a program described in s^37&305(7),
swTO.3071, o. SV&aWa, si. 376.3076, or s. 376.3079.
Section 13. No employee of the department holding a position in the Senior
Management Service as defined in b. 110.402. Florida Statutes or holding a
position in the Select Exempt Service as defined in s. 110.602. Florida Stat-
utes. shall have or hold anv employment or contractual relationship, including
consulting contracts, with anv entity other than an agency which bids, negoti-
ates. or contracts for anv task or activity related to petroleum storage tanks
regulation for 2 years following vacation of the employee's position. In addi-
tion. no employee of the Bureau of Waste Cleanup shall personally represent
another person' or entity for compensation before the department, regarding
petroleum storage tanks regulation or petroleum contamination site rehabili-
tation. for a period of 2 years following vacation of the employee's position;
however, this prohibition does not apply to persons employed bv the burenu
in maintenance, clerical, secretarial, or similar positions. The provisions of this
section shall not be construed to conflict with part HI of chapter 112. Florid a
Statutes.
Section 14. Paragraph (a) of subsection (1) of section 287.0595, Florida
Statutes, is amended to read:
287.0595 Pollution response action contracts; department rules.—
(1) The Department of Environmental Protection shall establish, through
the promulgation of administrative rules as provided in chapter 120:
(a) Procedures for determining the qualifications of responsible potential
jidders prior to advertisement for and receipt of bids for pollution response
fction contracts, including procedures for the rejection of unqualified bidders.
Response actions are those activities described in s. 376.301(32)(£4) and those
actions carried out pursuant to s. 403.165.
Section 15. Paragraph (a) of subsection (4).of section 316.302, Florida
Statutes, is amended to read:
316.302 Commercial motor vehicles; safety regulations; transporters nnd
shippers of hazardous materials; enforcement.—
(4) Except as provided in this subsection, all commercial motor vehicles
transporting any hazardous material on any read, street, or highway open to
the public, whether engaged in interstate or intrastate commerce, nnd any
person who offers hazardous materials for such transportation, ore subject to
the regulations contained in 49 C.F.R. parts 171, 172, 173, 177, 178, and 180.
47
CODING: Words striken arc deletions; words underlined arc additions.
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Ch. 06-277
LAWS OF FLORIDA
Ch. 96-277
(a) A person who operates a commercial motor vehicle having a declared
gross vehicle weight of les9 than 26,000 pounds transporting, solely within
intrastate commerce, quantities of petroleum products as defined in s.
376.301(26)120} is exempt from the requirements of subsection (1) und from
the requirements of 49 C.F.R. parts 171,172,173,177,178, and 180. However,
such person must comply with 49 C.F.R. part 172, subpart F, 49 C.F.R. parts
392 and 393, and 49 C.F.R. s. 396.9.
Section 16. Section 376.30712. Florida Statutes, as created by chapter 95-2.
Laws of Florida, and section 376.3074. Florida Statutes, as amended by chap-
ter 95-148. Laws of Florida, are hereby repealed.
Section 17. If any provision of this act, or the application thereof to any
person or circumstance is hold invalid, such invalidity shall not affect other
provisions or applications of this act which can be given effect without the
invalid provision or application. To this end, the provisions of this act are
declared to be severable.
Section 18. There is hereby appropriated 2 FTEs and $80.180 in salaries
and benefits and $20.000 in operating capital outlay from the Inland Protec-
tion Trust Fund in the Department of Environmental Protection to imple-
ment the Petroleum CleanupJParticipation Program provisions of this legisln-
tion.
Section 19. This act shall take effect on/^ujy~l, 1996?^)
Approved by the Governor May 29,1996.
Filed in Office Secretary of State May 29, 1996.
-1-8
CODING: Words sUiknr, are deletioriB; words u-.'.rfsrlinnri nre ndjilions.
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
CHAPTER 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
376.011 Pollutant Spill Prevention and Control Act;
short title.
376.021 Legislative intent with respect to pollution of
coastal waters and lands.
376.031 Definitions.
376.041 Pollution of waters and lands of the state pro-
hibited.
376.051 Powers and duties of the Department of Nat-
ural Resources.
376.06 Operation of terminal facility without required
registration prohibited; penalty.
376.065 Operation of terminal facility without spill pre-
vention and response certificate prohib-
ited; penalty.
376.07 Regulatory powers of department.
376.0705 Development of training programs and edu-
cational materials.
376.071 Spill contingency plan.
376.09 Removal of prohibited discharges.
376.10 Personnel and equipment.
376.11 Florida Coastal Protection Trust Fund.
376.12 Liabilities and defenses of terminal facilities
and vessels.
376.121 Liability for damages to natural resources.
376.13 Emergency proclamation; Governor's pow-
ers.
376.14 Terminal facilities and vessels; financial
responsibility.
376.15 Derelict vessels; removal from public waters.
376.16 Enforcement and penalties.
376.163 Pollutant Spill Technical Advisory Council.
376.165 •Hold-harmless" agreements prohibited.
376.17 Reports to the Legislature.
376.185 Budget approval.
376.19 County and municipal ordinances; powers
limited.
376.20 Limitation on application.
376.205 Individual cause of action for damages under
ss. 376.011-376.21.
376.21 Construction of ss. 376.011-376.21.
376.22 Port Trust Fund; creation; purposes.
376.30 Legislative intent with respect to pollution of
surface and ground waters.
376.301 Definitions of terms used in ss. 376.30-
376.319.
376.302 Discharge of pollutants prohibited.
376.303 Powers'and duties of the Department of
Environmental Regulation.
376.304 Review and analysis of disposal materials or
byproducts; disposal at designated local
government solid waste disposal facilities.
376.305 Removal of prohibited discharges.
376.307 Water Quality Assurance Trust Fund.
376.3071 Inland Protection Trust Fund; creation; pur-
poses; funding.
376.3072 Florida Petroleum Liability Insurance and
Restoration Program.
376.3073 Local programs and state agency programs
for control of contamination.
376.3074
376.3077
376.308
376.309
376.311
376.313
376.315
376.317
376.319
376.320
376.321
376.322
376.323
376.324
376.325
376.326
376.40
376.60
Noncompliance fees.
Unlawful to deposit motor fuel in tank
required to be registered, without proof of
registration display.
Liabilities and defenses of facilities.
Facilities, financial responsibility.
Penalties for a discharge.
Nonexclusiveness of remedies and individ-
ual cause of action for damages under ss.
376.30-376.319.
Construction of ss. 376.30-376.319.
Superseded laws; state preemption.
Response action contractors; indemnifica-
tion.
Applicability.
Definitions.
Powers and duties of the department.
Registration.
Containment and integrity plan.
Alternative to containment and integrity plan
requirements.
Application of s. 376.317.
Petroleum Exploration and Production Bond
Trust Fund; creation; purposes; funding.
Asbestos removal program inspection and
notification fee.
376.011 Pollutant Spill Prevention and Control Act;
short title.—Sections 376.011-376.17, 376.19-376.21
shall be known as the "Pollutant Spill Prevention and
Control Act."
Hlftory.—i. 1. ch. 70-244; 1.1, ch. 74-336: ». 79. ch. 83-310.
376.021 Legislative intent with respect to pollution
of coastal waters and lands.—
(1) The Legislature finds and declares that the high-
est and best use of the seacoast of the state is as a
source of public and private recreation.
(2) The Legislature further finds and declares that
the preservation of this use is a matter of the highest
urgency and priority, and that such use can only be
served effectively by maintaining the coastal waters,
estuaries, tidal flats, beaches, and public lands adjoin-
ing the seacoast in as close to a pristine condition as
possible, taking into account multiple use accommoda-
tions necessary to provide the broadest possible promo-
tion of public and private interests.
(3) The Legislature further finds and declares that:
(a) The transfer of pollutants between vessels,
between onshore facilities and vessels, between off-
shore facilities and vessels, and between terminal facili-
ties within the jurisdiction of the state and state waters
is a hazardous undertaking;
(b) Spills, discharges, and escapes of pollutants
occurring as a result of procedures involved in the trans-
fer, storage, and transportation of such products pose
threats of great danger and damage to the environment
of the state, to owners and users ot shore front property,
to public and private recreation, to citizens of the state
1
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
and other interests deriving livelihood from marine-
related activities, and to the beauty of the Florida ooast;
(c) Such hazards have frequently occurred in the
past, are occurring now, and present future threats 6T
potentially catastrophic proportions, all of which are
expressly declared to be inimical to the paramount inter-
ests of the state as herein set forth; and
(d) Such state interests outweigh any economic bur-
dens imposed by the Legislature upon those engaged
in transferring pollutants and related activities.
(4) The Legislature intends by the enactment of ss.
376.011-376.21 to exercise the police power of the state
by conferring upon the Department of Natural
Resources power to:
(a) Deal with the hazards and threats of danger and
damage posed by such transfers and related activities;
(b) Require the prompt containment and removal of
pollution occasioned thereby; and
(c) Establish a fund to provide for the inspection and
supervision of such activities and guarantee the prompt
payment of reasonable damage claims resulting there-
from.
(5) The Legislature further finds and declares that
the preservation of the public uses referred to herein is
of grave public interest and concern to the state in pro-
moting its general welfare, preventing diseases, promot-
ing health, and providing for the public safety and that
the state's interest in such preservation outweighs any
burdens of liability imposed by the Legislature upon
those engaged in transferring pollutants and related
activities.
(6) The Legislature further declares that it is the
intent of ss. 376.011 -376.21 to support and complement
applicable provisions of the Federal Water Pollution Con-
trol Act, as amended, specifically those provisions relat-
ing to the national contingency plan for removal of pollu-
tants.
History.—• 2, ch. 70-244; s. 2, ch. 74-336.
376.031 Definitions.—When used in ss. 376.011-
376.21, unless the context clearly requires otherwise,
the term:
(1) "Barrel" means 42 U.S. gallons at 60 degrees Fah-
renheit.
(2) "Board" means the board of arbitration.
(3) "Damages" means the documented extent of any
destruction to or loss of any real or personal property,
or the documented extent of any destruction of the envi-
ronment and natural resources, including all living things
except human beings, as the direct result of the dis-
charge of a pollutant.
(4) "Department" means the Department of Natural
Resources.
(5) "Director" means the executive director of the
Department of Natural Resources.
(6) "Discharge" includes, but is not limited to, any
spilling, leaking, seeping, pouring, emitting, emptying,
or dumping which occurs within the territorial limits of
the state or outside the territorial limits of the state and
affects lands and waters within the territorial limits of the
state.
(7) "Discharge cleanup organization" means any
group, incorporated or unincorporated, of owners or
opfefrators of waterfront terminal facilities in any port or
hfcPbor of the state, and any other person who may elect
to join, Orgahized for the purpose of containing and
cleaning up discharges of pollutants through coopera-
tive efforte fiftd sharfed equipment and facilities. For the
purposes of ss. 376.011-376.21, any third-party
deenup cbntractor or any local government shall be rec-
ognized as a discharge cleanup organization, provided
euch contractor or local government is properly certified
by the department.
(8) 'Fund* means the Florida Coastal Protection
Trust Fund.
(9) "Other measurements' means measurements
set by the department for products transferred at termi-
nals which are other than fluid or which are not com-
monly measured by the barrel.
(10) "Owner" means any person owning a terminal
facility; "operator" means any person operating a termi-
nal facility, whether by lease, contract, or other form of
agreement.
(11) "Person" means any individual, partner, joint ven-
ture, corporation; any group of the foregoing, organized
or united for a business purpose; or any governmental
entity.
(12) "Person in charge' means the person on the
scene who is in direct, responsible charge of a terminal
facility or vessel from which pollutants are discharged,
when the discharge occurs.
(13) "Pollutants' includes oil of any kind and in any
form, gasoline, pesticides, ammonia, chlorine, and deriv-
atives thereof, excluding liquefied petroleum gas.
(14) "Pollution" means the presence in the outdoor
atmosphere or waters of the state of any one or more
substances or pollutants in quantities which are or may
be potentially harmful or injurious to human health or
welfare, animal or plant life, or property or which may
unreasonably interfere with the enjoyment of life or prop-
erty, including outdoor recreation.
(15) "Registrant" is a terminal facility required to pos-
sess a valid registration certificate to operate as a termi-
nal facility.
(16) Technical feasibility" or technically feasible*
means that given available technology, a restoration
project can be successfully completed.
(17) "Terminal facility" means any waterfront or off-
shore facility of any kind, other than vessels not owned
or operated by such facility, and directly associated
waterfront or offshore appurtenances including pipe-
lines located on land, including submerged lands, or on
or under the surface of any kind of water, which facility
and related appurtenances are used or capable of being
used for the purpose of drilling for, pumping, storing,
handling, transferring, processing, or refining pollutants,
including, but not limited to, any such facility and related
appurtenances owned or operated by a public utility or
a governmental or quasi-governmental body. A vessel
sheril be considered a terminal facility only in the event
of a ship-to-ship transfer of pollutants, and only that
vessel going to or coming from the place of transfer and
the terminal facility. For the purposes of ss. 376.011-
376.21, the term terminal facility" shall not be construed
to include waterfront facilities owned and operated by
governmental entities acting as agents of public
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
convenience for operators engaged in the drilling for or
pumping, storing, handling, transferring, processing, or
refining of pollutants; however, each operator engaged
in the drilling for or pumping, storing, handling, transfer-
ring, processing, or refining of pollutants through a
waterfront facility owned and operated by such a gov-
ernmental entity shall be construed as a terminal facility.
(18) Transfer" or transferred" includes onloading or
offloading between terminal facility and vessel, vessel
and vessel, or terminal facility and terminal facility.
(19) "Vessel" includes every description of watercraft
or other contrivance used, or capable of being used, as
a means of transportation on water, whether self-
propelled or otherwise, and includes barges and tugs.
Htatery.—«. 3. eh. 70-244: ». i.ch. 71-243: s. 3. eh. 74-336: ». 1. ch. 80-362: s.
80. eh. 83-310; a. 37. ch. 8&-81. ». 10. ch. 90-54.
376.041 Pollution of waters and lands of the state
prohibited.—The discharge of pollutants into or upon
any coastal waters, estuaries, tidal flats, beaches, and
lands adjoining the seacoast of the state in the manner
defined by ss. 376.011-376.21 is prohibited.
Wttory.—a. 4. ch. 70-244: •. 4. ch. 74-336.
376.051 Powers and duties of the Department of
Natural Resources.—
(1) The powers and duties conferred by ss.
376.011-376.21 shall be exercised by the Department of
Natural Resources and shall be deemed to be an essen-
tial governmental function in the exercise of the police
power of the state. The Department of Environmental
Regulation is directed to cooperate with the Department
of Natural Resources and to offer consultative services,
enforcement, prosecution, and technical advice to the
department. The department may call upon any other
state agency for consultative services and technical
advice and the agencies are directed to cooperate in
said request.
(2) The powers and duties of the department under
ss. 376.011 -376.21 shall extend to the boundaries of the
state described in s. 1, Art. II of the State Constitution.
(3) Registration certificates and spill prevention and
response certificates required under ss. 376.011-376.21
shall be issued from the department subject to such
terms and conditions as are set forth in ss. 376.011—
376.21 and as set forth in rules promulgated by the
department as authorized herein.
(4) Whenever it becomes necessary for the state to
protect the public interest under ss. 376.011—376.21, it
shall be the duty of the department to keep an accurate
record of costs and expenses incurred and thereafter
diligently to pursue the recovery of any sums so incurred
from the person responsible or from the Government of
the United States under any applicable federal act.
(5) The department may bring an action on behalf of
the state to enforce the liabilities imposed by s. 376.12.
The Department of Legal Affairs shall represent the
department in any such proceeding.
(6) Within 120 days of July 1, 1983, the department
shall adopt rules providing for the coordination of the
respective duties of the Department of Environmental
Regulation and the Department of Natural Resources
with respect to the implementation of ss. 376.011 —
376.21. Such rules shall specifically establish proce-
dures that determine which of the two agencies should
respond in cases of specific types of pollutant spill inci-
dents, and such rules shall establish minimum criteria
for response times. The rules shall also specify criteria
and procedures for the expenditures of Florida Coastal
Protection Trust Fund moneys for pollution incidents
that require action bv the Department of Environmental
Regulation.
MlWy—t. 5. ch. 70-244;«. 2, ch. 71-137; §. 5, ch. 74-336; «. 62. ch. 79-65; (.
61. eh. 83-310; ». 11, eh. 90-64.
376.06 Operation of terminal facility without
required registration prohibited; penalty.—
(1) No person shall operate or cause to be operated
a terminal facility as defined in s. 376.031, except bulk
product facilities and marine fueling facilities, as defined
in s. 376.301, without a registration certificate issued by
the department. Any person who violates this section or
the terms and requirements of such certification com-
mits a noncriminal infraction. The civil penalty for each
infraction is $500. Any person charged by the depart-
ment with a noncriminal infraction under this section
may:
(a) Pay the civil penalty, either by mail or in person,
within 10 days of the date of receiving the citation; or
(b) Elect to appear for a hearing before the county
court in the county where the terminal facility is located.
The date, time, and location of the hearing shall be indi-
cated on the citation. If the court determines that an
infraction has been proven beyond a reasonable doubt,
the court may impose the civil penalty prescribed in this
subsection and may also impose court costs and other
applicable charges.
(2) Registration certificates shall be issued on an
annual basis and shall expire on December 31 annually,
subject to such terms and conditions as the department
may determine are necessary to carry out the purposes
of ss. 376.011-376.21.
(3) As a condition precedent to the issuance or
renewal of a registration certificate, the department shall
require satisfactory evidence that the applicant has
implemented, or is in the process of implementing, state
and federal plans and regulations for prevention, control,
and abatement of pollution when a discharge occurs.
(4) Registration certificates issued to any terminal
facility shall include vessels used to transport pollutants
between the facility and vessels within state waters.
(5) The department shall require, in connection with
the issuance of a terminal facility registration certificate,
the payment of a reasonable fee for processing applica-
tions for registration certificates. This fee shall be in addi-
tion to the excise tax imposed by s. 206.9935(1). The fee
shall be reasonably related to the administrative costs
of verifying data submitted pursuant to obtaining the
certificates and reasonable inspections; however, the
fee shall not exceed $1,000 per terminal facility per year.
(6) Every owner or operator of a terminal facility sub-
ject to tho provisions of this section shall obtain a regis-
tration certificate. The department shall issue a registra-
tion certificate upon the showing that the registrant can
provide all required equipment to prevent, contain, and
remove discharges of pollutants.
3
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
(7) No person shall operate or cause to be operated
any terminal facility subject to the provisions of this sec-
tion without a terminal facility registration certificate
issued by the department. No registration certificate
shall be valid for more than 1 year unless revalidated by
the department. Each applicant for a terminal facility
registration certificate shall pay the registration certifi-
cate application fee and shall submit information, in a
form satisfactory to the department, describing the fol-
lowing:
(a) The barrel or other measurement capacity of the
terminal facility.
(b) All prevention, containment, and removal equip-
ment, including, but not limited to, vehicles, vessels,
pumps, skimmers, booms, chemicals, and communica-
tion devices to which the facility has access, whether
through direct ownership or by contract or membership
in an approved discharge cleanup organization.
(c) The terms of agreement and operation plan of
any discharge cleanup organization to which the owner
or operator of the terminal facility belongs.
(8) Upon showing of satisfactory containment and
cleanup capability under this section, and upon pay-
ment of the registration certificate application fee
required by the department under this section, the appli-
cant shall be issued a registration certificate covering
the terminal facility and related appurtenances, includ-
ing vessels as defined in s. 376.031.
Htttery.—* 6. etv 70-244; 1.1, eh. 70-439-. t. 6. ch. 74-336; >. 7. ch. 06-159; •
12, oh. SO-54.
376.065 Operation of terminal facility without spill
prevention and response certificate prohibited; pen-
alty.—
(1) Every owner or operator of a terminal facility shall
obtain a spill prevention and response certificate issued
by the department. No certificate shall be valid for more
than 1 year unless renewed by the department, and cer-
tificates shall expire on December 31 annually, subject
to such terms and conditions as the department may
determine are necessary to carry out the purposes of ss.
376.011-376.21.
(2) Each applicant for a spill prevention and
response certificate shall submit information, in a form
satisfactory to the department, describing the following:
(a) The barrel or other measurement capacity of the
terminal facility and the length of the largest vessel
docking at or providing service from the terminal facility.
(b) All prevention, containment, and removal equip-
ment, including, but not limited to, vehicles, vessels,
pumps, skimmers, booms, chemicals, and communica-
tion devices to which the facility has access, whether
through direct ownership or by contract or membership
in an approved discharge cleanup organization.
(c) The terms of agreement and the operation plan
of any discharge cleanup organization to which the
owner or operator of the terminal facility belongs.
(3) No person shall operate or cause to be operated
a terminal facility without access to minimum contain-
ment equipment measuring five times the length of the
largest vessel docking at or the largest vessel providing
service from the terminal facility, whichever is larger. The
containment equipment shall be available to begin
deployment on the water within 1 hour after discovery
of a Spill. Within a reasonable time period, additional
cleanup equipment shall be available, either through
direct dftnerahip or by contract or membership in an
approved cleanup organization, to reasonably clean up
10,000 gallons of pollutants, unless the terminal facility
does not store or service vessels having the capacity to
carry that quantity as fuel or cargo. Cleanup or contain-
ment equipment purchased with state funds shall not
count as required equipment under this subsection. The
requirements of this subsection shall not apply to termi-
nal facilities which store only motor fuel or service only
motor fuel to vessels. The requirements of this subsec-
tion shall not apply until January 1,1992, to land-based
terminal facilities with a storage capacity less than
30,000 gallons which store special fuel or service special
fuel to vessels. For purposes of this subsection, "motor
fuel' means gasoline, gasohol, and other mixtures of
gasoline. For purposes of this subsection, "special fuer
means diesel fuel, alcohol, kerosene, or any light fuel, or
combination thereof, other than motor fuel. Special fuel
does not include any heavy fuels or oils, such as crude
oil, American Society for Testing Materials (ASTM)
grades 5 and 6 residual oils, intermediate fuel oils (IFO)
with a viscosity of 30 and higher, or bunker C. The
exemptions provided by this subsection do not elimi-
nate any responsibilities arising from the discharge of a
pollutant and for conducting remedial action as required
by this chapter or chapter 403.
(4) Upon a showing of satisfactory containment and
cleanup capability required by the department under
this section, the applicant shall be issued a spill preven-
tion and response certificate covering the terminal facil-
ity and related appurtenances, including vessels as
defined in s. 376.031.
(5) Any person who violates this section or the terms
and requirements of 6uch certification commits a non-
criminal infraction. The civil penalty for each infraction is
$500. Any person charged by the department with a
noncriminal infraction under this subsection may:
(a) Pay the civil penalty, either by mail or in person,
within 10 days of the date of receiving the citation; or
(b) Elect to appear for a hearing before the county
court in the county where the terminal facility is located.
The date, time, and location of the hearing shall be indi-
cated on the citation. If the court determines that an
infraction has been proven beyond a reasonable doubt,
the court may impose the civil penalty prescribed in this
subsection and may also impose court costs and other
applicable charges.
Hlftoty.—«. 13. oh. 90-54.
376.07 Regulatory powers of department.—The
department shall from time to time adopt, amend,
repeal, end enforce reasonable rules insofar as they
relate to discharges of pollutants into the waters of this
state or onto the coasts of this state.
(1) The rules shall be adopted in accordance with
the Administrative Procedure Act, chapter 120.
(2) The department shall adopt rules including, but
not limited to, the following matters:
(a) Operation and inspection requirements for spill
prevention, abatement, end cleanup capabilities of ter-
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
minal facilities, vessels, and other matters relating to cer-
tification under ss. 376.011-376.21. The department
shall not require vessels to maintain spill prevention
gear, holding tanks of any kind, and containment gear
in excess of federal requirements. However, a terminal
facility transferring heavy oil to or from a vessel with a
heavy oil storage capacity greater than 10,000 gallons
shall be required to adequately boom or seal off the area
between the vessels, or the area between the vessel
and the dock, bulkhead, or land, during a transfer or
bunkering operation, to minimize the escape of such pol-
lutants from the containment area. As used in this para-
graph, "adequate booming" means booming with proper
containment equipment which is employed and located
for the purpose of preventing, for the most likely spill, as
much of the pollutant as possible from escaping out of
the containment area. The owner or operator of the ter-
minal facility involved in the transfer of such pollutant to
or from a vessel which is not adequately boomed com-
mits a noncriminal infraction, shall be cited by the
department, and shall appear before the county court
for the county in which the violation occurred, or the
county court closest to the location at which the violation
occurred. The civil penalty assessed by the court for
such an infraction may be up to $5,000 depending on
the severity of the infraction. Failure to deploy any boom
equipment during such a transfer or bunkering opera-
tion shall result in a civil penalty of $5,000.
(b) Procedures and methods of reporting dis-
charges and other occurrences prohibited by ss.
376.011-376.21.
(c) Procedures, methods, means, and equipment to
be used by persons subject to regulation by ss.
376.011 -376.21 in the removal of pollutants.
(d) Development and implementation of criteria and
plans to meet pollution occurrences of various degrees
and kinds.
(e) Creation by contract or administrative action of
a state response team which shall be responsible for
creating and maintaining a contingency plan of
response, organization, and equipment for handling
emergency cleanup operations and wildlife rescue and
rehabilitation operations. The state plans shall include
detailed emergency operating procedures for the state
as a whole, and the team shall from time to time conduct
practice alerts. These plans shall be filed with the Gover-
nor and all Coast Guard stations in the state and Coast
Guard captains of the port having responsibility for
enforcement of federal pollution laws within the state, on
or before January 1, 1975. The contingency plan shall
include all necessary information for the total contain-
ment and cleanup of pollution, including, but not limited
to, an inventory of equipment and its location, a table of
organization with the names, addresses, and telephone
numbers of all persons responsible for implementing
every phase of the plan, including a plan for wildlife res-
cue and rehabilitation operations, a list of available
sources of supplies necessary for cleanup, and a desig-
nation of priority zones to determine the sequence and
methods of cleanup. The state response team shall act
independently of agencies of the Federal Government
but is directed to cooperate with any federal cleanup
operation.
(f) Requirements for minimum weather and sea con-
ditions for permitting a vessel to enter port and for the
6afety and operation of vessels, barges, tugs, motor
vehicles, motorized equipment, and other equipment
relating to the use and operation of terminals, facilities,
and refineries, the approach and departure from termi-
nals, facilities, and refineries, and requirements that con-
tainment gear approved by the department be on hand
and maintained by terminal facilities and refineries with
adequate personnel trained in its use.
(g) Requirements that, prior to being granted entry
into any port in this state, the master of a vessel shall
report:
1. Any discharges of pollutants the vessel has had
since leaving the last port.
2. Any mechanical problem on the vessel which
creates the possibility of a discharge.
13. Any denial of entry into any port during the cur-
rent cruise of the vessel.
Any person who shall make or cause to be made any
false statement in response to requirements of any pro-
visions of ss. 376.011-376.21 with a fraudulent intent
commits a felony of the second degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084, as
required in 2s. 837.012.
(h) Requirements that any registrant causing or per-
mitting the discharge of a pollutant in violation of the pro-
visions of ss. 376.011-376.21, and at other reasonable
times, be subject to a complete and thorough inspec-
tion. If the department determines there are unsatisfac-
tory preventive measures or containment and cleanup
capabilities, it shall, a reasonable time after notice and
hearing in compliance with chapter 120, suspend the
registration until such time as there is compliance with
the department requirements.
(i) Such other rules as the exigencies of any condi-
tion may require or as may reasonably be necessary to
carry out the intent of ss. 376.011-376.21.
(3) After July 31,1990, no lobster trap or traps to be
deposited into waters of the state shall be impregnated
with a petroleum product that may be released from
such trap or traps. After July 31, 1995, no person shall
deposit into the waters of the state any lobster trap or
traps that have been impregnated with a petroleum
product that may be released from such trap or traps
into the waters of the state.
Hlttory.—». 7. eh. 70-244; •. 7, ch. 74-336; •. 1, eh. 77-174; ». 14, ch. 90-54.
'Note.—As amended by 6.14, ch. 90-64. An extraneous sentence fragment imme-
diately foflowing s. 376.07<2)(g)3. which appear* to have been inserted as a resutt
of clerical error has been deleted by the editors.
•Note.—Section 637.012 provides that (he crime of perjury is a misdemeanor of
the first degree.
376.0705 Development of training programs end
educational materials.—The Department of Natural
Resources shall encourage the development of training
programs for personnel needed for pollutant spill pre-
vention and cleanup activities. The department shall
work with accredited community colleges, vocational
technical centers, state universities, and private institu-
tions in developing educational materials, courses of
study, and other such information to be made available
for persons seeking to be trained for pollutant spill pre-
vention and cleanup activities.
HI»tory.—a. 29. eh. 90-54.
5
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
376.071 Spill contingency plan.—After December
31,1990, any vessel operating in state waters with a stor-
age capacity to carry 10,000 gallons or more of pollu-
tants as fuel and cargo shall maintain an adequate writ-
ten ship-specific spill prevention and control contin-
gency plan. Any such vessel shall have on board a 'spill
officer,' designated by the contingency plan, who is
responsible for training crew members to carry out spill
response efforts required in the contingency plan and
coordinating all orv-board response efforts in case of a
spill. An adequate plan shall include provisions for on-
board response, including notification, verification, pollu-
tant incident assessment, vessel stabilization, dis-
charge mitigation, and on-board discharge contain-
ment, in accordance with this chapter, department
rules, and the Florida Coastal Pollutant Spill Contin-
gency Plan. A plan in compliance with the federal
requirement for a ship-specific spill contingency plan
shall satisfy the requirements for an adequate ship-
specific spill contingency plan required by this section.
On or after January 1,1991, the master of a vessel with
a storage capacity to carry 10,000 gallons or more of pol-
lutants as fuel and cargo, which vessel is operating in
state waters without an adequate contingency plan,
commits a noncriminal infraction. The master shall be
cited by the department and shall appear before the
county court for the county in which the violation
occurred or the county court closest to the location at
which the violation occurred. The civil penalty for such
an infraction shall be up to $5,000. An adequate contin-
gency plan must be submitted to the department prior
to the vessel reentering a Florida port. Failure to submit
the required plan shall result in a civil penalty of $10,000.
Htetofy.—a. 15. ch. 90-54.
376.09 Removal of prohibited discharges.—
(1) Any person discharging pollutants as prohibited
by s. 376.041 shall immediately undertake to contain,
remove, and abate the discharge to the department's
satisfaction. Notwithstanding the above requirement,
the department may undertake the removal of the dis-
charge and may contract and retain agents who shall
operate under the direction of the department.
(2) If the person causing a discharge, or the person
in charge of facilities at which a discharge has taken
place, fails to act, the department may arrange for the
removal of the pollutant, except that if the pollutant was
discharged into or upon the navigable waters of the
United States, the department shall act in accordance
with the national contingency plan for removal of such
pollutant as established pursuant to the Federal Water
Pollution Control Act, as amended, and the costs of
removal incurred by the department shall be paid in
accordance with the applicable provisions of said law.
Federal funds provided under said act shall be used to
the maximum extent possible prior to the expenditure of
state funds.
(3) In the event of discharge the source of which is
unknown, any local discharge cleanup organization
shall, upon the request of the department or its desig-
nee, immediately contain and remove the discharge. No
action taken by any person to contain or remove a dis-
charge, whether such action is taken voluntarily or at the
request of the department or its designee, shall be con-
trtrued as an admission of liability for the discharge.
(4) No person who, voluntarily or at the request of
the department or its designee, renders assistance in
containing or rernoving pollutants shall be liable for any
civil damages to third parties resulting solely from acts
or omissions of such person in rendering such assist-
ance, except for acts or omissions amounting to gross
negligence or willful misconduct.
(5) Notwithstanding the provisions in subsection (4),
any person who is authorized by the department or the
Federal Government or the person alleged to be respon-
sible for the discharge, or by a designee thereof, to ren-
der assistance in containing or removing pollutants shall
not be liable for costs, expenses, and damages, unless
such costs, expenses, and damages are a proximate
result of acts or omissions caused by gross negligence
or willful misconduct of such authorized person.
(6) Nothing in ss. 376.011-376.21 ehall affect the
right of any person to render assistance in containing or
removing any pollutant or any rights which that person
may have against any third party whose sets or omis-
sions in any way have caused or contributed to the dis-
charge of the pollutant.
(7) Any person who renders assistance in containing
or removing any pollutant may be eligible for reimburse-
ment of the cost of containment or removal, provided
prior approval for such reimbursement is granted by the
department. The department may, upon petition and for
good cause shown, waive the prior-approval prerequi-
site.
History.—a. 8, eh. 70-244; 1.1, eh. 70-43$ s. 9, ch. 74-336: a. 2, ch. 60-382: a.
16. ch. 80-54.
376.10 Personnel and equipment.—The depart-
ment shall establish and maintain at such ports within
the state and other places as it shall determine such
employees and equipment, other than equipment fur-
nished by the registrant, as in its judgment may be nec-
essary to cany out the provisions of ss. 376.011 -376.21.
The department may employ and prescribe the duties
of such employees, subject to the rules and regulations
of the Division of Personnel Management Services of the
Department of Administration. The salaries of the
employees and the cost of the equipment shall be paid
from the Florida Coastal Protection Trust Fund estab-
lished by ss. 376.011-376.21. The department shall peri-
odically consult with other departments of the state and
specifically with the Department of Environmental Regu-
lation relative to procedures for the prevention of dis-
charges of pollutants into or affecting the coastal waters
of the state from operations regulated by ss. 376.011-
376.21.
History.—*. 9. ch. 70-244. a. 2. ch. 71-137; a. 1. ch. 73-326: s. 10. oh. 74-336;
a. 63. ch. 79-65: a. 10. ch. 85-68: a. 38, eh. 85-61.
376.11 Florida Coastal Protection Trust Fund.—
(1) The purpose of this section is to provide a mech-
anism to have financial resources immediately available
for prevention of, and cleanup and rehabilitation after, a
pollutant discharge, to prevent further damage by the
pollutant, and to pay for damages. It is the legislative
intent that this section be liberally construed to effect
the purposes set forth, such interpretation being espe-
-------
F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
cially imperative in light of the danger to the environment
and resources.
(2) The Florida Coastal Protection Trust Fund is
established, to be used by the department as a nonlaps-
ing revolving fund for carrying out the purposes of ss.
376.011-376.21. To this fund shall be credited all regis-
tration fees, penalties, judgments, damages recovered
pursuant to s. 376.121, other fees and charges related
to ss. 376.011-376.21, and the excise tax revenues lev-
ied, collected, and credited pursuant to ss. 206.9935(1)
and 206.9945(1 )(a). Charges against the fund shall be in
accordance with this section.
(3) Moneys in the fund that are not needed currently
to meet the obligations of the department in the exercise
of its responsibilities under ss. 376.011-376.21 shall be
deposited with the Treasurer to the credit of the fund
and may be invested in such manner as is provided for
by statute. Interest received on such investment shall be
credited to the fund, except as otherwise specified
herein.
(4) Moneys in the Florida Coastal Protection Trust
Fund shall be disbursed for the following purposes and
no others:
(a) Administrative expenses, personnel expenses,
and equipment costs of the department related to the
enforcement of ss. 376.011-376.21 subject to s.
376.185.
(b) All costs involved in the prevention and abate-
ment of pollution related to the discharge of pollutants
covered by ss. 376.011-376.21 and the abatement of
other potential pollution hazards as authorized herein.
(c) All costs and expenses of the cleanup, restora-
tion, and rehabilitation of waterfowl, wildlife, and all other
natural resources damaged by the discharge of pollu-
tants, including the costs of assessing and recovering
damages to natural resources, whether performed or
authorized by the department or any other state or local
agency.
(d) All provable costs and damages which are the
proximate results of the discharge of pollutants covered
by ss. 376.011-376.21.
(e) Loans to the Inland Protection Trust Fund cre-
ated in s. 376.3071.
(f) The interest earned from investments of the bal-
ance in the Florida Coastal Protection Trust Fund shall
be used first for funding the administrative expenses,
personnel expenses, and equipment costs of the
department relating to the enforcement of ss. 376.011-
376.21. When the balance in the trust fund is greater
than $30 million, the amount from interest earnings in
excess of that needed for funding the department's
costs previously identified shall be transferred by the
department quarterly to the Save Our State Environmen-
tal Education Trust Fund created in the department; pro-
vided that the amount transferred shall not exceed $1.5
million annually.
(g) The funding of a grant program to coastal local
governments, pursuant to s. 376.15{2)(b) and (c), for the
removal of derelict vessels from the public waters of the
state.
(h) The department may spend up to $1 million per
year from the principal of the fund to acquire, design,
train, and maintain emergency cleanup response teams
and equipment located at appropriate ports throughout
the state for the purpose of cleaning oil and other toxic
materials from coastal waters. When the teams and
equipment are not needed for these purposes they may
be used for any other valid purpose of the department.
(i) To provide a temporary transfer of funds in an
amount not to exceed $10 million to the Petroleum
Exploration and Production Bond Trust Fund as set forth
in s. 376.40.
(5) Any interest in lands acquired using moneys in
the Florida Coastal Protection Trust Fund shall be held
by the Trustees of the Internal Improvement Trust Fund,
and such lands shall be acquired pursuant to the proce-
dures set forth in s. 253.025.
(6) The department shall recover to the use of the
fund from the person or persons causing the discharge
or from the Federal Government, jointly and severally, all
sums owed or expended from the fund, pursuant to s.
376.12(6), except that recoveries resulting from damage
due to a discharge of a pollutant or other similar disaster
shall be apportioned between the Florida Coastal Pro-
tection Trust Fund and the General Revenue Fund so as
to repay the full costs to the General Revenue Fund of
any sums disbursed therefrom as a result of such disas-
ter. Requests for reimbursement to the fund for the
above costs, if not paid within 30 days of demand, shall
be turned over to the Department of Legal Affairs for col-
lection.
Mitofy.—«. 11. eh. 70-244;a. 1, eh. 70-439; a. 2. oh. 71-137: a. 11. ch. 74-338:
3. eh. 60-382: *. 4. eh. 81-228:». 82. eh. 83-310:«. 14. eh. 83-339: •. 1. ch. 83-353:
s. 4. ch. 84-338: a. 6. ch. 8S-2S2: ss 3.6.34. ch. 86-159; a. 81. eh. 88-1S3: a. 30.
ch. 87-225: a. 3. ch. 89-175:«. 5. ch. 89-358: «. 17. ch. 80-64:a.18. ch. 90-243:
a. 1,ch. 91-194.
376.12 Liabilities and defenses of terminal facili-
ties end vessel#.—
(1) Because it is the intent of ss. 376.011-376.21 to
provide the means for rapid and effective cleanup and
to minimize cleanup costs and damages, any vessel
transporting pollutants as cargo, or its agents or ser-
vants, who permits or suffers a prohibited discharge or
other polluting condition to take place within state
boundaries shall be liable to the fund for all costs of
cleanup or abatement, up to an amount not to exceed
$10 million or $1,200 per gross ton for any such vessel
of 3,000 gross tons or more, whichever is the greater, for
any such vessel of less than 3,000 gross tons, $2 million
or $1,200 per gross ton, whichever is greater, and for any
other vessel, or its agents or servants, $500,000 or $600
per gross ton, whichever is greater. When the depart-
ment can show that such discharge was the result of
willful or gross negligence or willful misconduct within
the privity or knowledge of the owner or operator or
agent thereof, such owner or operator shall be liable to
the fund for the full amount of such sums expended.
When a discharge of pollutants occurs from a terminal
facility, recovery of costs of abatement and cleanup
shall be limited to an amount not to exceed $25 million,
except that when the department can show that such
discharge was the result of willful or gross negligence
or willful misconduct within the privity or knowledge of
the owner or operator, such owner or operator shall be
liable to the fund for the full amount of such sums
expended. In addition to the foregoing costs cf cleanup,
7
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
owners and operators of vessels and terminal facilities
shall be liable to the fund for all damages in accordance
with the terms of subsections (5), (6), and (8) and ss.
376.11(6) and 376.121. The limits on liability of owners
and operators of vessels and terminal facilities shall not
apply if:
(a) The responsible party fails or refuses to report
the incident as required by law and the responsible
party knows or has reason to know of the incident; or
(b) The responsible party fails or refuses to provide
reasonable cooperation and assistance requested by a
state or federal on-scene coordinator in connection with
cleanup activities. The responsible party must file an
objection with the department if such party deems that
cooperation or assistance requested by a state or fed-
eral on-scene coordinator is unreasonable. Such an
objection must be filed with the department within 48
hours of the request. If such request is determined by
the department to be unreasonable, the responsible
party shall be reimbursed from the fund for expenses
incurred in carrying out such request. The responsible
party may not file an objection to a request based solely
on the premise that the requested activity did not have
satisfactory results.
(2) The owner or operator of any vessel transporting
pollutants as cargo within state waters shall have finan-
cial security equal to or greater than the amount of liabil-
ity for cleanup costs applicable to the vessel pursuant
to this section. Such financial security may be in the
form of a cash deposit held in escrow by the department
in the Florida Coastal Protection Trust Fund, self-
insurance, insurance, guaranty or surety, or any combi-
nation thereof, in a form acceptable to the department.
Documented proof of such financial security shall be
kept aboard the vessel at all times while in state waters
and must be exhibited to any authorized law enforce-
ment officer upon his request. Financial security shall
not be canceled or withdrawn by the vessel owner or
operator while the vessel is transporting pollutants as
cargo within state waters. Any vessel owner or operator
who violates the financial security provisions of this sub-
section commits a noncriminal infraction, shall be cited
for such infraction, and shall be cited to appear before
the county court. The civil penalty for such infraction is
$25,000.
(a) Any vessel, the owner or operator of which has
been cited under the provisions of this subsection, shall
not depart state waters before the person cited either:
1. Pays the civil penalty; or
2. Posts a bond, which shall be equal in amount to
the civil penalty. Such bond shall be forfeited if the per-
son does not appear at the designated time and location
for the court hearing.
(b) If the cited person appears before the county
court, the court shall make a determination as to
whether an infraction has been committed. If the court
determines an infraction has been proven beyond a rea-
sonable doubt, the court shall impose the civil penalty
prescribed in this subsection and may also impose court
costs and other applicable charges. If a person is found
by the court to have committed the infraction, he may
appeal that finding to the circuit court.
(c) The vessel owner or operator shall be responsi-
ble for the vessel and any and all costs and expenses
resulting from the detainment of the vessel prior to pay-
ment of the civil penalty or the posting of the bond.
(d) Any vessel, the owner or operator of which has
been cited under the provisions of this subsection, shall
not depart state waters before the payment of the civil
penalty or the posting of the bond. The department may
authorize the master of the vessel to relocate the vessel
if deemed to be in the best interest of the state. The
master of such vessel which violates this subsection
shall be charged with a felony of the third degree, pun-
ishable as provided in s. 775.082, 8. 775.083, or s.
775.084.
(3) If a vessel transporting pollutants as cargo within
state waters is operating in violation of the financial
security provisions of this section and it suffers a moder-
ate or major discharge, the master of the vessel shall be
charged with a felony of the third degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.
(4) The owner of a pollutant transported as cargo on
any vessel suffering a discharge within state waters shall
be liable for all cleanup costs within the applicable liabil-
ity limits established under this section not paid for by
the owner or operator of the vessel. However, the cargo
owner shall not be liable under this subsection if the ves-
sel owner or operator was in compliance with the finan-
cial security requirements of this section at the time of
the discharge or failed to provide certified notification of
the cancellation or withdrawal of financial security to the
department and the cargo owner at least 72 hours
before the vessel entered state waters.
(5) Any person claiming to have suffered damages
as a result of a discharge of pollutants prohibited by s.
376.041 may, within 180 days after the date of such dis-
charge, apply to the department for reimbursement from
the Florida Coastal Protection Trust Fund. It shall be the
responsibility of the claimant to provide the department
with the required documentation concerning the dam-
ages suffered as a direct result of the discharge. The
department shall prescribe appropriate forms and
details for such application, which application shall
include a provision requiring the applicant to make a
sworn verification of the damage claim to the best of his
knowledge. The director of the department may, upon
petition and for good cause shown, waive the 180-day
limitation for filing damage claims.
(a) The director shall establish the amount of dam-
age award and shall certify the amount of the award and
the name of the claimant to the Treasurer, who shall pay
the award from the fund, subject to the provisions of
'subsection (9). If the claimant agrees with the estab-
lished amount of damage, the settlement shall be bind-
ing upon both parties as to all issues and cannot be fur-
ther attacked, collaterally or by separate action, in the
future. If the total amount of such awards exceeds the
amount available to any claimant or claimants from the
fund, such claimant or claimants shall have the right to
a pro rata share of all funds available in the fund until the
total amount of awards is paid to the claimant or claim-
ants.
(b) If either the claimant or the person determined by
the director to be responsible for the discharge dis-
8
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
agrees with the amount of the damage award, such per-
son may request a hearing pursuant to s. 120.57. If a
hearing is requested, the final order shall be issued by
the Governor and Cabinet as head of the department.
(c) Each person's damage claims arising from a sin-
gle occurrence shall be stated in one application. Dam-
ages omitted from any claim at the time the award is
made shall be deemed waived.
(d) If a person damaged by a discharge of pollutant
chooses to make a claim against the fund and accepts
payment from, or a judgment against, the fund, then the
department shall be subrogated to any cause of action
that the claimant may have had, to the extent of such
payment or judgment, and shall diligently pursue recov-
ery on that cause of action pursuant to Subsection (8)
and s. 376.11(6). In any such action, the amount of dam-
ages shall be proved by the department by submitting
to the court a written report of the amounts paid or owed
from the fund to claimants. Such written report shall be
admissible in evidence, and the amounts paid from or
owed by the fund to the claimants stated therein shall
be irrebuttably presumed to be the amount of damages.
(e) The fund is absolutely liable for all proven dam-
ages against the fund as provided for in this section.
(0 The department shall be a necessary party to all
administrative hearings and court proceedings under
this section.
(6) It shall be the duty of the department in adminis-
tering the fund diligently to pursue the reimbursement
to the fund of any sum expended from the fund for, and
any other state moneys not budgeted for but expended
for, cleanup, abatement, and damages in accordance
with the provisions of ss. 376.011-376.21. In any suit to
enforce claims of the fund or any other claims by the
state under ss. 376.011 -376.21, it shall not be necessary
for the department to plead or prove negligence in any
form or manner. The department need only plead and
prove that the prohibited discharge or other polluting
condition occurred. The only defenses of a person
alleged to be responsible for the discharge to an action
for damages, costs, and expenses of cleanup, or abate-
ment shall be to plead and prove that the occurrence
was solely the result of any of the following or any combi-
nation of the following:
(a) An act of war.
(b) An act of government, either state, federal, or
municipal.
(c) An act of God, which means only an unforesee-
able act exclusively occasioned by the violence of
nature without the interference of any human agency.
(d) An act or omission of a third party, without regard
to whether any such act or omission was or was not neg-
ligent.
(7) The defenses provided in subsection (6) shall not
apply with respect to a responsible party who fails or
refuses:
(a) To report the discharge as required by law, when
the responsible party knows or has reason to know of
the discharge; or
(b) To provide reasonable cooperation and assist-
ance requested by a state or federal on-scene coordina-
tor in connection with cleanup activities. The responsi-
ble party must file an objection with the department if
such party deems that cooperation or assistance
requested by a state or federal on-scene coordinator is
unreasonable. Such an objection must be filed with the
department within 48 hours of the request. If such
request is determined by the department to be unrea-
sonable, the responsible party shall be reimbursed from
the fund for expenses incurred in carrying out such
request. The responsible party may not file an objection
to a request based solely on the premise that the
requested activity did not have satisfactory results. If the
responsible party complies with the requests of the
state and federal on-scene coordinators and the respon-
sible party later pleads and proves a valid defense as
required by this section, all costs of cleanup shall be
reimbursed to the responsible party from the fund.
(8) In the event the total awards against the fund
shall exceed the present balance of the fund, the claim-
ants shall be paid from the future income of the fund.
(9) In the event the total awards for a specific occur-
rence exceed the current balance of the fund, the imme-
diate award shall be paid on a prorated basis, and all
claimants paid on a prorated basis shall be paid a pro
rata share of all funds received by the fund until the total
amount of the proven damages is paid to the claimant
or claimants. However, amounts collected by the fund
from the prosecution of causes of action pursuant to
paragraph (5)(d) and 2subsection (8) shall be utilized to
satisfy the claims as to which such prosecutions relate
to the extent theretofore unsatisfied.
(10) Nothing contained herein shall be construed to
limit the liability of vessels, terminal facilities, or the fund
for damages.
(11) In addition to the civil penalty, the pilot and the
master of any vessel or person in charge of any terminal
facility who fails to give immediate notification of a dis-
charge to the department or the nearest Coast Guard
station commits a felony of the third degree, punishable
as provided in s. 775.082, s. 775.083, or s. 775.084. How-
ever, a discharge of 1 gallon or less of gasoline from a
vessel shall not be subject to felony penalties for failure
to comply with the state notification requirements of this
subsection. After reporting a discharge, a vessel shall
remain in the jurisdiction of the department sufficient
time to prove financial responsibility for the damages
resulting from the discharge. The pilot and master of a
vessel which fails to remain in the jurisdiction of the
department for a reasonable time after notice of a dis-
charge shall be guilty of a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s.
775.084. In no event shall the department detain the ves-
sel longer than 12 hours after proving financial responsi-
bility. The department shall, by rule, require that the reg-
istrant designate a person at the terminal facility who
shall be the person in charge of that facility for the pur-
poses specified by this section.
History.—s. 12, ch. 70-244; s. 326, ch. 71-136: «. 12, ch. 74-336; ss. 4. 5, ch.
80-382 s. 18. ch. 90-54; s. 1, ch. 91-13S.
'Not*.—Substituted tor a reference to 'subsection (5)* to oonform to the renumber-
ing of subunitt of s. 376.12 by s. 18. ch. 60-64. and to coned en error.
•Mote.—Substituted tor s reference to "subsection (4)' to oonform to the renumber,
ing o< suburbs of s. 376.12 by s. 18. ch. 90-64. and to correct an error.
376.121 Liability for damages to natural resources.
The Legislature finds that extensive damage to the
state's natural resources is the likely result of a pollutant
9
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
spill and that it is essential that the state adequately
assess and recover the cost of such damages from
responsible parties. It is the state's goal to recover the
costs of restoration from the responsible parties and to
restore damaged natural resources to their prespill con-
dition. In many instances, however, restoration is not
technically feasible. In such instances, the state has the
responsibility to its citizens to recover the cost of all
damages to nonrestorable natural resources. To ensure
that the public does not bear a substantial loss as a
result of the destruction of nonrestorable natural
resources, a compensation schedule shall be used to
assess the cost of damages to such resources.
(1) The department shall assess and recover from
responsible parties the cost of damages for the injury or
destruction of natural resources, including, but not lim-
ited to, the death or injury of living things and damage
to or destruction of habitat, resulting from pollutant dis-
charges prohibited by s. 376.041. Damages, and any
costs of assessing and recovering damages, received
by the department shall be deposited into the Florida
Coastal Protection Trust Fund pursuant to s. 376.12 and
disbursed according to s. 376.11(4)(a)-(d). Whoever vio-
lates, or causes to be violated, s. 376.041 shall be liable
to the state and shall pay the state the sum necessary
to:
(a) Restore any injured or destroyed natural
resource to its condition prior to the spill, to the extent
technically feasible. Restoration shall include the cost to
restock waters and coastal areas, replenish or replace
natural resources, and otherwise restore any coastal
waters, estuaries, tidal flats, beaches, lands adjoining
the seacoast of the state, and submerged lands to their
condition prior to the spill.
(b) Compensate for damages to nonrestorable natu-
ral resources in accordance with the compensation
schedule authorized in paragraph (2Xb).
The determination of whether restoration is technically
feasible, or whether compensation shall be made pursu-
ant to the compensation schedule adopted pursuant to
paragraph (2)(b), shall be made by the department for
each species of animal and each type of habitat dam-
aged or destroyed by the pollutant spill.
(2) The department shall, with the assistance and
cooperation of the Game and Fresh Water Fish Commis-
sion and the Department of Environmental Regulation,
adopt rules by July 1, 1992, to.
(a) Establish guidelines for determining the restora-
tion value of injured or destroyed natural resources,
including all living things except human beings, and
coastal waters, estuaries, tidal flats, beaches, lands
adjoining the seacoast of the state, and submerged
lands. These guidelines shall be established using gen-
erally accepted and cost-effective resource valuation
methods and restoration techniques.
(b) Establish a compensation schedule for assess-
ing damages to nonrestorable natural resources with
standards for determining the cost of any lost ecologi-
cal, consumptive, intrinsic, recreational, scientific, eco-
nomic, aesthetic, and educational values of such injured
or destroyed resources. Nonrestorable natural
resources may include all living things except human
beings, coastal waters, estuaries, tidal flats, beaches,
tends adjoining the seacoasts of the state, and sub-
merged lands. The amount of compensation assessed
under this-schedule shall be no less than $1 per gallon
of pollutant spilled or equivalent unit as determined by
the department or per square foot of habitat impacted,
and no greater than $1,000 per gallon of pollutant spilled
or equivalent unit as determined by the department or
per square foot of habitat impacted. To establish the
compensation schedule, the department shall take into
account:
1. Any amounts paid for partial restoration which
offset the amounts which should be paid pursuant to the
compensation schedule.
2. Characteristics of the pollutant spilled, such as
the toxicity, dispersibility, solubility, and persistence,
that may affect the severity of the effects on the receiv-
ing environment, living things, and recreational and aes-
thetic resources.
3. The type and sensitivity of nonrestorable natural
resources affected by a spill, as determined by such fac-
tors as:
a. The location of a spill.
b. Habitat and living resource sensitivity.
c. Seasonal distribution of living resources.
d. Recreational use or aesthetic importance.
e. The proximity of a spill to important habitats for
animals and living things, or to species listed as threat-
ened, endangered, or of special concern under state or
federal law.
f. Other ecological, educational, consumptive,
intrinsic, scientific, and economic values of natural
resources.
4. Actions taken by the party who spilled the pollu-
tant, or any party liable for the spill, that:
a. Demonstrate a recognition and affirmative
acceptance of responsibility for the spill, such as the
immediate removal of the pollutant and the relative
amount of pollutant removed from the environment; or
b. Enhance or impede the detection of the spill, the
determination of the amount of pollutant spilled, or the
extent of damage, including the unauthorized removal
of evidence such as affected fish or wildlife.
(3) When assessing the amount of damages to natu-
ral resources, the department shall be assisted by repre-
sentatives of the Department of Environmental Regula-
tion, if requested by the department, as well as other
state agencies and local governments which would
enhance the department's damage assessment. The
Game and Fresh Water Fish Commission shall assist the
department in the assessment of damages to wildlife
impacted by a pollutant discharge and shall assist the
department in recovering the costs of such damages.
(4Xa) Moneys recovered by the department for dam-
ages to restorable natural resources shall be used for
the restoration of such damaged natural resources.
(b) Compensation recovered by the department for
damages to nonrestorable natural resources shall be
expended only for the following purposes:
1. Developing restoration and enhancement tech-
niques for natural resources.
2. Investigating methods for improving and refining
techniques for containment, abatement, and removal of
10
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
pollutants from the environment, especially from man-
grove forests, corals, seagrasses, benthic communities,
rookeries, nurseries, and other habitats which are
unique to Florida's coastal environment.
3. Developing and updating the 'Sensitivity of
Coastal Environments and Wildlife to Spilled Oil in Flori-
da' atlas.
4. Investigating the long-term effects of pollutant
spills on natural resources, including pelagic organisms,
critical habitats, and marine ecosystems.
5. Developing an adequate wildlife rescue and
rehabilitation program.
6. Expanding and enhancing the state's pollution
prevention and control education program.
7. Restoring natural resources previously impacted
by pollutant spills, but never completely restored.
8. Funding alternative projects selected by the
Board of Trustees of the Internal Improvement Trust
Fund. Any such project shall be selected on the basis
of its anticipated benefits to the residents of this state
who previously benefited from the injured or destroyed
nonrestorable natural resources.
Witoty.—«. t9, ch. 90-54.
376.13 Emergency proclamation; Governor's pow-
ers.—
(1) Whenever any emergency exists or appears
imminent, arising from the discharge of oil, petroleum
products or their byproducts, or any other pollutants,
the Governor shall by proclamation declare the fact and
that a state of emergency exists in any or all sections of
the state. If the Governor is unavailable, the Lieutenant
Governor shall, by proclamation, declare the fact and
that a state of emergency exists in any or all sections of
the state. A copy of such proclamation shall be filed with
the Department of State.
(2) In performing his duties under this section, the
Governor is authorized and directed to cooperate with
all departments and agencies of the Federal Govern-
ment, the offices and agencies of other states and for-
eign countries and the political subdivisions thereof, and
private agencies in all matters pertaining to an emer-
gency as described herein.
(3) In performing his duties under this section, the
Governor is further authorized and empowered:
(a) To make, amend, and rescind the necessary
orders, rules, and regulations to carry out this section
within the limits of the authority conferred upon him and
not inconsistent with the rules, regulations, and direc-
tives of the President of the United States or of any fed-
eral department or agency having specifically author-
ized emergency functions.
(b) To delegate any authority vested in him under
this section and to provide for the subdelegation of any
such authority.
(4) Whenever the Governor is satisfied that an emer-
gency no longer exists, he may terminate the proclama-
tion by another proclamation affecting the sections of
the state covered by the original proclamation, or any
part thereof. The proclamation shall be published in
such newspapers of the state and posted in such places
as the Governor, or any person acting in that capacity,
deems appropriate.
Htrtory.—s. 13, ch. 70-2*4: ». 1. ch. 70—*39: >. 39. ch. B3-334.
376.14 Terminal facilities and vessels; financial
responsibility.—
(1) Each owner or operator of a terminal facility or
vessel, including any barge, using any port in Florida
shall be required to establish and maintain evidence of
financial responsibility pursuant to federal laws and reg-
ulations. Such evidence of financial responsibility shall
be the only evidence required by the department that
such registrant or vessel has the ability to meet the liabil-
ities which may be incurred under ss. 376.011-376.21.
(2) Any claim brought pursuant to ss. 376.011-
376.21 by the fund or any damaged party may be
brought directly against the bond, the insurer, or any
other person providing a terminal facility or vessel with
evidence of financial responsibility.
(3) Each owner or operator of a terminal facility or
vessel subject to the provisions of ss. 376.011-376.21
shall designate a person in the state as his legal agent
for service of process under ss. 376.011-376.21, and
such designation shall be filed with the Department of
State. In the absence of such designation, the Secretary
of State shall be the designated agent for purposes of
service of process under ss. 376.011-376.21.
WMOfy.—». 14, ch. 70-244: >. 1, ch. 70-439:». 13. ch. 74-336.
376.15 Derelict vessels; removal from public
waters.—
(1) It is unlawful for any person, firm, or corporation
to store or leave any vessel in a wrecked, junked, or sub-
stantially dismantled condition or abandoned upon any
public waters or at any port in this state without the con-
sent of the agency having jurisdiction thereof or docked
at any private property without the consent of the owner
of the private property.
(2)(a) The department is hereby designated as the
agency of the state authorized and empowered to
remove any derelict vessel as described in subsection
(1) from public waters.
(b) The department may establish a program to pro-
vide grants to coastal local governments for the removal
of derelict vessels from the public waters of the state.
The program shall be funded from the Florida Coastal
Protection Trust Fund. Notwithstanding the provisions in
1s. 216.181(8), funds available for grants may only be
authorized by appropriations acts of the Legislature.
(c) The department shall adopt by rule procedures
for submitting a grant application and criteria for allocat-
ing available funds. Such criteria shall include, but not
be limited to, the following:
1. The number of derelict vessels within the juris-
diction of the applicant.
2. The threat posed by such vessels to public
health or safety, the environment, navigation, or the aes-
thetic condition of the general vicinity.
3. The degree of commitment of the local govern-
ment to maintain waters free of abandoned and derelict
vessels and to seek legal action against those who
abandon vessels in the waters of the state.
(d) This section shall constitute the authority of the
department for such removal, but is not intended to be
in contravention of any applicable federal act.
(e) The Department of Legal Affairs shall represent
the Department of Natural Resources in such actions.
11
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
HMwy—a. 15, eh. 70-244: «. 1, eft. 70-439: «. 6. ch 80-382 a. 7. ch. 8S-S62
Wat*—Section 3, eh. 86-297. lanisnbwad aifeaacticn (8) of a. 216.181. daolng
with chmQw in amounta awiupiitfBfl from atata tniattunos. aa aubaaction (9). 8«c-
Hon 9, ch. 89-61. renunitwud aubaaction (9) «s lutnw: tt:m (7) and amandad tha
aulnaacttai aubatantiaty to daal with tha banafar of approprtaUona In the Qanaral
ApproprWiona Act within any Matt mot (ml
376.1f Enforcement and penalties.—
(1) It is unlawful for any person to violate any provi-
sion of ss. 376.011-376.21 or any rule or order of the
department made hereunder. Violation shall be punish-
able by a civil penalty of up to $50,000 per violation per
day to be assessed by the department. Each day during
any portion of which the violation occurs constitutes a
separate offense.
(2) In addition to penalties set forth in subsection (1),
a person responsible for two or more discharges
reported pursuant to s. 376.12 in a 12-month period
commits a noncriminal infraction, shall be cited by the
department for such an infraction, and shall be cited to
appear for a hearing before the county court for the
county in which the violation occurred, or the county
court closest to the location et which the violation
occurred. For discharges of gasoline over 5 gallons, the
court may impose a civil penalty up to $500 for the sec-
ond discharge and a civil penalty up to $1,000 for each
subsequent discharge within a 12-month period. For
discharges of gasoline equal to or less than 5 gallons the
court may impose a civil penalty of $50.
(3) Any person charged with a noncriminal infraction
pursuant to subsection (2) may:
(a) Pay the civil penalty, either by mail or in person,
within 10 days of the date of receiving the citation; or
(b) Elect to appear before the county court for a
hearing, the date, time, and location of which shall be so
indicated on the citation. If the court determines that an
infraction has been proven beyond a reasonable doubt,
the court may impose a civil penalty in the amounts pro-
vided in subsection (2), and may also impose court
costs and other applicable charges.
(4) Penalties assessed herein for a discharge shall
be the only penalties assessed by the state, and the
assessed person or persons shall be excused from pay-
ing any additional penalty for water pollution assessable
under chapter 403 for the same occurrence.
(5) The penalty provisions of subsection (1) shall not
apply to any discharge promptly reported and removed
by a registrant or vessel in accordance with the rules,
regulations, and orders of the department. However, the
penalty provisions of subsection (2) shall apply if the
responsible person is a repeat violator.
History.—ss. 10,16. ch. 70-244: ss 7.14. ch. 74-336: a. 20. ch. 90-64.
1376.163 Pollutant Spill Technical Advisory Council.
(1) There is hereby established the Pollutant Spill
Technical Advisory Council.
(2) The council shall advise the Department of Natu-
ral Resources and the Department of Environmental
Regulation in the implementation of the recommenda-
tions of the Spill Response Task Force and other matters
relating to pollution control and response.
(3) The council shall be appointed by the executive
director of the Department of Natural Resources and
shall be chaired by the executive director or his desig-
nee. Meetings shall be held at the call of the chairman,
but at least quarterly.
(4) The council shall be composed of, but not limited
4o. representatives of the following interests: shipping,
bunkering, terminal facilities and ports, environmental,
port pilots, wildlife recovery, spillage control coopera-
tives, the community college system, the Game and
Fresh Water Fish Commission, and the Department of
Environmental Regulation.
(5) Each task force member shall be entitled to
receive per diem and expenses for travel, as provided
in s. 112.061, while carrying out official business of the
council.
Wttwy.-M. 21,26, ch 80-64
1IBU Lpsi October 1,2000. purauant to a. 26, oh. 90-64, and tha PoButant
Spit TacMoti Mriaory Oounca la aohaAiad for wvtaw puauant to a. 11311.
376.165 "Hold-harmless" agreements prohibited.
Any agreement entered into after July 1.1974, to "hold-
harmless' a vessel or terminal faciOty from liability for the
occurrence of a discharge prohibited by ss. 376.011-
376.21, agreed to by a governmental agency or political
subdivision, is deemed contrary to public policy and is
hereby prohibited.
History—• 14, ch. 74-336.
376.17 Reports to the Legislature.—The depart-
ment shall include in its recommendations to each regu-
lar session of the Legislature specific recommendations
relating to the operation of ss. 376.011-376.21.
History.—e 17. ch. 70-244: a. 15. ch. 74-396.
376.185 Budget approval.—The department shall
submit to each regular session of the Legislature its
budget recommendations for disbursements from the
fund pursuant only to s. 376.11(4Xa). Upon appropria-
tion thereof by the Legislature, the Comptroller shall
authorize expenditures therefrom as approved by the
department.
History.—« 2, eh. 83-353: a. SO. ch. 91-221.
376.19 County and municipal ordinances; powers
limited.—Nothing in ss. 376.011-376.21 shall be con-
strued to deny any county or municipality authority to
exercise police powers by ordinance or law under any
general or special act, and laws and ordinances promul-
gated in furtherance of the intent of ss. 376.011-376.21
to promote the general welfare, public health, and public
safety shall be valid unless in direct conflict with the pro-
visions of ss. 376.011-376.21 or any rule, regulation, or
order of the department adopted under authority of ss.
376.011-376.21. However, in order to avoid unneces-
sary duplication, no county, municipality, or other politi-
cal subdivision of the state may adopt or establish a sim-
ilar program of licensing and fees for the accomplish-
ment of the purposes of ss. 376.011-376.21.
History.—* 19. ch. 70-2*4.
376.20 Limitation on application.—Nothing in ss.
376.011-376.21 shall be deemed to apply to the storage
or transportation of liquefied petroleum gas or to indus-
trial effluents discharged into the waters or atmosphere
of the state pursuant to either a federal or state permit.
Malay.—a. 20. eh. 70-244; a. 2. eh. 71-137: a. 17, eh. 74-338.
376.205 Individual cause of action for damages
under ss. 376.011-376.21.—The remedies in this act
shall be deemed to be cumulative and not exclusive.
-------
F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
Nothing in this act shall require pursuit of any claim
against the fund as a condition precedent to any other
remedy. Notwithstanding any other provision of law,
nothing contained herein shall prohibit any person from
bringing a cause of action in a court of competent juris-
diction for all damages resulting from a discharge or
other condition of pollution covered by ss. 376.011-
376.21. In any such suit, it shall not be necessary for the
person to plead or prove negligence in any form or man-
ner. Such person need only plead and prove the fact of
the prohibited discharge or other pollutive condition and
that it occurred. The only defenses to such cause of
action shall be those specified in s. 376.12(6). In addition
to any other remedy, the injured party shall be entitled
to recover costs of the action and reasonable attorneys'
fees.
Mttory.—«. 18. ch. 74-336; s. 51. ch. 91-221.
376.21 Construction of ss. 376.011-376.21.—Sec-
tions 376.011-376.21, being necessary for the general
welfare and the public health and safety of the state and
its inhabitants, shall be liberally construed to effect the
purposes set forth under ss. 376.011-376.21 and the
Federal Water Pollution Control Act, as amended.
HUtsry.—s. 21, ch. 70-244; s. 19, ch. 74-336.
376.22 Port Trust Fund; creation; purposes.—
(1) There is hereby established the Port Trust Fund
to be administered by the Department of Natural
Resources and used for requirements imposed by the
department as a condition of a permit or other form of
approval; for environmental mitigation required as a con-
dition of a state, federal, or local environmental permit;
and for the acquisition of spoil disposal sites and
improvements to existing and future spoil sites, for the
ports of Jacksonville, Port Canaveral, Ft. Pierce, Palm
Beach, Port Everglades, Miami, Port Manatee, Tampa,
St. Petersburg Bayboro Harbor, Port St. Joe, Panama
City, Pensacola, and other governmental entities which
have deepwater commercial navigation as their primary
purpose. On July 1, 1986, the balance of the moneys
which accrued to the Florida Coastal Protection Trust
Fund for these purposes after June 30, 1980, shall be
transferred to this fund.
(2) Moneys in the Port Trust Fund that are not
needed currently to meet the obligations of this fund
shall be deposited with the Treasurer to the credit of the
fund and may be invested in such manner as is provided
for by statute. Interest received on such investment shall
be credited to the fund.
(3Xa) The Department of Natural Resources shall
establish a priority list of projects to be undertaken using
moneys from the fund, after considering all recommen-
dations received. In this program, the department shall,
where applicable, take into consideration, but shall not
limit its consideration to, the existing need of each port
for spoil disposal sites; the frequency and volume of
maintenance dredging at each port; the movement of
petroleum and other pollutant hazards at each port; the
protection of recreational and environmental quality;
whether the proposed project meets the permit require-
ments of chapters 253 and 403; and whether the pro-
posed project is required as a condition of a permit or
other approval issued by the department, Department
of Environmental Regulation, Federal Environmental Pro-
tection Agency, U.S. Army Corps of Engineers, water
management district, or local government.
(b) The recipient port authority or appropriate gov-
ernmental entity shall contribute not less than 50 per-
cent of the cost of a project. Such contribution may
include land owned or related improvements made by
a port. The department shall establish procedures for
the payment of funds and matching contributions
consistent with the provisions of this paragraph.
(4)(a) Any moneys received by a recipient port
authority or appropriate governmental entity from the
sale of dredged materials deposited on a spoil disposal
site acquired or improved under this section, or from the
sale of a spoil disposal site acquired under this section,
shall be paid to the fund until the fund has been reim-
bursed for its participation in the acquisition or improve-
ment of that site. After such reimbursement, any such
moneys shall be paid to the contributing governmental
entity until that entity has been reimbursed for its contri-
bution, and thereafter all such moneys shall be paid to
the fund.
(b) Any revenue received by a recipient port author-
ity or appropriate governmental entity after the acquisi-
tion or improvement of a disposal site, except from the
sale of spoil or for revenues pledged as a bonding obli-
gation incurred prior to state participation in the project,
shall be paid to the fund until the fund has been reim-
bursed, with interest at the legal interest rate, for its par-
ticipation in the acquisition or improvement of that site.
Any revenue received from the sale of spoil shall be
repaid in accordance with paragraph (a).
Mttwy.—1.9, ch. 86-159.
376.30 Legislative Intent with respect to pollution
of surface and ground waters.—
(1) The Legislature finds and declares:
(a) That certain lands and waters of Florida consti-
tute unique and delicately balanced resources and that
the protection of these resources is vital to the economy
of this state;
(b) That the preservation of surface and ground
waters is a matter of the highest urgency and priority, as
these waters provide the primary source for potable
water in this state; and
(c) That such use can only be served effectively by
maintaining the quality of state waters in as close to a
pristine condition as possible, taking into account multi-
ple-use accommodations necessary to provide the
broadest possible promotion of public and private inter-
ests.
(2) The Legislature further finds and declares that:
(a) The storage, transportation, and disposal of pol-
lutants within the jurisdiction of the state and state
waters is a hazardous undertaking;
(b) Spills, discharges, and escapes of pollutants
that occur as a result of procedures taken by private and
governmental entities involving the storage, transporta-
tion, and disposal of such products pose threats of great
danger and damage to the environment of the state, to
citizens of the state, and to other interests deriving liveli-
hood from the state;
13
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
(c) Such hazards have occurred in the past, are
occurring now, and present future threats of potentially
catastrophic proportions, all of which are expressly
declared to be inimical to the paramount interests of the
state as set forth in this section; and
(d) Such state interests outweigh any economic bur-
dens imposed by the Legislature upon those engaged
in storing, transporting, or disposing of pollutants and
related activities.
(3) The Legislature intends by the enactment of ss.
376.30-376.319 to exercise the police power of the state
by conferring upon the Department of Environmental
Regulation the power to:
(a) Deal with the environmental and health hazards
and threats of danger and damage posed by such stor-
age, transportation, disposal, and related activities;
(b) Require the prompt containment and removal of
products occasioned thereby; and
(c) Establish a program which will enable the depart-
ment to:
1. Provide for expeditious restoration or replace-
ment of potable water systems or potable private wells
of affected persons where health hazards exist due to
contamination from pollutants (which may include provi-
sion of bottled water on a temporary basis, after which
a more stable and convenient source of potable water
shall be provided), subject to the following conditions:
a. For the purposes of this subparagraph, the term
'restoration' means restoration of a contaminated pota-
ble water supply to a level which meets applicable water
quality standards or applicable water quality criteria, as
adopted by rule, for the contaminant or contaminants
present in the water supply, or, where no such stand-
ards or criteria have been adopted, to a level which is
determined to be a safe, potable level by the State
Health Officer in the Department of Health and Rehabili-
tative Services, through the installation of a filtration sys-
tem and provision of replacement filters as necessary or
through employment of repairs or another treatment
method or methods designed to remove or filter out con-
tamination from the water supply; and the term 'replace-
ment" means replacement of a well or well field or con-
nection to an alternative source of safe, potable water.
b. For the purposes of the Inland Protection Trust
Fund, such restoration or replacement shall take prece-
dence over other uses of the unobligated moneys within
the fund.
c. Funding for activities described in this subpara-
graph shall not exceed $10 million for any one county for
any one year, other than for the provision of bottled
water.
d. Funding for activities described in this subpara-
graph shall not be available to fund any increase in the
capacity of a potable water system or potable private
well over the capacity which existed prior to such resto-
ration or replacement, unless such increase is the result
of the use of a more cost-effective alternative than other
alternatives available.
2. Provide for the inspection and supervision of
activities described in this subsection; and
3. Guarantee the prompt payment of reasonable
costs resulting therefrom, including those administrative
costs incurred by the Department of Health and Rehabil-
itative Services in providing field and laboratory ser-
vkses, toxicological risk assessment, and other services
to the department in the investigation of drinking water
contamination complaints.
(4) The Legislature further finds and declares that
the preservation of the quality of surface and ground
waters is of prime public interest and concern to the
state in promoting its general welfare, preventing dis-
ease, promoting health, and providing for the public
safety and that the interest of the state in such preserva-
tion outweighs any burdens of liability imposed by the
Legislature upon those persons engaged in storing pol-
lutants and related activities.
(5) The Legislature further declares that it is the
intent of ss. 376.30-376.319 to support and complement
applicable provisions of the Federal Water Pollution Con-
trol Act, as amended, specifically those provisions relat-
ing to the national contingency plan for removal of pollu-
tants.
NWwy—«. 94. ch. 83-310: *. 5, eh. W-338 110, eft. ». 1. ch. 80-168.
376.301 Definitions of terms used In ss. 376.30-
376.319.—When used in ss. 376.30-376.319, unless the
context clearly requires otherwise, the term:
(1) 'Barrel' means 42 U.S. gallons at 60 degrees Fah-
renheit.
(2) "Bulk product facility" means a coastal waterfront
location with at least one aboveground tank with a
capacity greater than 30,000 gallons which is used for
the storage of pollutants.
(3) 'Department" means the Department of Environ-
mental Regulation.
(4) "Discharge* includes, but is not limited to, any
spilling, leaking, seeping, pouring, misapplying, emit-
ting, emptying, or dumping of any pollutant which
occurs and which affects lands and the surface and
ground waters of the state not regulated by ss. 376.011-
376.21.
(5) "Facility" means a nonresidential location contain-
ing any underground stationary tank or tanks which con-
tain hazardous substances or pollutants and have indi-
vidual storage capacities greater than 110 gallons, or
any aboveground stationary tank or tanks which contain
pollutants which are liquids at standard ambient temper-
ature and pressure and have individual storage capaci-
ties greater than 550 gallons. This definition shall not
include facilities covered by chapter 377, or containers
storing solid or gaseous pollutants, end agricultural
tanks having storage capacities of less than 550 gallons.
(6) 'Hazardous substances' means those sub-
stances defined as hazardous substances in the Com-
prehensive Environmental Response, Compensation
and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat.
2767.
(7) "Marine fueling facilities* means a commercial or
recreational coastal facility providing fuel to vessels,
excluding bulk product facilities.
(8) "Operator* means any person operating a facility,
whether by lease, contract, or other form of agreement.
(9) "Owner" means any person owning a facility.
(10) "Person" means any individual, partner, joint ven-
ture, or corporation; any group of the foregoing, orga-
nized or united for a business purpose; or any govern-
mental entity.
14
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
(11) "Person in charge" means the person on the
scene who is in direct, responsible charge of a facility
from which pollutants are discharged, when the dis-
charge occurs.
(12) "Person responsible for conducting site reha-
bilitation" means the site owner, operator, or the person
designated by the site owner or operator on the reim-
bursement application. Mortgage holders and trust hold-
ers may be eligible to participate in the reimbursement
program pursuant to s. 376.3071(12).
(13) "Petroleum" includes:
(a) Oil, including crude petroleum oil and other
hydrocarbons, regardless of gravity, which are pro-
duced at the well in liquid form by ordinary methods and
which are not the result of condensation of gas after it
leaves the reservoir; and
(b) All natural gas, including casinghead gas, and all
other hydrocarbons not defined as oil in paragraph (a).
(14) "Petroleum product" means any liquid fuel com-
modity made from petroleum, including, but not limited
to, all forms of fuel known or sold as diesel fuel, kero-
sene, all forms of fuel known or sold as gasoline, and
fuels containing a mixture of gasoline and other prod-
ucts, excluding liquefied petroleum gas and American
Society for Testing and Materials (ASTM) grades no. 5
and no. 6 residual oils, bunker C residual oils, intermedi-
ate fuel oils (IFO) used for marine bunkering with a vis-
cosity of 30 and higher, asphalt oils, and petrochemical
feedstocks.
(15) "Petroleum storage system" means a stationary
tank not covered under the provisions of chapter 377,
together with any onsite integral piping or dispensing
system associated therewith, which is used, or intended
to be used, for the storage or supply of any petroleum
product as defined herein, and which:
(a) Is registered with the Department of Environmen-
tal Regulation under this chapter or any rule promul-
gated pursuant hereto;
(b) Is located in a terminal facility registered with the
Department of Natural Resources under this chapter or
any rule promulgated pursuant hereto;
(c) Is located in a storage facility licensed with the
Department of Revenue under s. 206.022 or 1s.
206.9930, excluding offsite pipelines;
(d) Is a system with respect to which notification has
been submitted to the Department of Environmental
Regulation under s. 376.303; or
(e) Is a system with respect to which notification has
been submitted to the appropriate state agency under
Subtitle I of the Resource Conservation and Recovery
Act.
Petroleum storage systems may also include oil/water
separators, and other pollution control devices installed
to meet the rules promulgated pursuant to this chapter.
(16) "Pollutants" includes any "product" as defined in
s. 377.19(11), pesticides, ammonia, chlorine, and deriva-
tives thereof, excluding liquefied petroleum gas.
(17) "Pollution" means the presence on the land or in
the waters of the state of pollutants in quantities which
are or may be potentially harmful or injurious to human
health or welfare, animal or plant life, or property or
which may unreasonably interfere with the enjoyment of
life or property, including outdoor recreation.
(18) "Response action" means any activity, including
evaluation, planning, design, engineering, construction,
and ancillary services, which is carried out in response
to any discharge, release, or threatened release of a haz-
ardous substance, pollutant, or other contaminant from
a facility or site identified by the department under the
provisions of ss. 376.30-376.319.
(19) "Response action contractor" means a person
who is carrying out any response action, including a per-
son retained or hired by such person to provide services
relating to a response action.
(20) "Secretary" means the Secretary of the Depart-
ment of Environmental Regulation.
KUtory.—« 64. ch. 83-310: «. 6, ch. 84-338; «. 11, oh. 86-159; t. 2. <*l. 89-186;
t. 22, ch. 90-54; s. 9. ch. 90-96: *. 12. ch. 91-30S.
'Not*.—Section 206.9930 doe* not exist.
376.302 Discharge of pollutants prohibited.—The
discharge of pollutants into or upon any waters of the
state or lands, which discharge violates'any departmen-
tal 'standard* as defined in s. 403.803(13), is prohibited.
Httoiy.—«. 64, cti. 83-310: s. 8. ch. 84-338.
376.303 Powers and duties of the Department of
Environmental Regulation.—
(1) The department has the power and the duty to:
(a) Establish rules, including, but not limited to, con-
struction standards, permitting or registration of tanks,
maintenance and installation standards, and removal or
disposal standards, to implement the intent of ss.
376.30-376.319 and to regulate underground and
aboveground facilities and their onsite integral piping
systems. Such rules may establish standards for under-
ground facilities which store hazardous substances or
pollutants, and marine fueling facilities and above-
ground facilities, not covered by chapter 377, which
store pollutants. Beginning January 1,1991, the depart-
ment shall register bulk product facilities and shall issue
annual renewals of such registrations. Requirements for
facilities with underground storage tanks having storage
capacities over 110 gallons that store hazardous sub-
stances shall not be effective until January 1, 1991. The
department shall maintain a compliance verification pro-
gram for this section, which may include investigations
or inspections to locate improperly abandoned tanks
and which shall be implemented upon termination of the
Early Detection Incentive Program established under s.
376.3071(9) or December 31, 1987, whichever is earlier.
The department may contract with other governmental
agencies or private consultants to perform compliance
verification activities. The contracts may provide for an
advance of working capital to local governments to
expedite the implementation of the compliance verifica-
tion program. Counties with permit or registration fees
for storage tanks or storage tank systems are not eligi-
ble for advance funding for the compliance verification
program.
(b) For each tank registered with the department
under this section, issue a registration placard listing all
registered tanks at a facility, to be displayed in plain
view in the office, kiosk, or other suitable location at the
facility where the tanks are located. For new facilities, an
initial registration fee of $50 per tank is due and payable
within 30 days after receipt of notification by the depart-
15
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
ment. Owners or operators that upgrade their facilities
by replacing their existing tanks are required to pay a
tank replacement registration fee of $25 per tank within
30 days after receipt of notification by the department.
Owners and operators of new facilities and those with
existing facilities replacing their tanks are required to
notify the department 10 days prior to installation of any
tanks, using approved department forms. An annual
renewal fee in the amount of $25 per tank shall be
imposed upon the tank owner, to be due and payable
by July 1 of each year, except that stationary tanks of
110 gallons or less at nonresidential locations and agri-
cultural tanks of 550 gallons or less shall not be required
to pay a registration fee. The department shall notify
each registrant of the annual renewal fee requirement no
later than June 1 of each year. Any payment over 30
days past due shall be deemed delinquent, and the reg-
istrant shall be required to pay an additional $20 late fee
for each tank with respect to which payment is delin-
quent. After January 1,1990, marine fueling facilities are
required to pay all registration fees specified in this sec-
tion in lieu of the annual registration fees required under
'ss. 376.051 and 376.06. Any existing unregistered facil-
ity that fails to register by Cfctober 1,1989, shall pay all
previous registration fees that should have been paid in
accordance with this section beginning on July 1,1986,
and which were avoided through noncompliance. By
October 1,1991, bulk product facilities shall be required
to pay a registration fee and annual renewal fee not to
exceed $1,000 per tank, in lieu of the annual registration
fees required under s. 376.06. The department shall
develop by rule a fee schedule sufficient to cover the
costs associated with registration, inspection, surveil-
lance, and other activities associated with ss. 376.30-
376.319. Revenues derived from fees imposed upon
tanks storing petroleum products as defined in s.
376.301 shall be deposited in the Inland Protection Trust
Fund established under s. 376.3071; all other revenues
derived from such fees shall be deposited in the Water
Quality Assurance Trust Fund established under s.
376.307.
(c) Provide for the development and implementation
of criteria and plans to prevent and meet occurrences
of pollution of various kinds and degrees.
(d) Establish a requirement thai any facility covered
by this act be subject to complete and thorough inspec-
tions at reasonable times. Any facility which has dis-
charged a pollutant in violation of the provisions of ss.
376.30-376.319 shall be fully and carefully monitored by
the department to ensure that such discharge does not
continue to occur.
(e) Keep an accurate record of the costs and
expenses incurred for the removal of prohibited dis-
charges and, except as otherwise provided by law,
thereafter diligently pursue the recovery of any sums so
incurred from the person responsible or from the United
States Government under any applicable federal act,
unless the department finds the amount involved too
small or the likelihood of recovery too uncertain.
(f) Bring an action on behalf of the state to enforce
the liabilities imposed by ss. 376.30-376.319. The provi-
sions of ss. 403.121, 403.131, 403.141, and 403.161
apply to enforcement under ss. 376.30-376.319.
(2) The powers and duties of the department under
ss 376.30-376.319 shall extend to the land mass of the
state not described in ss. 376.011-376.21.
(3Xa) The department may inspect the installation of
any pollutant storage tank. Any person installing a pollu-
tant storage tank, as defined in s. 489.133, shall certify
that such installation is in accordance with the stand-
ards adopted pursuant to this section. The department
shall promulgate a form for such certification which shall
at a minimum include:
1. A signed statement by the certified pollutant
storage systems specialty contractor, as defined in s.
489.133, that such Installation is in accordance with
standards adopted pursuant to this section; and
2. Signed statements by the onsite persons per-
forming or supervising the installation of a pollutant stor-
age tank, which statements shall be required of tasks
that are necessary for the proper installation of such
tank.
(b)1. The department shall, to the greatest extent
possible, contract with local governments to provide for
the administration of its responsibilities under this sub-
section. Such contracts may allow for administration out-
side the jurisdictional boundaries of a local government.
However, no such contract shall be entered into unless
the local government is deemed capable of carrying out
such responsibilities to the satisfaction of the depart-
ment.
2. To this end, the department shall inform local
governments as to the provisions of this section and as
to their options hereunder. At its option, any local gov-
ernment may apply to the department for such purpose
on forms to be provided by the department and shall
supply such information as the department may require.
(c) The department may enjoin the installation or use
of any pollutant storage tank that has been or is being
installed in violation of this section or of s. 489.133.
(d) No new or replaced tanks at bulk product facili-
ties may be put into service or filled with pollutants until
the facility has been inspected by the department and
determined to be in compliance with department rules
adopted pursuant to this chapter. During routine compli-
ance inspections, the department will verify that a facility
has been issued a current spill prevention and response
certificate from the Department of Natural Resources.
Hlitwy.—«. 84. ch. 83-310. t. 8, ch. 84-338 s. 12. eh. 86-159. s. 2. ch. 67-374:
*. 17. ch. 88-1S6; t 1. eh. 88-331:». 6. ch. 89-143; >. 3, ch. 89-188; *. 23. eh. 90-64.
Hot* Section 37&0S1 dot* not nftrtnot mutl ragistation teas.
376.304 Review and analysis of disposal materials
or byproducts; disposal at designated local govern-
ment solid waste disposal facilities.—
(1) The Legislature finds and declares that it is in the
public interest to facilitate the activities necessary and
essential to clean up the release of pollutants which
threaten Florida's unique and fragile environment. The
Legislature finds that it is in the public interest to autho-
rize appropriate actions to manage and control the costs
associated with activities integrally involved with
cleanup of sites contaminated with pollutants.
(2) The Department of Environmental Regulation is
authorized to review and analyze the disposal materials
or byproducts used or resulting from the cleanup of the
release of pollutants in the waters of the state. Such
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
materials that are determined by the department not to
require extraordinary handling or disposal requirements
may be designated for disposal in nearby existing local
government solid waste disposal facilities where such
facilities are determined to be designed and operated in
a manner where disposal of such materials would not
constitute an unreasonable risk to public health and the
environment. Such designation by the department shall
not be disallowed by actions of the local government
responsible for operating the solid waste disposal facil-
ity. The designation by the department of a local govern-
ment's solid waste facility as the location for disposing
of materials and byproducts resulting from the activities
essential to the cleanup of pollutants in the waters of the
state shall constitute final agency action subject to
review pursuant to chapter 120.
Hlitory.—>. 27. ch. 90-54.
376.305 Removal of prohibited discharges.—
(1) Any person discharging a pollutant as prohibited
by ss. 376.30-376.319 shall immediately undertake to
contain, remove, and abate the discharge to the satis-
faction of the department. However, such an undertak-
ing to contain, remove, or abate a discharge shall not be
deemed an admission of responsibility for the discharge
by the person taking such action. Notwithstanding this
requirement, the department may undertake the
removal of the discharge and may contract and retain
agents who shall operate under the direction of the
department.
(2) If the person causing the discharge, or the per-
son in charge of facilities at which the discharge has
taken place, fails to act immediately, the department
may arrange for the removal of the pollutant; except
that, if the pollutant was discharged into or upon the
navigable waters of the United States, the department
shall act in accordance with the national contingency
plan for removal of such pollutant as established pursu-
ant to the Federal Water Pollution Control Act, as
amended, and the costs of removal incurred by the
department shall be paid in accordance with the appli-
cable provisions of that law. Federal funds provided
under that act shall be used to the maximum extent pos-
sible prior to the expenditure of state funds.
(3) No action taken by any person to contain or
remove a discharge, whether such action is taken volun-
tarily or at the request of the department or its designee,
shall be construed as an admission of liability for the dis-
charge.
(4) No person who, voluntarily or at the request of
the department or its designee, renders assistance in
containing or removing any pollutant shall be liable for
any civil damages to third parties resulting solely from
the acts or omissions of such person in rendering such
assistance, except for acts or omissions amounting to
gross negligence or willful misconduct.
(5) Nothing in ss. 376.30-376.319 shall effect the
right of any person to render assistance in containing or
removing any pollutant or any rights which that person
may have against any third party whose acts or omis-
sions in any way have caused or contributed to the dis-
charge of the pollutant.
(6) Any person who renders assistance in containing
or removing any pollutant may be eligible for reimburse-
ment of the cost of containment or removal, provided
prior approval for such reimbursement is granted by the
department. The department may, upon petition and for
good cause shown, waive the prerequisite for prior
approval of such reimbursement.
(7Xa) The Legislature recognizes the need to pro-
tect groundwater and especially drinking water supplies
from releases from petroleum storage systems. A need
exists to encourage prompt reporting and cleanup of
sites contaminated by releases from petroleum storage
systems. While the Early Detection Incentive Program
authorized by 8. 376.3071(9) provided financial assist-
ance for responding to contaminated sites, that program
ended on December 31, 1988. The Legislature recog-
nizes a continuing need to provide financial assistance
for cleanup of sites that have petroleum storage sys-
tems that have been abandoned or are no longer in ser-
vice.
(b) For purposes of this section, the term "aban-
doned petroleum storage system" shall mean any petro-
leum storage system that has not stored petroleum
products for consumption, use, or sales after March 1,
1990, and:
1. Was not required to be registered with the
department when said system was in service;
2. Was registered by a previous owner who is not
the current owner or operator; or
3. Was placed out of service after December 31,
1988, due to the responsible person's decision not to
continue in business at that site for storing petroleum
products for consumption, use, or sale.
(c) The department shall establish the Abandoned
Tank Restoration Program to facilitate the restoration of
sites contaminated by abandoned petroleum storage
systems under the restoration program of the Petroleum
Liability Insurance and Restoration Program in s.
376.3072. To be included in the Abandoned Tank Resto-
ration Program, the responsible person must close the
storage tank system in accordance with rules adopted
pursuant to s. 376.303, and shall submit an application
to the department on forms supplied by the department,
by June 30, 1992, demonstrating that:
1. The abandoned storage system was placed out
of service due to the responsible person's decision not
to continue in business; and
2. The site with the abandoned petroleum storage
system is not otherwise eligible for cleanup pursuant to
s. 376.3071(9) or s. 376.3072.
(d) Sites accepted into the program will be eligible
for reimbursement of cleanup costs as provided in s.
376.3071(5) and (12) after satisfying the criteria of s.
376.3072(2). Eligible responsible persons who provide
certification that they qualify as a small business under
s. 288.703(1) or corporation not for profit under chapter
617 may choose to be incorporated into the state-
contracted cleanup prioritization in accordance with the
rule promulgated pursuant to s. 376.3071(5)(a) and shall
also be subject to the criteria in s. 376.3072(2). All site
rehabilitation shall comply with the cleanup criteria and
procedures adopted pursuant to s. 376.3071. The Aban-
doned Tank Restoration Program shall use the Inland
17
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
Protection Trust Fund authorized pursuant to s.
376.3071 to carry out this section. Eligibility in the Aban-
doned Tank Restoration Program shall be determined by
the department.
(e) Eligibility for participation in the Abandoned Tank
Restoration Program pursuant to this section shall not
be available for:
1. Petroleum storage systems located on the prop-
erty of the Federal Government;
2. Sites with leaking tanks that store pollutants that
are not petroleum products as defined in s. 376.301; or
3. Sites where the department has been denied
access.
(f) Notwithstanding other criteria set forth in this
section, any petroleum storage system that was not
required to be registered with the department when
such system was in service, was purchased by the cur-
rent owner after the system was abandoned, was never
returned to service, and is not otherwise eligible for
cleanup pursuant to s. 376.3071(9) or s. 376.3072 is eligi-
ble for the Abandoned Tank Restoration Program.
Htttofy.—• 64. ch. 83-310; ». 13. ch. 86-159;«. 12, eh. 90-88.1.13. eh. 91-305.
376.307 Water Quality Assurance Trust Fund.—
(1) There is created in the State Treasury the Water
Quality Assurance Trust Fund, to be administered by
the Department of Environmental Regulation.
(2) The Water Quality Assurance Trust Fund may be
used to carry out the provisions of ss. 376.30-376.319,
other than the provisions of ss. 376.3071 and 376.3073;
for the expeditious restoration or replacement of potable
water supplies as provided in s. 376.30(3)(c)1.; and for
the investigation, assessment, cleanup, restoration,
maintenance, and monitoring of any site contaminated
with:
(a) Hazardous wastes;
(b) "Hazardous substances" as defined in the Com-
prehensive Environmental Response, Compensation,
and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat.
2767; or
(c) Except as otherwise provided for in ss. 376.3071
and 376.3073:
1. A pollutant;
2. A substance which is or is suspected to be carci-
nogenic, mutagenic, teratogenic, or toxic to human
beings, or acutely toxic to indigenous species of signifi-
cance to the biological community affected by the haz-
ardous waste or substance; or
3. A substance which poses a serious danger to the
public health, safety, or welfare.
(3) The trust fund shall be funded as follows:
(a) An annual transfer of interest funds from the Flor-
ida Coastal Protection Trust Fund pursuant to 's.
376.11(4)(f).
(b) A monthly transfer of the interest from the State
Water Pollution Control Trust Fund.
(c) All excise taxes levied, collected, and credited to
the Water Quality Assurance Trust Fund in accordance
with the provisions of ss. 206.9935(2) and
206.9945(1)(b).
(d) All penalties, judgments, recoveries, reimburse-
ments, and other fees and charges credited to the
Water Quality Assurance Trust Fund in accordance with
the provisions of subsection (4).
*{e) The fee on the retail sale of lead-acid batteries
•credited to the Water Quality Assurance Trust Fund pur-
suant to s. 403.7185.
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
such subdivision or development received its develop-
ment order after January 1, 1989.
2. Subsidies to persons developing new water sup-
ply systems to be permitted and constructed after Janu-
ary 1,1989, in accordance with standards adopted pur-
suant to s. 373.309 because of actual or potential con-
tamination of potable water wells, provided that no such
subsidy shall exceed one-half of the present worth of
the 10-year cost of providing and maintaining filters for
the residents to be served by said system.
3. The most cost-effective remedy, as determined
by the department, for wells drilled prior to January 1,
1989.
(5) Except as otherwise provided by law, the depart-
ment shall recover to the use of the fund from a person
or persons at any time causing or having caused the dis-
charge or from the Federal Government, jointly and sev-
erally, all sums owed or expended from the fund, pursu-
ant to s. 376.308, except that the department may
decline to pursue such recovery if it finds the amount
involved too small or the likelihood of recovery too uncer-
tain. Sums recovered as a result of damage due to a dis-
charge of a pollutant or other similar disaster shall be
apportioned between the fund and the General Revenue
Fund so as to repay the full costs to the General Reve-
nue Fund of any sums disbursed therefrom as a result
of such disaster. Any request for reimbursement to the
fund for such costs, if not paid within 30 days of
demand, shall be turned over to the department for col-
lection.
(6) Moneys in the fund which are not needed cur-
rently to meet the obligations of the department in the
exercise of its responsibilities under ss. 376.30-376.319
shall be deposited with the Treasurer to the credit of the
fund and may be invested in such manner as is provided
for by statute. The interest received on such investment
shall be credited to the fund. Any provisions of law to the
contrary notwithstanding, such interest may be freely
transferred between this trust fund and the Inland Pro-
tection Trust Fund, in the discretion of the department.
(7) Except as otherwise provided by law, it is the
duty of the department in administering the fund dili-
gently to pursue the reimbursement to the fund of any
sum expended from the fund for cleanup and abatement
in accordance with the provisions of this section, unless
the department finds the amount involved too small or
the likelihood of recovery too uncertain. For the pur-
poses of s. 95.11, the limitation period within which to
institute an action to recover such sums shall com-
mence on the last date on which any such sums were
expended, and not the date that the discharge occurred.
Mitory.—8. 84, ch. 83-310:8.3. eh. 83-353: s. 10. eh. 84-338: «s. 3,14.34, ch.
86-159: s. 82, ch. 89-163: ». 4, ch. 88-393: a. 9, ch. 8^-171: s. 72, ch. 90-331; s.
14. ch. 91-305.
'Not®.—Substituted by the editors for a reference to s. 376.11(5X0) to conform to
the renumbering necessitated by ss. 3.8, and 34, ch. 06-159.
•Note.—Section 14, ch. 89-171, provides that ^t)he Executive Director of the
Deportment of Revenue r$ hereby authorized to adopt emergency rules pursuant to
a. 12054(9). Florida Statutes, for purposes of rnptomenting the applicable provisions
of this act Rules of the Department of Revenue related to and in furtherance of the
orderly implementation of the applicable provisions of this act shall not be subject
to s. 120-54(17), Florida Statutes, drawout prooeedtng, but, once adopted. shafl be
subject to s. 120.56, Florida Statutes, invalidity challenge. Such rules shall be
adopted by the Governor and Cabinet and shaB become effective upon filing with
the Department of State, notwithstanding the provisions of s. 120.54(13), Florida
Statutes.'
376.3071 Inland Protection Trust Fund; creation;
purposes; funding.—
(1) FINDINGS.—In addition to the legislative findings
set forth in s. 376.30, the Legislature finds and declares:
(a) That significant quantities of petroleum and
petroleum products are being stored in underground
storage systems in this state, which storage is a hazard-
ous undertaking;
(b) That spills, leaks, and other discharges from
such storage systems have occurred, are occurring, and
will continue to occur and that such discharges pose a
significant threat to the quality of the groundwaters arid
inland surface waters of this state; '
(c) That, where contamination of the ground or sur-
face water has occurred, remedial measures have often
been delayed for long periods while determinations as
to liability and the extent of liability are made and that
such delays result in the continuation and intensification
of the threat to the public health, safety, and welfare; in
greater damage to the environment; and in significantly
higher costs to contain and remove the contamination;
and
(d) That adequate financial resources must be read-
ily available to provide for the expeditious supply of safe
and reliable alternative sources of potable water to
affected persons and to provide a means for investiga-
tion and cleanup of contamination sites without delay.
(2) INTENT AND PURPOSE.—It is the intent of the
Legislature to establish the Inland Protection Trust Fund
to serve as a repository for funds which will enable the
department to respond without delay to incidents of
inland contamination related to the storage of petroleum
and petroleum products in order to protect the public
health, safety, and welfare and to minimize environmen-
tal damage.
(3) CREATION.—There is hereby created the Inland
Protection Trust Fund, hereinafter referred to as the
"fund," to be administered by the department. This fund
shall be used by the department as a nonlapsing revolv-
ing fund for carrying out the purposes of this section and
s. 376.3073. To this fund shall be credited all penalties,
judgments, recoveries, reimbursements, loans, and
other fees and charges related to the implementation of
this section and s. 376.3073 and the excise tax revenues
levied, collected, and credited pursuant to ss.
206.9935(3) and 206.9945(1 He). Charges against the
fund shall be made in accordance with the provisions of
this section.
(4) USES.—Whenever, in its determination, inci-
dents of inland contamination related to the storage of
petroleum or petroleum products may pose a threat to
the environment or the public health, safety, or welfare,
the department shall obligate moneys available in the
fund to provide for:
(a) Prompt investigation and assessment of contam-
ination sites;
(b) Expeditious restoration or replacement of pota-
ble water supplies as provided in s. 376.30(3)(c)1.;
(c) Rehabilitation of contamination sites, which shall
consist of cleanup of affected soil, groundwater, and
inland surface waters, using the most cost-effective
alternative that is technologically feasible and reliable
and that provides adequate protection of the public
19
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
health, safety, and welfare and minimizes environmental
damage, in accordance with the site selection and
cleanup criteria established by the department under
subsection (5), except that nothing herein shall be con-
strued to authorize the department to obligate funds for
payment of costs which may be associated with, but ere
not integral to, site rehabilitation, 6uch as the cost for
retrofitting or replacing petroleum storage systems;
(d) Maintenance and monitoring of contamination
sites;
(e) Inspection and supervision of activities
described in this subsection;
(f) Payment of expenses incurred by the depart-
ment in its efforts to obtain from responsible parties the
payment or recovery of reasonable costs resulting from
the activities described in this subsection;
(g) Payment of any other reasonable costs of admin-
istration, including those administrative costs incurred
by the Department of Health and Rehabilitative Services
in providing field and laboratory services, toxicological
risk assessment, and other assistance to the depart-
ment in the investigation of drinking water contamination
complaints;
(h) Establishment of the compliance verification pro-
gram as authorized in s. 376.303(1 Xa) to minimize the
potential for further contamination sites;
(i) Funding of the provisions of ss. 376.305(7) and
376.3072; and
0) Activities related to removal and replacement of
petroleum storage systems, exclusive of costs of any
tank, piping, dispensing unit, or related hardware; and
activities related to reimbursement application examina-
tion by a certified public accountant. Moneys may only
be made available for these activities for sites at which
site rehabilitation program tasks are being completed
pursuant to subsection (12).
(k) The Inland Protection Trust Fund may only be
used to fund the activities in ss. 376.30-376.319.
Nothing in this subsection shall authorize the use of the
Inland Protection Trust Fund for cleanup of contamina-
tion caused primarily by a discharge of solvents as
defined in s. 206.9925(6), except solvent contamination
which is the result of chemical or physical breakdown of
petroleum products and is otherwise eligible. Facilities
used primarily for the storage of motor or special fuels
as defined in ss. 206.01(13) and 206.86(1) shall be pre-
sumed not to be excluded from eligibility pursuant to
this section.
(5) SITE SELECTION AND CLEANUP CRITERIA.—
(a) The department shall establish criteria by rule for
the purpose of prioritizing contamination sites based
upon factors that include, but need not be limited to:
1. The degree to which human health, safety, or
welfare may be affected by exposure to the contamina-
tion;
2. The size of the population or area affected by the
contamination;
3. The present and future uses of the affected aqui-
fer or surface waters, with particular consideration as to
the probability that the contamination is substantially
affecting, or will migrate to and substantially affect, a
known public or private source of potable water;
4. The effect of the contamination on the environ-
ment; and
5. The amount of contamination cleanup tasks that
an owner or operator will complete.
Moneys tn the fund shall then be obligated for activities
described in paragraphs (4XaHe) at individual sites in
accordance with such established criteria. However,
nothing in this paragraph shall be construed to restrict
the department from modifying the priority status of a
rehabilitation site where conditions warrant.
(b) The secretary shall establish criteria by rule for
the purpose of determining, on a case-by-case basis,
the rehabilitation program tasks that comprise a site
rehabilitation program for which reimbursement may be
made in accordance with subsection (12) and the level
at which a rehabilitation program task and a site rehabili-
tation program may be deemed completed, whether
such site rehabilitation program tasks are to be per-
formed by the department or by a person through his
own personnel or through responsible response action
contractors or subcontractors. Any person who under-
takes a site rehabilitation program for a site which is eli-
gible and qualified for reimbursement pursuant to sub-
section (12) may conduct one or more site rehabilitation
program tasks; however, except as provided in subsec-
tion (12), any program task initiated must be completed
to be eligible for reimbursement for such task. Criteria
for determining completion of site rehabilitation program
tasks and site rehabilitation programs shall be based
upon the factors set forth in paragraph (a) and the fol-
lowing additional factors:
1. Individual site characteristics, including natural
rehabilitation processes.
2. Applicable state water quality standards.
3. Whether deviation from state water quality stand-
ards or from established criteria is appropriate, based
upon the degree to which the desired cleanup level is
achievable and can be reasonably and cost-effectively
implemented within available technologies or control
strategies, except that, where a state water quality stan-
dard is applicable, such deviation may not result in the
application of standards more stringent than said stan-
dard.
However, nothing in this paragraph shall be construed
to restrict the department from temporarily postponing
completion of any site rehabilitation program for which
funds are being expended whenever such postpone-
ment is deemed necessary in order to make funds avail-
able for rehabilitation of a contamination site with a
higher priority status.
(6) FUNDING.—The Inland Protection Trust Fund
shall be funded as follows:
(a) All excise taxes levied, collected, and credited to
the fund in accordance with the provisions of ss.
206.9935(3) and 206.9945(1)(c).
(b) All penalties, judgments, recoveries, reimburse-
ments. and other fees and charges credited to the fund
in accordance with the provisions of subsection (3).
(c) A loan of $5 million from the Florida Coastal Pro-
tection Trust Fund pursuant to s. 376.11(4)(e). This loan
shall not be subject to the General Revenue Fund
deduction authorized in s. 215.20.
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
(7) DEPARTMENTAL DUTY TO SEEK RECOVERY
AND REIMBURSEMENT.—
(a) Except as provided in subsection (9) and as oth-
erwise provided by law, the department shall recover to
the use of the fund from a person or persons at any time
causing or having caused the discharge or from the Fed-
era' Government, jointly and severally, all sums owed or
expended from the fund, pursuant to s. 376.308, except
that the department may decline to pursue such recov-
ery if it finds the amount involved too small or the likeli-
hood of recovery too uncertain. Sums recovered as a
result of damage due to a discharge related to the stor-
age of petroleum or petroleum products or other similar
disaster shall be apportioned between the fund and the
General Revenue Fund so as to repay the full costs to
the General Revenue Fund of any sums disbursed there-
from as a result of such disaster. Any request for reim-
bursement to the fund for such costs, if not paid within
30 days of demand, shall be turned over to the depart-
ment for collection.
(b) Except as provided in subsection (9) and as oth-
erwise provided by law, it is the duty of the department
in administering the fund diligently to pursue the reim-
bursement to the fund of any sum expended from the
fund for cleanup and abatement in accordance with the
provisions of this section or s. 376.3073, unless the
department finds the amount involved too small or the
likelihood of recovery too uncertain. For the purposes of
s. 95.11, the limitation period within which to institute an
action to recover such sums shall commence on the last
date on which any such sums were expended, and not
the date that the discharge occurred.
(c) If the department initiates an enforcement action
to clean up a contaminated site and determines that the
responsible party is financially unable to undertake com-
plete restoration of the contaminated site, that the cur-
rent property owner was not responsible for the dis-
charge when the contamination first occurred, or that
the state's interest can best be served by the responsi-
ble party conducting cleanup, the department may
enter into an agreement with the responsible party or
property owner whereby the department agrees to reim-
burse the cleanup cost or a portion of the cleanup cost.
Ttie reimbursement request shall be processed pursu-
ant to the provisions of subsection (12). However, the
department shall be obligated to reimburse only such
cleanup or portion of the cleanup as the parties have
agreed is beyond the financial capability of the responsi-
ble party or property owner, taking into consideration
the party's net worth and the economic impact on the
party.
(8) INVESTMENTS; INTEREST.—Moneys in the fund
which are not needed currently to meet the obligations
of the department in the exercise of its responsibilities
under this section and s. 376.3073 shall be deposited
with the Treasurer to the credit of the fund and may be
invested in such manner as is provided for by statute.
The interest received on such investment shall be cred-
ited to the fund. Any provisions of law to the contrary
notwithstanding, such interest may be freely transferred
between this trust fund and the Water Quality Assur-
ance Trust Fund, in the discretion of the department.
(9) EARLY DETECTION INCENTIVE PROGRAM.—
To encourage early detection, reporting, and cleanup of
contamination from leaking petroleum storage systems,
the department shall, within the guidelines established
in this subsection, conduct an incentive program which
shall provide for a 30-month grace period ending on
December 31, 1988. Pursuant thereto:
(a) The department shall establish reasonable
requirements for the written reporting of petroleum con-
tamination incidents and shall distribute forms to regis-
trants under s. 376.303(1 Xb) and to other interested par-
ties upon request to be used for such purpose. Until
such forms are available for distribution, the department
shall take reports of such incidents, however made, but
shall notify any person making such a report that a com-
plete written report of the incident will be required by the
department at a later time, the form for which will be pro-
vided by the department.
(b) When reporting forms become available for dis-
tribution, all sites involving incidents of contamination
from petroleum storage systems initially reported to the
department at any time from midnight on June 30,1986,
to midnight on December 31, 1988, shall be qualified
sites, provided that such a complete written report is
filed with respect thereto within a reasonable time. Sub-
ject to the delays which may occur as a result of the pri-
oritization of sites under paragraph (5Xa) for any quali-
fied site, costs for activities described in paragraphs
(4)(aHe) shall be absorbed at the expense of the fund,
without recourse to reimbursement or recovery, with the
following exceptions:
1. The provisions of this subsection shall not apply
to any site where the department has been denied site
access to implement the provisions of this section.
2. The provisions of this subsection shall not be
construed to authorize or require reimbursement from
the fund for costs expended prior to the beginning of the
grace period, except as provided in subsection (12).
3.a. Upon discovery by the department that the
owner or operator of a petroleum storage system has
been grossly negligent in the maintenance of such
petroleum storage system; has, with willful intent to con-
ceal the existence of a serious discharge, falsified inven-
tory or reconciliation records maintained with respect to
the site at which such system is located; or has inten-
tionally damaged such petroleum storage system, the
site at which such system is located shall be ineligible
for participation in the incentive program and the owner
shall be liable for all costs due to discharges from petro-
leum storage systems at that site, any other provisions
of chapter 86-159, Laws of Florida, to the contrary not-
withstanding. For the purposes of this paragraph, willful
failure to maintain inventory and reconciliation records,
willful failure to make monthly monitoring system checks
where such systems are in place, and failure to meet
monitoring and retrofitting requirements within the
schedules established under chapter 17-61, Florida
Administrative Code, or violation of similar rules adopted
by the Department of Natural Resources under this
chapter, shall be construed to be gross negligence in
the maintenance of a petroleum storage system.
b. The department shall redetermine the eligibility
of petroleum storage systems for which a timely EDI
21
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
application was filed, but which were deemed ineligible
by the department, under the following conditions:
(I) The owner or operator, on or before March 31,
1991, shall submit, in writing, notification that the stor-
age system is now in compliance with department rules
adopted pursuant to s. 376.303, and which requests the
department to reevaluate the storage system eligibility;
and
(II) The department verifies the storage system
compliance based on a compliance inspection.
Provided, however, that a site may be determined eligi-
ble by the department for good cause shown, including,
but not limited to, demonstration by the owner or opera-
tor that to achieve compliance would cause an increase
in the potential for the spread of the contamination.
c. Redetermination of eligibility pursuant to sub-
subparagraph b. shall not be available to:
(I) Petroleum storage systems owned or operated
by the Federal Government.
(II) Facilities that denied site access to the depart-
ment.
(III) Facilities where a discharge was intentionally
concealed.
(IV) Facilities that were denied eligibility due to:
(A) Absence of contamination, unless any such facil-
ity subsequently establishes that contamination did
exist at that facility on or before December 31,1988.
(B) Contamination from substances that were not
petroleum or a petroleum product.
(C) Contamination that was not from a petroleum
storage system.
d. EDI applicants who demonstrate compliance for
a site pursuant to sub-subparagraph b. are eligible for
the Early Detection Incentive Program and the Reim-
bursement Program. Unless the responsible person cer-
tifies to the department in writing that he qualifies as a
small business under s. 288.703(1), the eligible applicant
shall initiate and complete site rehabilitation and seek
reimbursement pursuant to subsection (12). The
requirements of this sub-subparagraph shall not apply
if the responsible person can demonstrate to the depart-
ment an economic hardship due to the number of sites
or the lack of revenue or credit. In such a situation, the
department may approve a plan that will require the
responsible person to complete some or all of the tasks
for the applicable sites. The plan shall include which
tasks and sites shall be required to seek reimbursement
pursuant to the provisions of subsection (12) and which
tasks and sites shall be subject to the provisions of this
subsection.
If, in order to avoid prolonged delay, the department in
its discretion deems it necessary to expend sums from
the fund to cover ineligible sites or costs as set forth in
this paragraph, the department may do so and seek
recovery and reimbursement therefor in the same man-
ner and in accordance with the same procedures as are
established for recovery and reimbursement of sums
otherwise owed to or expended from the fund.
(c) No report of a discharge made to the department
by any person in accordance with this subsection, or
any rules promulgated pursuant hereto, shall be used
directly as evidence of liability for such discharge in any
oivil or criminal trial arising out of the discharge.
(d) The provisions of this subsection shall not apply
to petroleum storage systems owned or operated by the
Federal Government.
(10) VIOLATIONS; PENALTY.—It is unlawful for any
person to:
(a) Falsify inventory or reconciliation records main-
tained in compliance with chapter 17-61, Florida Admin-
istrative Code, with willful intent to conceal the existence
of a serious leak; or
(b) Intentionally damage a petroleum storage sys-
tem.
Any person convicted of such a violation shall be guilty
of a felony of the third degree, punishable as provided
in s. 775.082, s. 775.083, or s. 775.084.
(11) VOLUNTARY CLEANUP.—Nothing in chapter
86-159, Laws of Florida, shall be deemed to prohibit a
person from conducting site rehabilitation either through
his own personnel or through responsible response
action contractors or subcontractors.
(12) REIMBURSEMENT FOR CLEANUP EXPENSES.
(a) Legislative findings.—The Legislature finds and
declares that, in order to provide for rehabilitation of as
many contamination sites as possible, as soon as possi-
ble, voluntary rehabilitation of contamination sites
should be encouraged, provided that such rehabilitation
is conducted in a manner and to a level of completion
which will protect the public health, safety, and welfare
and will minimize damage to the environment.
(b) Entitlement; conditions.—To accomplish this
purpose, for sites initially reported on or prior to midnight
on December 31,1988, any person conducting site reha-
bilitation under this subsection, either through his own
personnel or through responsible response action con-
tractors or subcontractors, shall be entitled to reim-
bursement from the fund at reasonable rates for allow-
able costs incurred on or after January 1,1985, in con-
nection with such site rehabilitation, subject to the fol-
lowing conditions:
1. Nothing in this subsection shall be construed to
authorize reimbursement of any person or for any site
excluded from participation in the Early Detection Incen-
tive Program under subparagraph 1. or subparagraph 3.
of paragraph (9)(b) or paragraph (9)(d).
2. The provisions of this subsection shall not apply
to any site initially reported prior to July 1,1986, where
the department has initiated an administrative or civil
enforcement action with respect to such site, unless the
responsible party has, prior to July 1,1986, undertaken,
and made a reasonable effort to carry out, one or more
of the following remedial actions at the site:
a. Product recovery;
b. Groundwater restoration; or
c. Soil removal.
3. Reimbursement under this subsection shall not
be considered a state contract and shall not be subject
to the provisions of chapter 287.
4. Site rehabilitation shali be completed in accord-
ance with cleanup criteria established by the depart-
ment pursuant to paragraph (5)(b).
5. Procedural requirements of this subsection shall
have been met.
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
(c) Legislative intent.—It is the intent of the Legisla-
ture that those responsible persons who possess ade-
quate financial ability should conduct site rehabilitation
and seek reimbursement pursuant to this subsection,
rather than allow the state to conduct the cleanup pursu-
ant to subsection (9). To encourage participation in the
reimbursement program in lieu of state cleanup and to
facilitate the reimbursement of costs and expenses to
eligible participants under this subsection, the depart-
ment may establish an incentive program which would
allow at its discretion:
1. Reimbursement of actual and reasonable costs
for site rehabilitation;
2. Reimbursement of interest costs incurred by the
responsible party as a result of that party's conducting
site rehabilitation in lieu of state cleanup, at an interest
rate not to exceed 1 percent per month. If the depart-
ment fails to meet the applicable review and payment
schedules established by statute or rule, the time for
which interest is paid by the department shall be
extended beyond the applicable review and schedules;
3. Partial payments upon the receipt of a reim-
bursement request; and
4. The provision of those additional incentives that
the department finds will increase private sector partici-
pation in the reimbursement program and encourage
sites eligible for state rehabilitation to convert to volun-
tary rehabilitation with reimbursement under this sub-
section.
Due to the value of Florida's potable water, it is the intent
of the Legislature that the department initiate and facili-
tate as many cleanups as possible utilizing the
resources of the state, local governments, and the pri-
vate sector. The department is authorized to adopt nec-
essary rules to carry out the intent of this subsection.
The department shall report to the Speaker of the House
of Representatives, the President of the Senate, and the
Governor on the effectiveness of the reimbursement
and incentive program by January 1, 1993.
(d) Procedure to initiate and conduct site rehabilita-
tion.—Any person initiating site rehabilitation pursuant
to this section between January 1,1985, and December
31, 1988, who intends to file for reimbursement shall
submit written notice of such intent to the department
prior to midnight on December 31, 1988, together with
documentation of site conditions prior to initiation of
cleanup. Within 60 days after receipt of such notice and
sufficient documentation of site conditions prior to initia-
tion of cleanup, the department shall determine whether
the person is ineligible to apply for reimbursement under
subparagraph (b)1. or subparagraph (b)2. and shall
notify the applicant as to his eligibility in writing.
(e) Records.—The person responsible for conduct-
ing site rehabilitation, or his agent, shall keep and pre-
serve suitable records of hydrological and other site
investigations and assessments; site rehabilitation
plans; contracts and contract negotiations; and
accounts, invoices, sales tickets, or other payment rec-
ords from purchases, sales, leases, or other transactions
involving costs actually incurred related to site rehabili-
tation. Such records shall be made available upon
request to agents and employees of the department
during regular business hours and at other times upon
written request of the department. In addition, the
department may from time to time request submission
of such site-specific information as it may require. All
records of costs actually incurred for cleanup shall be
certified by affidavit to the department as being true and
correct.
(f) Application for reimbursement.—Any eligible
person who performs a site rehabilitation program or
performs site rehabilitation program tasks such as prep-
aration of site rehabilitation plans or assessments; prod-
uct recovery; cleanup of groundwater or inland surface
water; soil treatment or removal; or any other tasks iden-
tified by department rule developed pursuant to para-
graph (5)(b), may apply for reimbursement. Such appli-
cations for reimbursement must be submitted to the
department on forms provided by the department,
together with evidence documenting that site rehabilita-
tion program tasks were conducted or completed in
accordance with department rule developed pursuant
to paragraph (5)(b), and other such records or informa-
tion as the department requires. The reimbursement
application and supporting documentation shall be
examined by a certified public accountant in accord-
ance with standards established by the American Insti-
tute of Certified Public Accountants. A copy of the
accountant's report shall be submitted with the reim-
bursement application. Applications for reimbursement
may not be approved for site rehabilitation program
tasks which have not been completed, except for the
task of remedial action. Applications for reimbursement
for the task of remedial action may be authorized by the
department not less than quarterly. However, the
department shall not require an application for reim-
bursement for the task of remedial action to be submit-
ted less than annually.
(g) Review.—
1. Provided there are sufficient unencumbered
funds available in the Inland Protection Trust Fund, the
department shall have 60 days to determine if the appli-
cant has provided sufficient information for processing
the application and shall request submission of any
additional information that the department may require
within such 60-cfay period.
2. The department shall deny or approve the appli-
cation for reimbursement within 90 days after receipt of
the last item of timely requested additional material, or,
if no additional material is requested, within 90 days of
the close of the 60*-day period described in subpara-
graph 1„ unless the total review period is otherwise
extended by written mutual agreement of the applicant
and the department.
3. Final disposition of an application shall be pro-
vided to the applicant in writing, accompanied by a writ-
ten explanation setting forth in detail the reason or rea-
sons for the approval or denial. If the department fails to
make a determination on an application within the time
provided in subparagraph 2., or denies an application,
or if a dispute otherwise arises with regard to reimburse-
ment, the applicant may request a hearing pursuant to
s. 120.57.
(h) Schedule for reimbursement. —Upon approval of
an application for reimbursement, reimbursement for
23
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
reasonable expenditures of a site rehabilitation program
or site rehabilitation program tasks documented therein
shall be due and payable within 90 days of approval of
the application, provided there are sufficient unencum-
bered funds available in the Inland Protection Trust
Fund. Payment shall be made in the order in which the
department receives completed applications. Reim-
bursement payment for a site rehabilitation program or
program tasks shall be made for activities completed in
accordance with department rule developed pursuant
to paragraph (5Kb), except that a person who under-
takes the program task of remedial action and is working
toward meeting the applicable remedial criteria for com-
pletion shall be allowed to receive, upon request, interim
reimbursement annually while the remedial action is tak-
ing place.
(i) Liberal construction.—With respect to site reha-
bilitation initiated prior to July 1,1986, the provisions of
this subsection shall be given such liberal construction
by the department as will accomplish the purposes set
forth in this subsection. With regard to the keeping of
particular records or the giving of certain notice, the
department may accept as compliance action by a per-
son which meets the intent of the requirements set forth
in this subsection.
'(13) FINANCIAL AND TECHNICAL ADVISORY COM-
MITTEE.—
(a) Creation; duties.—There is created the Financial
and Technical Advisory Committee, hereinafter referred
to as the "committeeto review, at its discretion or upon
request of the secretary, site rehabilitation projects or
water restoration or replacement projects which the
department, a local government, or any other person
undertakes pursuant to the provisions of this section for
the purpose of providing the department with construc-
tive comments relating to technical and accounting pro-
cedures which may be employed and for the purpose of
keeping the department abreast of the latest available
technologies and potential improvements in manage-
ment and cost control practices. In addition, the commit-
tee shall advise the department, any local government
undertaking a project under contract with the depart-
ment pursuant to s. 376.3073, or any other person
undertaking site rehabilitation under subsection (12)
with respect to any site rehabilitation project or water
restoration or replacement project which the depart-
ment, local government, or other person, as appropriate,
reasonably anticipates will involve expenditures or
actions which may obligate the fund in excess of
$500,000 for that one project, exclusive of related inves-
tigation and assessment costs.
(b) Membership.—The committee shall be com-
posed of nine persons to be appointed by the Governor,
as follows:
1. One hydrologist;
2. One hydrogeologist;
3. One toxicologist;
4. One community water supply expert;
5. One response action contractor;
6. One certified public accountant;
7. One person representing petroleum refiners;
8. One person representing petroleum marketers;
and
9. One person representing the public's environ-
mental interests.
No person who is a public official or public employee,
other than a member of the teaching or research faculty
or other person holding an administrative or professional
position within the State University System, 6hall be eli-
gible for appointment under this paragraph.
(c) Organization and terms; expenses; meetings.—
1. All members of the committee shall serve for
2-year terms, except that, in order to achieve staggered
terms, two of the members appointed under subpara-
graphs (b)1.-5. and two of the members appointed
under subparagraphs (b)6.-9. shall be initially appointed
for 1-year terms.
2. A vacancy shall be filled for the remainder of the
unexpired term by appointment in the same manner as
provided for an original appointment.
3. The Governor shall designate one member of the
committee to serve as chairman.
4. Members of the committee shall serve without
compensation, but shall be entitled to travel and per
diem expenses pursuant to s. 112.061.
5. The committee shall meet on a regular basis, at
the call of the chairman.
(d) Departmental support.—The department shall
supply such information, assistance, and facilities as are
deemed necessary for the committee to carry out its
duties under this subsection and shall provide two staff
members for the performance of required clerical and
administrative functions of the committee. Departmental
costs to comply with the provisions of this paragraph
shall be considered administrative costs to be paid by
the fund, except that no more than $75,000 per year may
be charged to the fund to cover these costs.
(e) Review of certain projects required.—
1. Whenever the department, a local government
acting pursuant to a contract with the department under
s. 376.3073, or other person undertaking a site rehabili-
tation under subsection (12), after conducting an investi-
gation and assessment, has a reasonable expectation
that a site rehabilitation project or water restoration or
replacement project undertaken thereby will involve
expenditures or actions which may require obligation of
funds in excess of $500,000, exclusive of investigation
and assessment costs, the department, local govern-
ment, or other person shall submit to the committee a
request for review of the project, together with docu-
mentation of past and proposed expenditures and a pro-
posed plan of action relative to such project, other than
documentation of expenditures relating to investigation
and assessment. Copies of such request, together with
all associated documentation, shall be transmitted forth-
with to every member of the committee.
2. Within a reasonable time after receipt of a
request for review, the committee shall meet at the call
of the chairman for the purpose of reviewing the project.
Such review shall address, but need not be limited to,
the financial and technical feasibility of the proposed
plan of action and its anticipated costs and whether
other, more cost-effective alternatives are available
which would protect the public health, safety, and wel-
fare and minimize damage to the environment.
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
3. The committee shall report its findings and rec-
ommendations to the secretary, and to the local govern-
ment in the case of a project undertaken pursuant to a
contract with the department under s. 376.3073 or to the
other person conducting a site rehabilitation project pur-
suant to subsection (12), which findings and recommen-
dations shall be constructive in nature and shall be lim-
ited to the financial and technical feasibility of the pro-
posed plan and its anticipated costs and whether other,
more cost-effective alternatives are available which
would protect the public health, safety, and welfare and
minimize damage to the environment. Such findings and
recommendations shall be advisory only and shall not be
binding upon any party.
(0 Subsequent review.—With respect to any project
which was previously reported to and reviewed by the
committee as provided in paragraph (e), whenever it
appears that costs, exclusive of investigation and
assessment costs, for such project will exceed 150 per-
cent of the costs originally anticipated and reported to
the committee, or that a significant change in the plan
of action for such project is called for, the department,
local government, or other person, as appropriate, shall
report the proposed additional expenditures or pro-
posed change to the committee, and the committee
may, in its discretion, review same as provided in sub-
paragraphs (e)2. and 3.
(g) Construction.—Nothing in this subsection shall
be construed to restrict the department, a local govern-
ment acting pursuant to a contract with the department
under s. 376.3073, or other person undertaking site
rehabilitation pursuant to subsection (12) from making
expenditures or taking those actions deemed necessary
to protect the public health, safety, or welfare or to mini-
mize damage to the environment. The department or
local government may submit to the committee for its
review documentation regarding such expenditures or
actions after the fact.
Hlitory.—»s. 15. 16. ch. 86-159: s. 3. ch. 87-374; s. 2, ch. 88-331; s. 4. c»i.
89-188; s. 10, ch. 90-98; 8. 81. eh. 90-132; «. 15. ch. 91-305.
'Note.^Expires October 1,1995. pursuant to 8.16. ch. 86-159. and is scheduled
for review pursuant to s. 11 .611.
1376.3072 Florida Petroleum Liability Insurance and
Restoration Program.—
(1) PROGRAM OF INSURANCE—There is hereby
created the Florida Petroleum Liability Insurance and
Restoration Program to be administered by the Depart-
ment of Environmental Regulation. The department shall
establish the Florida Liability Insurance and Restoration
Program on or before January 1,1989. Department rules
shaJI provide that the restoration program is retroactive
to January 1, 1989, for qualified sites that apply for the
program before September 1, 1989. The program must
provide third-party liability insurance to qualified partici-
pants for incidents of inland contamination related to the
storage of petroleum products regulated by department
rules pertaining to storage tanks adopted pursuant to s.
376.303, and must provide restoration for eligible sites
in the liability insurance program or for sites which are
eligible for self-insurance under the provisions of this
section. The program may not participate in the Florida
Insurance Guaranty Association. Chapter 624 does not
apply to the program. The program shall not be prohib-
ited from recovering indemnities and expenses which
are covered by the Florida Insurance Guaranty Associa-
tion pursuant to coverage purchased by the program
from a participating insurer.
(2) SCOPE AND TYPE OF COVERAGE.—The Flor-
ida Petroleum Liability Insurance and Restoration Pro-
gram must provide up to $1 million of liability insurance
for each incident of inland contamination related to the
storage of petroleum products. A site upon which a dis-
charge was discovered prior to January 1, 1989, shall
not be eligible to participate in the third-party insurance
program until such time as the site shall be restored as
required by the department or until the department
determines that the site does not require restoration or
the department's insurance carrier agrees to assume
the risk for a new incident at the site. The third-party lia-
bility program shall provide up to $1 million per incident
with an annual aggregate of $1 million of third-party lia-
bility insurance for owners or operators who have 100 or
fewer petroleum storage tanks, and the program shall
provide up to $1 million per incident of third-party liabil-
ity insurance coverage with an annual aggregate of $2
million of liability insurance for owners or operators who
have more than 100 storage tanks. The department may
provide storage tank owners or operators who do not
market petroleum products and whose output of petro-
leum products is less than 10,000 gallons per month
with reduced third-party liability insurance of $500,000
per incident with an annual aggregate of $1 million for
owners and operators with less than 100 tanks and $2
million for owners and operators with more than 100
tanks. The program shall have a deductible of $500 per
incident and may offer higher deductibles for third-party
insurance to be paid by the insured for the first two pre-
mium years. The department shall adopt a deductible
schedule for the remainder of the program that shall not
exceed $100,000 per year to be paid by the insured. The
department shall issue policies to eligible owners and
operators. The policies shall be in compliance with the
federal underground storage tank financial responsibil-
ity requirement contained in 40 C.F.R. 280.97. In order
to implement the restoration program, the department
may contract with an insurance company, a reinsurance
company, or an insurance consultant to issue policies,
to verify compliance with this section, to determine rea-
sonable rates for allowable costs, and to manage
response action contractors. The department must
approve any insurance company, self-insurance, or any
other mechanism used to achieve the third-party liabil-
ity insurance requirements of the Florida Petroleum Lia-
bility Insurance and Restoration Program. In order to be
approved by the department, an insurance company,
self-insurance or other mechanism must meet the mini-
mum criteria established by the Environmental Protec-
tion Agency for financial responsibility and, if required,
shall be registered or licensed by the Department of
Insurance. The purchase of the insurance services is not
subject to chapter 287. A site at which an incident has
occurred shall be eligible for restoration if the owner or
operator of the site is a participant in the third-party lia-
bility insurance program or meets the self-insurance
requirements of this section. A site which had a dis-
charge reported prior to January 1, 1989, for which
25
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
notice was given pursuant to s. 376.3071(9) or (12), and
which is ineligible for the third-party liability insurance
program solely due to that discharge shall be eligible for
participation in the restoration program for any incident
occurring on or after January 1,1989, provided the facil-
ity is in compliance with the rules of the department per-
taining to storage tanks adopted pursuant to s. 376.303,
and the owner or operator submits a completed affidavit
and all pertinent application forms for the program. A
site which had a discharge prior to January 1,1989, and
which is eligible for the third-party liability insurance
program is also eligible for participation in the restora-
tion program for any new incident occurring on or after
January 1,1989. Restoration funding for an eligible con-
taminated site will be provided without participation in
the third-party liability insurance program until the site
is restored as required by the department or until the
department determines that the site does not require
restoration. A site where a discharge was reported
between January 1,1989, and September 1,1989, and
which is in compliance with the rules of the department
pertaining to storage tanks adopted pursuant to s.
376.303, may participate in the restoration program for
said discharge with or without participation in the third-
party liability insurance program or self-insurance. The
cost of restoration shall be paid through the Inland Pro-
tection Trust Fund. In order for an eligible owner or oper-
ator to participate in the restoration program, the owner
or operator must, upon discovery of evidence of a dis-
charge of petroleum product at a facility, drain and
remove from service the suspected petroleum storage
system, if necessary, and complete initial remedial
action as defined by department rules. The cost of resto-
ration will be paid through the Inland Protection Trust
Fund. The restoration must be conducted using the
criteria and procedures established pursuant to s.
376.3071. However, unless the responsible person certi-
fies to the department in writing that he qualifies as a
small business under s. 288.703(1) or a corporation not
for profit under chapter 617, the eligible applicant shall
initiate and complete site rehabilitation and seek reim-
bursement pursuant to s. 376.3071(12). This require-
ment applies to all sites where a discharge occurs after
July 1,1991, and restoration coverage is requested. This
requirement does not apply if the responsible person
can demonstrate to the department an economic hard-
ship due to the number of sites or the lack of revenue
or credit. In such a situation, the department may
approve a plan that requires the responsible person to
complete some or all of the tasks for the applicable sites.
The plan must include which tasks and sites are
required to seek reimbursement pursuant to s.
376.3071(12) and which tasks and sites are subject to
this subsection. The Florida Petroleum Liability Insur-
ance and Restoration Program must provide up to $1
million of restoration for each incidence of inland con-
tamination related to the storage of petroleum products
regulated by department rules pertaining to storage
tanks adopted pursuant to s. 376.303. The restoration
program shall have an annual aggregate limit of $2 mil-
lion of restoration per facility. The restoration program
shall have a $500 deductible per incident until January
1,1991. The department shall adopt a deductible sched-
ule for the remainder of the restoration program that
shall not exceed $25,000 per year to be paid by the par-
ticipants in the restoration program. The $1 million
amount is a limitation and is meant to apply in the aggre-
gate for all restoration costs or third-party claims arising
from any one incident. For purposes of this section, the
term:
(a) "Restoration* means rehabilitation of contami-
nated sites both on and off the property of the owner or
operator of the petroleum storage system and shall con-
sist of investigation and assessment, cleanup of
affected soil, groundwater and surface water in accord-
ance with the site selection and cleanup criteria estab-
lished by the department pursuant to s. 376.3071(5),
and maintenance and monitoring of the contaminated
sites. The term 'restoration' also means the depart-
ment's expeditious rehabilitation or replacement of pota-
ble water supplies as provided in s. 376.30(3Xc)1. In the
event the department does not provide bottled water, or
a replacement water supply within 3 days, the owner,
operator, or their designee may provide bottled water to
an affected third party, and that cost shall be reimburs-
able. The term "restoration* does not mean cost which
may be associated with site rehabilitation such as the
cost of compliance with rules relating to stationary tanks
adopted pursuant to s. 376.303.
(b) "Third-party liability* means the insured's liabil-
ity, other than for restoration costs, for bodily injury or
property damage caused by an incident of inland con-
tamination related to the storage of petroleum product.
(c) "Incident" means the reporting of any sudden or
gradual discharge of petroleum product arising from
operating a storage system containing petroleum prod-
uct that results in a need for restoration or results in bod-
ily injury or property damage neither expected nor
intended by the petroleum storage system owner or
operator.
(d) "Petroleum products" means petroleum products
as defined by s. 376.301.
(3)(a) ELIGIBILITY FOR PARTICIPATION.—Any
owner or operator of a petroleum storage system, as
defined in s. 376.301, who is subject to and in substan-
tial compliance with this chapter and applicable rules
relating to petroleum storage systems or petroleum con-
tamination site cleanup adopted pursuant to s. 376.303
with respect to a particular location is eligible to partici-
pate in the Florida Petroleum Liability Insurance and
Restoration Program for that location. In order to partici-
pate in the insurance and restoration program, an owner
or operator must file an affidavit with the department,
which affidavit states that the owner or operator has
read and is familiar with this chapter and the rules relat-
ing to petroleum storage systems or petroleum contami-
nation site cleanup adopted pursuant to s. 376.303 and
that the facility is in compliance with this chapter and
applicable rules adopted pursuant to s. 376.303. The
owner or operator must file the affidavit upon enrollment
in the program and must file an affidavit each year upon
the scheduled date of payment of the annual registration
fee assessed pursuant to s. 376.303; or, upon the date
of installation of the facility or enrollment in the program
and each year thereafter, if the facility is a petroleum
storage system that is not subject to the registration fee.
-------
F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
The department may require an owner or operator to
submit documentation that is certified as true and cor-
rect to verify compliance with this section.
(b) The failure of any owner or operator of a storage
system containing petroleum products to maintain com-
pliance with this chapter and rules relating to stationary
tanks adopted pursuant to s. 376.303 at any location will
result in the cancellation of liability insurance provided
through the program and eligibility for the restoration
program for that location. Any owner or operator of a
facility that receives a notice of cancellation for the liabil-
ity insurance or restoration program that seeks reinstate-
ment for that facility shall pay a reinstatement inspection
fee of $200 per facility to be deposited in the Inland Pro-
tection Trust Fund. For purposes of this paragraph, the
department may, in its discretion, waive minor violations
of this chapter or of rules adopted pursuant to s.
376.303, including, without limitation, violations of provi-
sions relating to the form of inventory or reconciliation
records or violations of registration requirements, or
other violations if the owner or operator can demonstrate
that he is making a good faith effort to achieve and main-
tain compliance and has taken prompt action to correct
any violation, as required by the department.
(c) The following are not eligible to participate in the
restoration program or the liability insurance program:
1. Sites owned or operated by the Federal Govern-
ment;
2. The owner or operator of a facility where the
department has been denied site access.
(d) Any third-party claims relating to damages
caused by discharges discovered prior to January 1,
1989, or before coverage under a policy issued pursuant
to subsection (2) are not eligible under the liability insur-
ance program.
(e) Any incidents discovered prior to January 1,
1989, are not eligible to participate in the restoration pro-
gram. However, this exclusion shall not be construed to
prevent a new incident at the same location from partici-
pation in the restoration program if the owner or operator
is otherwise eligible. This exclusion shall not effect eligi-
bility for participation in the EDI program or the reim-
bursement program.
(f) A financial or lending institution that has loaned
money to a participant in the Florida Petroleum Liability
Insurance and Restoration Program (FPLIRP) or has
received an involuntary trust from a participant in the
program for the purpose of site rehabilitation shall have
the right to conduct cleanup of the site, if a foreclosure
of the loan on that property has occurred and if:
1. The owner or operator provided the lender with
proof that the facility is eligible for FPLIRP at the time of
the loan or before the discharge occurred; and
2. The lender completes site rehabilitation and
seeks reimbursement pursuant to s. 376.3071(12).
(4) PREMIUMS FOR PARTICIPATION.—
(a) The department, or, in the event the department
purchases insurance and management services for the
third-party liability insurance program, the contractor,
may collect premiums for funding the Petroleum Liability
Insurance Account of the Inland Protection Trust Fund
from the owner or operator of any petroleum storage
system participating in the program.
(b) The premium for each tank, for an owner or oper-
ator of a petroleum storage system at a location at which
the requirements of rules relating to stationary tanks
adopted pursuant to s. 376.303 have been fully imple-
mented and which is in compliance with all monitoring,
control, and reporting requirements, will be in an amount
determined by the department and approved by the
Department of Insurance.
(c) The premium for each tank, for an owner or oper-
ator at any location where the replacement or retrofit
requirements of chapter 17-61 of the Florida Administra-
tive Code are being met within the schedules estab-
lished therein and all monitoring and reporting require-
ments are being complied with to the satisfaction of the
department, will be in an amount determined by the
department and approved by the Department of Insur-
ance.
(d) The premium for each tahk, for an owner or oper-
ator of a storage tank having a storage capacity of 550
gallons or less who is required to register the tank pursu-
ant to s. 376.303, will be in an amount determined by the
department and approved by the Department of Insur-
ance if the owner or operator is in compliance with the
criteria established by the department for such tanks.
(e) The department may establish reduced premi-
ums as approved by the Department of Insurance for
owners or operators of storage tanks who operate many
facilities each of which are in compliance with this chap-
ter and the rules relating to stationary tanks adopted
pursuant to s. 376.303.
(f) The department may establish reduced premi-
ums as approved by the Department of Insurance for
owners or operators of storage tanks based upon the rel-
ative degree of effectiveness of the storage tanks for
protecting the environment.
(g) The department shall use the revenues derived
from collection of the excise tax imposed pursuant to s.
206.9935(3) and the revenues derived from collection of
the tank registration fees imposed pursuant to s.
376.303(1 Kb) in order to provide the restoration provided
under the Florida Petroleum Liability Insurance Program.
An owner or operator of a petroleum storage system
who elects to conduct site restoration is eligible for reim-
bursement at a reasonable rate for allowable expenses
in accordance with the rule relating to reimbursement
adopted pursuant to s. 376.303 and s. 376.3071. The
payment of reimbursement claims must be in accord-
ance with the rule relating to the priority of the payment
of reimbursement adopted pursuant to s. 376.3071(5).
(h) The department shall use the premiums charged
pursuant to this section and collected from the owners
or operators of petroleum storage systems in order to
provide, in an actuarially sound manner, pursuant to s.
627.062, the third-party liability insurance coverage
under the Florida Petroleum Liability Insurance Program
to assure that owners and operators who are in compli-
ance with state environmental requirements have the
opportunity to obtain petroleum liability insurance.
(i) If the department purchases insurance and man-
agement services for the third-party liability insurance
program pursuant to subsection (8), the premiums
charged pursuant to this section for third-party liability
27
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
insurance may, with the approval of the department, be
paid directly to the contractor.
(5) PARTICIPANT'S LIABILITY FOR THIRD-PARTY
LIABILITY INSURANCE COVERAGE.—
(a) The liability of each participant for the obligations
of the Florida Petroleum Liability Insurance Program
emanating from third-party liability shall be individual,
several, and proportionate, but not joint, except as pro-
vided in this section.
(b) Each policy issued by the Florida Petroleum Lia-
bility insurance Program shall contain a statement of the
contingent liability. Both the application for insurance
and the policy shall contain, in contrasting color and in
not less than 10-point type, the following statements:
This i6 a fully assessable policy. In the event the Florida
Petroleum Liability Insurance Program is unable to pay
its obligations, policyholders will be required to contrib-
ute on a pro rata earned premium basis the money nec-
essary to meet any unfilled obligations.'
(c) The Florida Petroleum Liability Insurance Pro-
gram may assess from time to time policyholders, cov-
ered for third-party liability, liable therefor under the
terms of their policies and pursuant to this section, or
the department may assess the policyholders in the
event of liquidation of the Florida Petroleum Liability
Insurance Program.
(d) Each policyholder's share of a deficiency for
which an assessment is made shall be computed by
applying to the premium earned on the participant's pol-
icy or policies during the period to be covered by the
assessment the ratio of the total deficiency to the total
premiums earned during such period upon all policies
subject to the assessment. In the event one or more poli-
cyholders fail to pay an assessment, the other policy-
holders are liable on a proportionate basis for an addi-
tional assessment. The Florida Petroleum Liability Insur-
ance Program, acting on behalf of all policyholders who
paid the additional assessment, shall institute legal
action when necessary and appropriate to recover the
assessment from policyholders who failed to pay it.
(e) In computing the earned premiums for the pur-
poses of this section, the gross premium received by the
Florida Petroleum Liability Insurance and Restoration
Program for the policy shall be used as a base, deduct-
ing therefrom solely charges not recurring upon the
renewal or extension ot the policy. This subsection does
not apply if the department contracts for liabilities pursu-
ant to subsection (8).
(f) No policyholder shall have an offset against any
assessment for which he is liable on account of any
claim for unearned premium or losses payable.
(6) SELF INSURANCE—Any owner or operator of a
petroleum storage system may elect not to participate
in the Florida Petroleum Liability insurance Program for
third-party liability coverage if he demonstrates to the
satisfaction of the department or its designee sufficient
financial responsibility for such liabilities or if he meets
United States Environmental Protection Agency tests for
financial responsibility. An owner or operator who elects
not to participate in the third-party liability coverage of
the program is eligible for restoration insurance cover-
age under the program, if, prior to the occurrence of a
discharge, a demonstration is made that the owner or
operator is otherwise qualified.
(7) DISPOSITION OF PREMIUMS.—
(a) All premiums collected by the department or its
designee from participating owners and operators pur-
suant to this section must be deposited into the Liability
Insurance Account of the Inland Protection Trust Fund
to be used for the Florida Petroleum Liability Insurance
Program. However, If the department contracts for ser-
vices pursuant to subsection (8), the department shall
use the premiums to pay contract fees and deposit the
remainder of the premiums into the Liability Insurance
Account of the Inland Protection Trust Fund.
(b) The Liability Insurance Account of the Inland Pro-
tection Trust Fund must be maintained separately from
the portion of the fund used for the purposes estab-
lished in s. 376.3071(4Xa)-(h). The Liability Insurance
Account may not be included as a part of the obligated
or unobligated balance of the Inland Protection Trust
Fund and must in all respects remain separate from that
portion of the fund. A person may not execute against
any portion of the Inland Protection Trust Fund or
against the department, if the program has insufficient
funds to pay any claim.
(8) PURCHASE OF SERVICES AND REINSURING
LIABILITIES.—The department is authorized to pur-
chase from an insurance company, a reinsurance com-
pany, or an insurance consultant such insurance man-
agement or underwriting services, including, but not lim-
ited to, risk and claims control and legal defense investi-
gation and adjustment services, as may be required to
establish and maintain the third-party liability coverage
of the Florida Petroleum Liability Insurance Program. The
department may reinsure liabilities arising from third-
party coverage with an insurance company, reinsurance
company, or through a reinsurance broker. This transac-
tion is subject to approval by the Department of Insur-
ance. The purchase of such insurance and management
services is not subject to chapter 287.
(9) REPORTING OF THIRD-PARTY LIABILITY
CLAIMS.—All third-party liability claims related to a dis-
charge of petroleum products by a qualified participant
in the program must be filed with the secretary of the
department or his designee.
(10) RULES —
(a) The department shall adopt rules for the proper
management and maintenance of the Florida Petroleum
Liability Insurance Program. In setting premium rates,
the department shall receive the approval of the Depart-
ment of Insurance.
(b) The Department of Insurance shall offer assist-
ance as requested by the Department of Environmental
Regulation in the development of necessary rules to
implement the program.
(c) The department shall establish criteria for
stationary storage tanks that have storage capacities of
550 gallons or less, that are required to be registered
pursuant to s. 376.303, and that are not agricultural
tanks. Compliance with such criteria is not required,
except for participation in the Florida Petroleum Liability
Insurance Program. On and after September 1,1989, an
underground tank having a storage capacity of 550 gal-
lons or less may not be installed unless it is required by
28
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
the State Fire Marshal or it is protected against corro-
sion.
(11) DIVIDENDS.—The Florida Petroleum Liability
Insurance Program shall obtain the approval of the
Department of Insurance prior to paying any dividend or
refund to its policyholders. No such dividend or refund
may be approved until 12 months after the last day of
the fiscal year for which the dividend or refund is pay-
able or such later time as the insurance department may
require in accordance with sound actuarial principles.
Ktitory.—m. 3.13, ch. 88-331; s. 5, ch. 89-168; s. 24. ch. 90-54; is. 16.19. eft.
91-306.
Wat* Sacticn 45. ch. 91-305. prwtdoa thai the amandn w itbyt. 16, ch. 91-305,
apply ratroactivaly to Januify 1.1989.'
376.3073 Local programs and state agency pro-
grams for control of contamination.—
(1) The department shall, to the greatest extent pos-
sible, contract with local governments to provide for the
administration of its departmental responsibilities under
ss. 376.305, 376.3071 (4)(a)-(e), (h), 376.3072, and
376.3077 through locally administered programs. The
department may also contract with state agencies to
carry out the restoration activities authorized pursuant
to ss. 376.3071, 376.3072, and 376.305. However, no
such contract shall be entered into unless the local gov-
ernment or state agency is deemed capable of carrying
out such responsibilities to the department's satisfac-
tion.
(2) To this end, the department shall inform local
governments as to the provisions of chapters 86-159,
88-331, and 90-98, Laws of Florida, and as to their
options hereunder. At its own option, any local govern-
ment may apply to the department for such purpose, on
forms to be provided by the department, and shall sup-
ply such information as the department may require.
(3) Upon approval of its application, an eligible local
government shall be entitled, through written contract
with the department, to receive sufficient funds to
administer the local program. This contract shall provide
that reasonable costs, as determined by the department
and the local government, of administration, investiga-
tion, rehabilitation, other related activities, including the
restoration or replacement of potable water supplies of
affected persons, and implementation of a compliance
verification program, shall be paid to the eligible local
government from the Inland Protection Trust Fund cre-
ated under s. 376.3071 and shall stipulate the method
of payment. The contract may provide for an advance
of working capital to the local government or state
agency in order to expedite the cleanup program ana in
order for local government to contract for cleanup.
(4) Under no circumstances shall the cleanup
criteria employed in locally administered programs or
state agency programs be more stringent than the
criteria established by the department pursuant to s.
376.3071 (5)(b).
(5) Whenever the department makes a clear deter-
mination that a local government or state agency has
breached a contract to the extent that the local program
or state agency program is, in the department's estima-
tion, inadequate to prevent or control inland petroleum
contamination in such jurisdiction or that such program
is being carried out in a manner inconsistent with the
requirements of the contract, the department shall
require that necessary corrective measures be taken by
the local government or state agency within a reason-
able period of time, not to exceed 45 days.
(6) If the local government or state agency fails to
take such necessary corrective action within the time
required, the department may reassume any or all
responsibilities undertaken by the local government or
state agency pursuant to this section.
HUtonr.—s. 17, ch. 86-159; t. 4. ch. 87-374;». 4. eh. 88-331; «. 6, 89-188;
1.17. ch. 91-305.
376.3074 Noncompliance fees.—
(1) In addition to any judicial or administrative rem-
edy authorized by this chapter, the department may
assess a noncompliance fee for failure of any owner or
operator of a facility regulated pursuant to ss. 376.30-
376.319 to comply with the registration, monitoring,
reporting, and recordkeeping requirements of this sec-
tion, and rules adopted pursuant thereto. If the informa-
tion requested by the department is provided within 30
days after receipt by the department of the notification
of noncompliance, no fee shall be assessed. However,
if the owner or operator fails after three or more notifica-
tions to comply with the registration, monitoring, report-
ing, or recordkeeping requirements, the department
may assess the fee without waiting 30 days for compli-
ance.
(2) At the time of assessment of a noncompliance
fee, the department shall give the owner or operator writ-
ten notice setting forth the amount assessed, the spe-
cific provision of law, rule, or order alleged to be violated,
the facts alleged to constitute the violation, the correc-
tive action needed to bring the party into compliance,
and the rights available under chapter 120 to challenge
the assessment. The defenses in s. 376.308 shall be
available for any assessment under this section. The
assessment shall be final and effective unless an admin-
istrative proceeding is requested within 20 days after
receipt of the written notice, and shall be enforceable
pursuant to s. 120.69.
(3) Before assessing any noncompliance fee, the
department shall adopt rules to implement the provi-
sions of this section, which shall include the appropriate
amounts for the noncompliance fees authorized by this
section, based upon the type of registration, monitoring,
reporting, or recordkeeping violation, but not to exceed
$250. Total noncompliance fees assessed shall not
exceed $1,000 quarterly for all monitoring, reporting, or
recordkeeping violations attributable to a specific facility
during any 1 month.
(4) Unless the department initiates a civil action for
nonpayment of a fee properly assessed pursuant to this
section, the department's assessment of a noncompli-
ance fee shall be in lieu of any civil action which may be
instituted by the department in a court of competent
jurisdiction to impose and recover civil penalties for any
violation that resulted in the fee assessment, and shall
be in lieu of imposition of a reinstatement inspection fee
by the department pursuant to s. 376.3072(3)(b).
(5) Fees collected pursuant to this section shall be
deposited in the Pollution Recovery Fund. The depart-
ment may use a portion of the fund to contract for ser-
29
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
vices to assist in the collection of fees assessed pursu-
ant to this section.
(6) Any governmental agency, including a local gov-
ernment, to which has been delegated contractual
authority for any program under this chapter shall be
bound by the procedural requirements of this section
and of chapter 120, if it elects to use the enforcement
provisions of this section. In such case, the agency
responsible for enforcement of the program shall be the
sole enforcement entity authorized to assess noncom-
pliance fees pursuant to this section.
Hltteiy.—•. 2. oh. 90-82
376.3077 Unlawful to deposit motor fuel in tank
required to be registered, without proof of registration
display.—It is unlawful for any owner, operator, or sup-
plier to pump or otherwise deposit any motor fuel into
a tank required to be registered under s. 376.303 unless
proof of valid registration is displayed on such tank itself
or the dispensing or measuring device connected
thereto or, where appropriate, in the office or kiosk of the
facility where the tank is located. The Department of
Environmental Regulation shall enforce the provisions of
this section pursuant to this chapter. The department
may enter into an interagency agreement with the
Department of Agriculture and Consumer Services to
enforce the provisions of this section.
Mlttojy.—•. S. eft. 87-374: a. S. eh. 88-331; 18. oh. 91-306.
Not*.—Former i. 5263056.
376.308 Liabilities and defenses of facilities.—In
any suit instituted by the department under ss. 376.30-
376.319, it is not necessary for the department to plead
or prove negligence in any form or manner. The depart-
ment need only plead and prove that the prohibited dis-
charge or other polluting condition has occurred. The
only defenses of a person alleged to be responsible for
the discharge to any action under ss. 376.30-376.319
are to plead and prove that the occurrence was solely
the result of any of the following or any combination of
the following;
(1) An act of war.
(2) An act of government, either state, federal, or
municipal.
(3) Ar, act of God, which means only an unforesee-
able act exclusively occasioned by the violence of
nature without the interference of any human agency.
(4) An act or omission of a third party, other than an
employee or agent of the defendant or other than one
whose act or omission occurs in connection with a con-
tractual relationship existing, directly or indirectly, with
the defendant, except when the sole contractual
arrangement arises from a published tariff and accept-
ance for carriage by a common carrier by rail, if the
defendant establishes by a preponderance of the evi-
dence that:
(a) The defendant exercised due care with respect
to the pollutant concerned, taking into consideration the
characteristics of such pollutant, in light of ali relevant
facts and circumstances; and
(b) The defendant took precautions against foresee-
able acts or omissions of any such third party and
against the consequences that could foreseeably result
from such acts or omissions.
History.—s. 64. ch. 83-310; s. 11, ch. 84-338; s. 18, ch. 86-159.
376.309 Faculties, financial responsibility.—
(1) Each owner of a facility is required to establish
and maintain evidence of financial responsibility. Such
evidence of financial responsibility shall be the only evi-
dence required by the department that such owner has
the ability to meet the liabilities which may be incurred
under ss. 376.30-376.319.
(2) Any claim brought pursuant to ss. 376.30-
376.319 may be brought directly against the bond, the
insurer, or any other person providing a facility with evi-
dence of financial responsibility.
(3) Each owner of a facility subject to the provisions
of ss. 376.30-376.319 shall designate a person in the
state as his legal agent for service of process under ss.
376.30-376.319, and such designation shall be filed with
the Department of State. In the absence of such desig-
nation, the Secretary of State shall be the designated
agent for purposes of service of process under ss.
376.30-376.319.
Mttory.—< 64, di 83-310: i IB. ch. 88-159.
376.311 Penalties for a discharge.—
(1) The penalty provisions of this section do not
apply to any discharge promptly reported and removed
by an operator in accordance with the rules and orders
of the department.
(2) Penalties assessed herein for a discharge shall
be in accordance with the provisions administered by
the department in chapter 403.
Htttory.—« 84, ch. 83-310.
376.313 Nonexclusiveness of remedies and indi-
vidual cause of action for damages under ss. 376.30-
376.319.—
(1) The remedies in ss. 376.30-376.319 shall be
deemed to be cumulative and not exclusive.
(2) Nothing in ss. 376.30-376.319 requires the pur-
suit of any claim against the Water Quality Assurance
Trust Fund or the Inland Protection Trust Fund as a con-
dition precedent to any other remedy.
(3) Notwithstanding any other provision of law, noth-
ing contained in ss. 376.30-376.319 prohibits any per-
son from bringing a cause of action in a court of compe-
tent jurisdiction for all damages resulting from a dis-
charge or other condition of pollution covered by ss.
376.30-376.319. Except as otherwise provided in sub-
section (4), in any such suit, it is not necessary for such
person to plead or prove negligence.in any form or man-
ner. Such person need only plead and prove the fact of
the prohibited discharge or other pollutive condition and
that it has occurred. The only defenses to such cause
of action shall be those specified in s. 376.308.
1(4) In any civil action brought after July 1, 1986,
against the owner or operator of a petroleum storage
system for damages arising from a petroleum storage
system discharge, the provisions of subsection (3) shall
not apply if it can be proven that, at the time of the dis-
charge;
(a) The alleged damages resulted solely from a dis-
charge from a petroleum storage system which was
installed, replaced, or retrofitted, and maintained, in a
manner consistent with the construction, operation,
repair, and maintenance standards established for such
systems under chapter 17-61, Florida Administrative
30
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
Code, as that chapter may hereafter be amended. The
requirement of consistency with such standards may be
satisfied only by being in compliance with the standards
at the time of the discharge, regardless of the time spec-
ified for compliance under the schedule provided in said
chapter.
(b) A leak detection system or systems or a monitor-
ing well or wells were installed and operating in a manner
consistent with technical requirements of chapter
17-61, Florida Administrative Code, as that chapter may
hereafter be amended; and
(c) All inventory, recordkeeping, and reporting
requirements of chapter 17-61, Florida Administrative
Code, as that chapter may hereafter be amended, have
been and are being complied with.
Any person bringing such an action must prove negli-
gence to recover damages under this subsection. For
the purposes of this subsection, noncompliance with
this act, or any of the rules promulgated pursuant
hereto, as the same may hereafter be amended, shall be
prima facie evidence of negligence.
(5) The court, in issuing any final judgment in any
such action, may award costs of litigation (including rea-
sonable attorney's and expert witness fees) to any
party, whenever the court determines such an award is
in the public interest.
Hlrory.—». 84. ch. 83-310: t. 12. eh. 84-338: ». 20. 21, ch. 86-159.
'Ntti.—Expires October 1,1998, purvuent to 9.21. ch. 86-159. and ts scheduled
for by the Legislature 'during the 1998 reguter legislative session/
376.315 Construction of ss. 376.30-376.319.—Sec-
tions 376.30-376.319, being necessary for the general
welfare and the public health and safety of the state and
its inhabitants, shall be liberally construed to effect the
purposes set forth under ss. 376.30-376.319 and the
Federal Water Pollution Control Act, as amended.
Hirofy.—s. 84, ch. 63-310: 8. 22. ch. 86-159.
376.317 Superseded laws; state preemption.—
(1) If any provision of ss. 376.30-376.319 or of the
rules developed pursuant to such sections, which provi-
sion pertains to a facility maintained for the purpose of
the underground storage of petroleum products for use
as fuel in vehicles, including, but not limited to, those
vehicles used on and off roads, aircraft, watercraft, and
rail, is in conflict with any other provision, limitation, or
restriction which is now in effect under any law of this
state or any ordinance of a local government, political
subdivision, or municipality, or any rule or regulation
adopted thereunder, the provision of ss. 376.30-376.319
shall control, except as provided in subsection (3).
(2) Except as provided in subsection (3), the state
preempts the regulation of the prevention and removal
of pollutant discharges from a facility described in sub-
section (1) which has no single tank having a capacity
exceeding 40,000 gallons at any time.
(3) A county government is authorized to adopt
countywide ordinances that regulate underground stor-
age tanks, as described herein, which ordinances are
the same as or more stringent or extensive than any
state law or rule regulating such tanks, provided:
(a) The original ordinance was legally adopted and
in force before September 1, 1984;
(b) The original ordinance was adopted by the
county and filed with the Secretary of State before July
1, 1987; or
(c) The ordinance establishing a more stringent or
extensive local program is approved by the department
pursuant to 'subsection (5) after the county demon-
strates to the department that it has effectively adminis-
tered the state law or rules for a period of 2 years prior
to filing a petition for approval. However, any county
which has sought approval of a local tank program from
the department prior to January 1, 1988, shall not be
required to demonstrate that it has effectively adminis-
tered the state program for any minimum period.
(4) The department shall either approve or disap-
prove a request to contract for a compliance verification
program authorized pursuant to s. 376.3073 within 90
days after receipt of the complete application. If
approved, the department shall provide full funding to
the local government to carry out the contracted compli-
ance and enforcement responsibilities pursuant to s.
376.3073. The department may not disapprove an appli-
cation due to the population size of a county and may
delegate compliance verification and enforcement to
those local governments who agree to enforce the
state's program jointly.
(5) The department is authorized to adopt rules that
permit any county government to establish, in accord-
ance with s. 403.182, a program regulating underground
storage tanks, which program is more stringent or exten-
sive than that established by any state law or rule regu-
lating underground storage tanks. The department shall
approve or deny a request by a county for approval of
an ordinance establishing such a program according to
the procedures and time limits of s. 120.60. When adopt-
ing the rules, the department shall consider local condi-
tions that warrant such more stringent or extensive regu-
lation of underground storage tanks, including, but not
limited to, the proximity of the county to a sole or single-
source aquifer, the potential threat to the public water
supply because of the proximity of underground storage
tanks to public wells or groundwater, or the detection of
petroleum products in public or private water supplies.
(6) A county government may adopt an ordinance
regulating underground storage tanks that is the same
as any state law or rule regulating such tanks upon
approval by the department of a completed application.
History 13. ch. 84-338: s. 23. ch. 86-159;». 5, eh. 87-374: s 18. eh. 88-156:
s. 6. ch. 88-331; • 7. ch. 89-188.
'Note.—Substituted by the editor* for a refer enoe to "subsection (4)" to conform
to the renumbering ot subsections by s. 7. eft. 89-168.
376.319 Response action contractors; indemnifi-
cation.—
(1) The department may agree to hold harmless and
indemnify a response action contractor who has a writ-
ten contract with the department or who has a written
contract with a local government which has contracted
with the department to administer a program pursuant
to chapter 86-159, Laws of Florida, for any civil dam-
ages to third parties:
(a) That result from the acts or omissions of the
response action contractor in carrying out a response
action; and
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S.1991
(b) That are caused by a discharge or release of a
hazardous substance, pollutant, or other contaminant
from a site upon which the response action is being car-
ried out.
(2) The department, in determining whether or not
to enter into hold-harmless and indemnification agree-
ments, shall consider:
(a) The availability of cost-effective insurance;
(b) The immediate need for the response action;
(c) The availability of qualified response action con-
tractors; and
(d) Restricting the applicability of such agreements
to exclude gross negligence or intentional conduct.
(3) Any payment or cost, including the cost of
defending such actions, which is incurred as a result of
an agreement by the department to hold harmless or
indemnify shall be payable from the Water Quality Assur-
ance Trust Fund or the Inland Protection Trust Fund,
whichever is appropriate, based upon the nature of the
discharge or release.
(4) No state employee or employee of a political sub-
division who provides services relating to a response
action while acting within the scope of his authority as
a governmental employee shall be personally liable for
any actions undertaken by the department, the political
subdivision, or a response action contractor pursuant to
this act. However, nothing in this section shall affect the
liability of any other person.
(5) This section is repealed effective October 1,
1997, and shall be reviewed by the Legislature during
the 1997 regular legislative session.
Htatory.—a 24. ch. 86-159; • 7, eti. 88-331.
376.320 Applicability.—The provisions of this act
apply only to specified mineral acids when stored in
aboveground tanks. The purpose of this act is to prevent
the release of specified mineral acids from aboveground
tanks and to register tne aboveground tanks in which
specified mineral acids are stored.
Hlttofy.—t 1, ch. 90-98.
376.321 Definitions.—As used in this act, the term:
(1) "Aboveground" means that more than 90 percent
of a tank volume is not buried below the ground surface.
An aboveground tank may either be in contact with the
ground or elevated above it.
(2) "Containment and integrity plan" or "CIP" means
a document designed, created, and maintained at a
facility, which shall be considered a public record and
made available pursuant to the provisions of chapter
119, and which sets forth the procedures for the inspec-
tion and maintenance program for aboveground tanks
at that facility which store specified mineral acids. That
program shall be designed for the chemical and physical
characteristics of the specific mineral acid stored and
for the specific materials of construction of the above-
ground tank. The CIP shall be designed to ensure con-
trol of the specific mineral acid stored in an above-
ground tank for the expected lifetime, as determined by
standard engineering practices, of the materials of con-
struction of the specific aboveground tank in which that
mineral acid is stored.
(3) "Department" means the Department of Environ-
mental Regulation.
(4) "Facility* means any nonresidential location or
part thereof containing an aboveground tank or above-
ground tanks which contain specified mineral acids,
which have an individual storage capacity greater than
110 gallons.
(5) 'Flow-through process tank' means a tank in
industrial commercial operations in which, during use,
there is a mechanical, physical, or chemical change of
the substance in the tank taking place. The processing
operation creating the change in the substance may
include mixing, separating, chemical altering, dehydrat-
ing, extracting, refining, polishing, cooling, or heating of
the substance in the tank.
(6) "Liner" means an artificially constructed material
of sufficient thickness, density, and composition that will
contain the discharge of any specified mineral acid from
an aboveground tank until such time as the mineral acid
can be neutralized and/or removed. The liner shall pre-
vent any escape of specified mineral acids or accumu-
lated liquid to the soil or to the surface water or ground-
water except through secondary containment.
(7) "Mineral acids' means hydrobromic acid (HBr),
hydrochloric acid (HCI). hydrofluoric acid (HF), phospho-
ric acid (HjPOJ, and sulfuric acid (H2S04), including
those five acids in solution, if at least 20 percent by
weight of the solution is one of the five listed acids.
(8) "Nonresidential* means that the tank is not used
at a private dwelling.
(9) 'Operator* means any person operating a facility
whether by lease, contract, or other form of agreement.
(10) 'Owner* means any person owning an above-
ground tank subject to this act.
(11) "Permitted wastewater treatment system" means
a facility to which the department has issued a permit
to treat wastewater and release the treated product into
the environment.
(12) "Secondary containment" means a system that is
used for release prevention, and may include one or
more of the following devices:
(a) A double-walled tank;
(b) An external liner; or
(c) A system or structure constructed such that any
accidental release from an aboveground tank would be
collected by a drainage system within the system or
structure and routed to a permitted wastewater treat-
ment system, plant recirculating process system, or
approved alternate containment system.
(13) "Stationary" means e tank or tanks not meant for
multiple site use or a tank or tanks which remain in one
location at the facility site for a period of 160 days or
longer.
(14) Tank" means a stationary device which is con-
structed primarily of nonearthen materials (e.g., con-
crete, metal, plastic, glass) that provides structural sup-
port and is designed primarily to contain mineral acids.
Connected piping from the tank to and including the
nearest cut-off valve shall be considered part of the
tank for purposes of this definition. "Tank" does not
include flow-through process tanks which are tanks
used in industrial or commercial operations in which,
during use, there is a mechanical, physical, or chemical
change of the substance in the tank taking place, which
change may result from mixing, separating, chemical
32
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F.S. 1991
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
Ch. 376
altering, dehydrating, extracting, refining, polishing,
cooling, or heating of the substance in the tank.
Htftoiy.—«. 2. ch. 90-S.
376.322 Powers and duties of the department—
The department shall have the power and duty to:
(1) Contract with local governments as needed to
perform any of its duties under this act.
(2) Establish a program to register tanks subject to
the provisions of this act.
(3) Adopt rules to implement this act.
(4) Enforce the provisions of this act pursuant to the
provisions of ss. 403.121 and 403.161.
(5) Require that facilities covered by this act be sub-
ject to thorough and complete inspections at reasonable
times. The provisions of s. 403.091 shall apply to such
inspections. Any facility which has discharged a pollu-
tant in violation of ss. 376.30-376,319 shall be fully and
carefully monitored by the department to ensure that
such discharge does not continue. The department shall
issue to the tank owner or operator one registration cer-
tificate per facility, covering all tanks at that facility which
have been properly registered, as evidence of the com-
pletion of the registration requirement.
Mltonr-—3. ch. 90-98
376.323 Registration.—All tanks shall be registered
no later than July 1,1991. Registrations shall be renewed
annually. Registration fees shall not exceed $1,000 per
facility. The department shall develop by rule a fee
schedule sufficient to cover the costs associated with
registration, inspection, surveillance, and other activities
associated with this act. Revenues from such fees col-
lected shall be deposited into the Water Quality Assur-
ance Trust Fund, and shall be used to implement the
provisions of this act.
History.—». 4. ch. 90-96.
376.324 Containment and integrity plan.—
(1) The owner or operator of each tank subject to the
provisions of this act shall prepare and have in place a
containment and integrity plan (CIP) for the facility,
which plan shall detail the facility's inspection and main-
tenance program for each tank at the facility which is
subject to the provisions of this act. The CIP shall incor-
porate procedures and requirements designed to mini-
mize the risk of spills, releases, and discharges from
tanks subject to this act. The CIP shall also address con-
struction materials, secondary containment, preventive
maintenance, treatment and disposal, and discharge
response and cleanup procedures.
(2) A professional engineer registered in the state
shall certify that the tanks covered by the CIP for that
facility have been inspected and maintained in accord-
ance with the CIP and that the integrity and containment
of the tanks has not been compromised. The CIP shall
be reviewed and updated every 2 years.
(3) The CIP shall be maintained and made available
for audit by the department at the facility at any reason-
able time and shall be made available to the public upon
request.
(4) The inspection and maintenance program
detailed in the CIP shall be in place at each facility not
later than July 1, 1991.
History.—8. 5. ch. 90-96.
376.325 Alternative to containment and Integrity
plan requirements.—
(1) As an alternative to the requirements of s.
376.324, an owner or operator may choose to provide
the department with certification by a professional engi-
neer that no aboveground tank at the facility is in direct
contact with the ground, and under and around each
tank has been placed and sealed to its supports a sec-
ondary containment system which is either:
(a) Designed and built to contain in excess of 110
percent of the capacity of the largest tank within the
containment; or
(b) Equipped with a drainage system routed to a
permitted wastewater treatment system that is
designed and built to contain any accidental release.
(2) Each facility subject to this section shall provide
to the department by July 1, 1991, an inspection and
maintenance program that shall be reviewed and
approved every 2 years.
History.—s. 6. ch. 90-9S.
376.326 Application of s. 376.317.—Nothing in this
act shall be construed to exclude aboveground storage
tanks from the application of 6. 376.317.
History.—a 7, ch. 90-98.
1376.4Q Petroleum Exploration and Production Bond
Trust Fund; creation; purposes; funding.—
(1) FINDINGS.—The Legislature declares that the
financial resources of the state in the form of a bond
trust fund, the limits of which are in excess of limits avail-
able to most operators, should be available to provide
the Department of Natural Resources the surety for any
cleanup and remedial action for operations which are not
conducted in a safe and environmentally compatible
manner.
(2) INTENT AND PURPOSE.—It is the intent of the
Legislature to establish the Petroleum Exploration and
Production Bond Trust Fund to serve as a repository for
funds which will enable the Department of Natural
Resources to respond without delay to incidents which
affect safety or threaten to cause environmental dam-
age or contamination as a result of incidents involving
petroleum exploration and production activities and
which are not otherwise handled in a timely manner by
the operator or permittee. The useful life of facilities used
to produce oil and natural gas in the state can be from
15 to 40 years and it is the Legislature's intent that safe
and environmentally compatible operations be con-
ducted for the economic life of any well, field, or produc-
tion facility. It is the further intent of the Legislature that
this trust fund make available immediately to the depart-
ment funds sufficient to correct violations such as an
operator's failure to adequately plug, abandon, or
restore production sites or other test sites and facilities
after operations cease, if the permittee or operator can-
not or will not correct the violations within a reasonable
time. Furthermore, it is the Legislature's intent that if an
amount in excess of the funds on deposit in the trust
fund is needed for remedial action, money from the
Coastal Protection Trust Fund be made available in the
form of a temporary transfer of funds. The temporary
transfer shall be repaid as soon as possible after the
33
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Ch. 376
POLLUTANT DISCHARGE PREVENTION AND REMOVAL
F.S. 1991
department obtains penalties, judgments, recoveries, or
reimbursements.
(3) CREATION —There is hereby created the Petro-
leum Exploration and Production Bond Trust Fund,
which stall be administered by the Department of Natu-
ral Resources. This trust fund shall be used by the
department as a nonlapsing, revolving fund for carrying
out the purposes of this section and s. 377.2425. All fees
collected from permittees under ss. 377.2425(1 Kb),
377.24(1), and 377.2408(1), and all penalties, judgments,
recoveries, reimbursements, loans, and other fees and
charges related to the implementation of this section
shall be deposited in the trust fund.
(4) USES.—
(a) When the department has reason to believe that
incidents of contamination related to the conduct of
operations, including, but not limited to, drilling of explor-
atory or production wells, operation and maintenance of
producing wells, pressure maintenance wells, or dis-
posal wells, and related gathering lines, may pose a
threat to the environment or the public health, safety, or
welfare, or if the permittee, owner, or operator of such
facility does not take immediate remedial or other
approved corrective action, the department shall obli-
gate moneys available in the trust fund to provide for:
1. Prompt investigation and assessment of surface
or underground contamination or other permit violations;
2. Prompt remedial action to repair, replace, or
restore to a safe condition test sites, wells, and facilities
at the affected site or location;
3. Rehabilitation of contamination at sites, which
rehabilitation shall include cleanup of contaminated
soils, groundwater, and surface waters to minimize envi-
ronmental damage;
4. Maintenance and monitoring of sites or facilities
that have been repaired, replaced, or restored;
5. Inspection and supervision of activities
described in this section;
6. Payment of expenses incurred by the depart-
ment in its efforts to obtain from responsible parties the
payment or recovery of reasonable costs resulting from
activities described in this section; or
7. Payment of any other reasonable costs of admin-
istration.
(b) The department may also use moneys from the
trust fund to conduct routine inspections of exploratory
or production wells, pressure maintenance wells, dis-
posal wells, and related gathering lines.
(5) FUNDING —There shall be deposited in the
Petroleum Exploration and Production Bond Trust Fund:
(a) All fees charged permittees under ss.
377.2425(1 )(b), 377.24(1), and 377.2408(1); and
(b) All penalties, judgments, recoveries, reimburse-
ments, and other fees and charges related to the imple-
mentation of this section;
If mone/s on deposit in the trust fund are not sufficient
to satisfy the needed remedial or corrective action, and
if the responsible party does not take remedial and cor-
rective action in a timely manner or if a catastrophic
event occurs, a temporary transfer of the required
amount, or a maximum of $10 million, from the Florida
Coastal Protection Trust Fund pursuant to 2s.
376.11(4Xi) is hereby authorized. The Coastal Protection
Trust Fund shall be reimbursed immediately upon
deposit into the Petroleum Exploration and Production
Bond Trust Fund of moneys referred to in paragraph (b).
(6) RECOVERY.—The department shall recover to
the use of the trust fund from the permittee for any facili-
ties for petroleum exploration or production, petroleum
gathering, or other exploration or production activities all
sums expended from the trust fund pursuant to this sec-
tion. Requests for reimbursement to the trust fund for
such costs, if not paid within 120 days after demand,
shall be turned over to the Department of Legal Affairs
for collection.
(7) INVESTMENTS; INTEREST.—Moneys in the trust
fund which are not needed currently to meet the obliga-
tions of the department in the exercise of its responsibili-
ties under this section shall be deposited with the Treas-
urer to the credit of the trust fund and may be invested
as provided by law.
Matty.—a. 4, ch. 89-366.
'Not*.—Section 1. cfv 61.144, provides that "lt]he Department ol Natural
Ftesouroee is euthorized to aooept grants and donation tnd dspesit them Into the
Research Account oreeted althn the Patroisun Ejylortfon and Production Bond
Trust Fund. The department it further authorized to develop and bnploment e pro-
gram of laeeaich on matters misled to oil and gas production. The objective at the
reeearch it to investigate prooeduras tot plugging and abandonment of weRs aban-
doned before 1974, and the department ahefl recommend to the LegMture, before
the 1994 regular session, the advisability of developing a program tor replugging oar-
tain of these walls. Further, the department shall-craate an ad^aoryoommitteeoom-
posed o) npiseentativei from the aU and gas production Industry snd government
tc essisl the department in designing and knplsmenting the research program;
develop an eoonomic and environmental risk assessment on the potential for
groundwater oontamintiion tram wets plugged before 1974: det*lop procedure*
end ooat estimates tor s continuing program to oonact inadequate plugg'hS ofl
and gas wells abandoned before 1974; and conduct other activities, including actual
detailed site investigaboru, and carry out remedial ections st one abandoned v»D
location eisocialed with south Florida oil production and at one abandoned wall loca-
tion associatad with wast Florida oil production. The remedial actions conductad el
the two locations shall provide a bert for raoommendalions on methods to tie
tmployod and oosti.'
mote.—Substituted for a reference to a 376.11 (4X>) to oonlorm to renumbering
by s. 16. ch. 90-243.
376.60 Asbestos removal program inspection and
notification fee.—The Department of Environmental
Regulation shall charge an inspection and notification
fee, not to exceed $50 for a residential dwelling, $300 for
a small business as defined in s. 288.703(1), or $1,000
for any other project, for any asbestos removal project.
Public school districts and private schools are exempt
from such fees. Any fee collected shall be deposited in
the asbestos program account in the Air Pollution Con-
trol Trust Fund to be used by the department to adminis-
ter its asbestos removal program. The department may
contract with a local government to conduct asbestos
removal programs within the jurisdiction of that local
government.
History.—a 1, ch. 8C-117; s 59. ch. 90-331.
34
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SJ75.031 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 376.011
alion areas, wildlife preserves, loresl areas, wetlands,
lloodways and wnler storage areas, beaches, water
access siles. boating and navigational channels, sub-
merged lands, historical and archaeological sites, and
rights-of-way and sites lor access roads which may be
necessary lor maximum development, use. and enjoy-
ment ol any outdoor recreation or conservation areas.
The terms "land" and lands" where used singly in this
act shall be construed as inclusive ol lands, water areas,
and related resources.
(6) The department may acquire by the exercise ol
(he power ol eminent domain, in accordance with the
statutes ol Ihe state, any land or waler areas, related
resources, and property and any and all rights, title, and
interest in such land or waler areas, related resources,
and other properly which it determines reasonably nec-
essary lor ihe preservation ol floodways and waler stor-
age areas, boating and navigational channels, rights-ol-
way lor access roads which may be necessary lor maxi-
mum development and use ol any outdoor recreation
and conservation areas, and rights-of-way for access
which may be necessary lor the use and enjoyment of
public waterways.
(7) The department may contract for the manage-
ment or lease ol acquired land, water areas, and related
resources, or improvements (hereon, with any stale
agency lor its authorized purposes. The department
may. in its discretion, require such slate agency to pay.
as rentals on such land, water areas, related resources,
or improvements, all or any part ol the revenues derived
from the land.
(6) The department may. if it deems it desirable and
in the best interest of the program, request Ihe board of
trustees to sell or otherwise dispose of any lands or
waler storage areas acquired under this act. The board
of trustees, when so requested, shall offer the lands or
water storage areas, on such terms as Ihe department
may determine, first to other stale agencies and then,
if still available, to the county or municipality in which Ihe
lands or wnler storage areas lie. If not acquired by
another state agency or local governmental body lor
benelicial public purposes, the lands or waler storage
areas shall then be ollered by Ihe board of trustees at
public sale, alter lirst giving notice ol such sale by publi-
cation in a newspaper published in Ihe county or coun-
ties in which such lands or waler storage areas lie not
less than once a week lor 3 consecutive weeHs. An pro-
ceeds Irom Ihe sale or disposition ol any lands or water
storage areas pursuant to this section shall be depos-
ited in Ihe Land Acquisition Trust Fund.
(9) The department may sell, lease, or otherwise dis-
pose ol certain products and user fights tn. under, or
upon land, waler areas, and related resources acquired
under the provisions of this act. including, but not limited
to, oil and minerals, timber and loresl products, sand,
gravel, earth, gracing rights, and farming rights on such
terms and conditions as it determines, il Ihe safe, lease,
or other disposition is not inconsistent wilh or injurious
to Ihe outdoor recreation, conservation, and other pur-
poses for which such lands and waler areas were
acquired.
{10) I he department is empowered and authorized to
provide matching funds to counties and municipalities
ol up lo 50 percent ol the cost of purchasing, exclusive
of condemnation, rights-ol-way lor access roads or
walkways to public beaches contiguous with ihe Allan
tic Ocean or the Gull of Mexico.
Mttoqr.-n 3 Ch W .W O rr> 6' .151. ?/ Jb Ch (ft iffi i I f.h
tt-104 1 I. ch /S-fll.1 U ch /9 ?SS % 3 ch W-.1S6 l 6 ch 01-• 14. < lb
ch no * u. ch m ii6.» a rh m.ti* i j ch m « is f.h <*i
»i 9 19 Ch 9? ?m
CHAPTER 376
POLLUTANT DISCHARGE PREVENTION
AND REMOVAL
376.011 Pollutant Discharge Prevention and Control
Act; short title.
376.031 Delinilions.
376.051 Powers and duties of the Department ol Nat-
ural Resources.
376.065 Operation ol terminal facility without dis-
charge prevention and response certifi-
cate prohibited; penalty.
376.07 Regulatory powers ol department.
376.0705 Development ol training programs and edu-
cational materials.
376.071 Discharge contingency plan.
376.10 Personnel and equipment.
376.121 Liability for damage to natural resources.
376.163 Pollutant Oischarge Technical Advisory
Council.
376.30 Legislative intent with respect to pollution ot
surface and ground waters.
376.301 Delinilions of terms used in ss.
376.30-376.319.
376.302 Prohibited acts; penalties.
376.303 Powers and duties of the Department of
Environmental Regulation.
376.305 Removal ol prohibited discharges.
376.307 Water Quality Assurance Trust Fund.
376.3071 Inland Protection Trust Fund; creation; pur-
poses; lunding.
376.3072 Florida Petroleum Liability and Restoration
tnsurancg Progtam.
376.3074 Noncompliance lees.
376.308 Liabilities and defenses of facilities.
376.311 Penalties lor a discharge.
376 313 Nonexclusiveness ol remedies and individ-
ual cause ol action lor damages under ss.
376.30-376.319.
376.317 Superseded laws; slate preemption.
376.320 Applicability.
376.321 Delinilions.
376.322 Powers and duties of Ihe department.
376323 Registration.
376,324 Containment and integrity plan.
3/6 325 Alternative lo conlninmcnl and integrity plan
requirements.
376.326 Application ol s. 376.317.
37660 Ashnslns removal program insjwclion and
notification lr«
376.011 Pollutant Discharge Prevention and Con-
trol Act; short title. -Sections 37GOI1 -370 17. 3/G 19-
1032
s. 376.011
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 376.0S1
376.21 shall be known as Ihe 'Pollutant Dischaige Pre-
vention atMl Control Act."
MttOfy. * 1 i;h TO I'M. I ih /1 111 • ch 8.1-310. t «. Ch 9?-MJ
376.031 Delinilions.— When used in ss. 376011-
376 21. unless Ihu conlexl clearly requires otherwise,
the term:
(1) "Barrel" means 42 U.S. gallons at 60degrees Fah-
renheit.
(2) "Board* means Ihe board ol arbitration.
(3) 'Coastline' means the line of mean low waler
along the portion ol the coast that is in direct contact
with Ihe open sea and Ihe tine marking Ihe seaward timil
ol inland waters, as determined under the Convention on
Territorial Seas and the Contiguous Zone. 15 U.S.T. (PI.
2) 1606.
(4) 'Damage* means Ihe documented extent of any
destruction lo or loss of any real or personal property,
or Ihe documented extent of any destruction of the envi-
ronment and natural resources, including all living Ihings
except human beings, as the direct result of the dis-
charge of a pollutant.
(5) 'Department* means Ihe Department ol Natural
Resources.
(6) 'Director* means the executive director of the
Department of Natural Resources.
(7) 'Discharge* includes, bul is not limited lo. any
Spilling, leaking, seeping, pouring, emitting, emptying,
or dumping which occurs within Ihe territorial limits of
the slate or outside Ihe territorial limits of Ihe state and
allects lands and waters within the lerritorial.limits ol the
slate.
(6) 'Discharge cleanup organization' means any
group, incorporated or unincorporated, ol owners or
operators ol walerlront terminal facilities in any port or
harbor of the state, and any other person who may elect
lo join, organized for the purpose of containing and
cleaning up discharges of pollutants through coopera-
tive eflorts and shared equipment and facilities. For Ihe
purposes of ss. 376.011-376.21. any third-party
cleanup contractor or any local government shall be rec-
ognized as a discharge cleanup organization, provided
such contractor oi local government is property certified
by the department.
(9) 'Fund* means Ihe Florida Coastal Protection
Trust Fund.
00) 'Marine fueling facility* means a commercial or
recreational coastal facility providing fuel to vessels,
excluding a bulk product facility.
pi) "Other measurements" means measurements
set by Ihe department for products transferred at termi-
nals which are other than lluid or which are not com-
monly measured by Ihe barrel.
(12) "Owner* means any person owning a terminal
facility; "operator* means any person operating a termi-
nal lacility, whether by lease, contract, or other lorm of
agreement.
(13) "Person" means any individual, partner, joinl ven-
ture, corporation; any group of Ihe foregoing, organized
or united lor a business purpose; or any governmental
entity
(14) 'Person in charge" means Ihe person on Ihe
scene who is in direct. responsible charge ot a terminal
facility or vessel from which pollutants ate discharged,
when the discharge occurs.
(15) "Pollutants" includes oil of any kind and in any
form, gasoline, pesticides, ammonia, chlorine, and deriv-
atives thereof, excluding tiquelied petroleum gas.
(16) 'Pollution" means the presence in the outdoor
atmosphere or waters ol the state ol any one or more
substances or pollutants in quantities which are or may
be potentially harmful or injurious lo human health or
wellare, animal or plant life, or property or which may
unreasonably interfere with Ihe enjoyment of life or prop-
erty, including outdoor recreation.
(17) "Registrant" is a terminal facility required to pos-
sess a valid registration certificate to operate as a termi-
nal facility.
(16) "Technical feasibility* or 'technically feasible*
means lhat given available technology, a restoration
project can be successfully completed.
(19) "Terminal facility* means any waterfront or off-
shore facility ol any kind, other than vessels not owned
or operated by such facility, and directly associated
waterfront or offshore appurtenances including pipe-
lines located on land, including submerged lands, or on
or under the surface of any kind of water, which lacility
and related appurtenances are used or capable of being
used for Ihe purpose of drilling lor, pumping, storing,
handling, transferring, processing, or refining pollutants.
Including, but nol limited to. any such facility and related
appurtenances owned or operated by a public utility or
a governmental or quasi-governmental body. A vessel
shan be considered a terminal facility only in the event
of a ship-to-ship transfer of pollutants, and onty that
vessel going to or coming Irom the place of transfer and
Ihe terminal facility. For the purposes ol ss. 376.011-
376.21. the term 'terminal facility* shall not be construed
to include waterfront facilities owned and operated by
governmental entities acting as agents ol public
convenience lor operators engaged in Ihe drilling for or
pumping, storing, handling, transferring, processing, or
refining of pollutants; however, each operator engaged
In Ihe drilling lor or pumping, storing, handling, transfer-
ring, processing, or relining of pollutants through a
waterfront facility owned and operated by such a gov-
ernmental entity shall be construed as a terminal facility.
(20) 'Transfer" or 'transferred' includes ontoading or
offloading between terminal facility and vessel, vessel
and vessel, or terminal facility and terminal facility.
(21) "Vessel" includes every description of watercralt
or other contrivance used, or capable ol being used, as
a means ol transportation on water, whether sell-
propelled or otherwise, and includes barge? and lugs.
MMwy.-a }. eft rO-3«4.a l.ch » 3, eti 74-M6 t i.rh 80-382. i
60. eh 83-3*0. • 37. eh ®-8». t tO ch 90-54. • i.eh 97-30 • i.eh 92-l»3
376.051 Powers and duties ol the Department of
Natural Resources.—
(1) The powers and duties conferred by ss.
376.011 -376.21 shan be exercised by Ihe Department ol
Natural Resources and shall be deemed lo be an essen-
tial governmental function in Ihe exercise of Ihe police
power o1 the slate. The Department ot Environmental
Regulation is directed to cooperate with the Department
ol Natural Resources and to olfer consultative services.
1033
-------
»• 376.051 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 376.07
enforcement. prosecution, and technical advice lo the
department. The department may call upon any other
state agency tor consultative services and technical
advice and the agencies are dinjcted lo cooperate in
said request.
(2) The powers and duties ol the department under
ss. 376011-3/6 21 shall extend lo the boundaries ol the
state described in s. t. Art. II ol the Slate Constitution.
(3) Registration certificates and discharge preven-
tion and lesponse certificates required under ss.
376011-376 21 shall be issued Irom the department
subject to such terms and conditions as are set lorlh in
ss. 376.011 -376.21 and as set lorlh in rules adopted by
Ihe department as authorized herein.
(4) Whenever it becomes necessary lor Ihe stale lo
protect Ihe public interest under ss. 376.011-376.21, it
shall be Ihe duty ol Ihe department lo keep an accurate
record ol costs and expenses incurred and thereafter
diligently lo pursue Ihe recovery ol any sums so incurred
Irom the person responsible or Irom Ihe Government ol
the United Slates under any applicable federal act.
(5) The department may bring an action on behall ol
the stale lo enlorce Ihe liabilities imposed by s. 376.12.
The Department ol Legal Affairs shall represent the
department in any such proceeding.
(6) Within 120 days ol July 1. 1383. the department
shall adopt rules providing lor Ihe coordination ol Ihe
respective duties ol Ihe Department ol Environmental
Regulation and Ihe Department ol Natural Resources
with respect to the implementation ol ss. 376 011-
376.21. Such rules shall specifically establish proce-
dures thai determine which ol the two agencies should
respond in cases of specilic types ol pollutant discharge
incidents, and such rules shall establish minimum
criteria lor response limes The rules shall also specify
criteria and procedures lor Ihe expenditures ol Florida
Coastal Protection Trust Fund moneys lor pollution inci-
dents that require action by the Department ol Environ-
mental Regulation.
Htatovv.-B S ch ro-744. t ?.C*| 71-111.• Vch 74-136 • 62 eft *9-«& i
81. rti m - 310. • II. eti 90.u. • 1 ch 97-111
376.065 Operation ol terminal facility without dis-
charge prevention and response certificate prohibited;
penalty.—
(1) Every owner or operator ola terminal facility shall
obtain a discharge prevention and response certificate
issued by Ihe department. A certificate shall be valid for
12 months after the dale ol issuance, subject lo such
terms and conditions as Ihe department may determine
are necessary lo carry out Ihe purposes ol ss. 376.011-
376 21
(2) Each applicant lor a discharge prevention and
response certificate shall submit information, in a form
satisfactory lo Ihe department, describing the following:
(a) The barrel or other measurement capacity of Ihe
terminal facility and the length ol the largest vessel
docking at or providing service from Ihe terminal facility.
(b) All prevention, containment, and removal equip
menl, including, but not limited lo. vehicles, vessels,
pumps, skimmers, booms, chemicals, and communica
lion devices lo which the facility has access, whcllier
through direct ownership or by contract or membership
in an approved discharge cleanup organization
(c) The terms ol agreement and Ihe operation plan
ol any discharge cleanup organization lo which the
owner or operator ol Ihe terminal facility belongs.
(3) No person shall operate or cause to tie ojieralod
a terminal facility without access lo minimum contain
menl equipment measuring five times Ihe length ol Ihe
largest vessel docking at or Ihe largest vessel providing
service Irom Ihe terminal facility, whichever is larger. The
containment equipment shall be available to begin
deployment on the water within I hour alter discovery
ol a discharge. Within a reasonable lime period, adrti
lional cleanup equipment shall be available, either
through direct ownership or by contract or membership
in an approved cleanup organization, lo reasonably
clean up 10.000 gallons ol pollutants, unless Ihe terminal
facility does not store or service vessels having Ihe
capacity lo carry that quantity as luel or cargo. Cleanup
or containment equipment purchased with slate lunds
sriall not count as required equipment under this sec-
tion. The requirements ol Ihis section shall not apply lo
terminal facilities which store only motor fuel or service
only motor fuel lo vessels. The requirements ol Ihis sec-
tion shall not apply until January 1. 1992. lo land-based
terminal facilities with a storage capacity less than
30.000 gallons which store special luel or service special
luel lo vessels. For purposes ol Ihis subsection, 'motor
lueT means gasoline, gasohol, and other mixtures ol
gasoline. For purposes ol Ihis subsection, 'special luel"
means diesel luel, alcohol, kerosene, or any light luel. or
combination thereof, other than motor fuel. Special luet
does not include any heavy fuels or oils, such as crude
oil. American Society Ipr Testing Materials (ASTM)
grades 5 and 6 residual oils, intermediate luel oils (IFO)
with a viscosity ol 30 and- higher, or bunker C. The
exemptions provided by Ihis subsection do not eltmi
nale any responsibilities arising Irom the discharge of a
pollutant and lot conducting remedial action as required
by this chapter or chapter 403.
(4) Upon a showing ol satisfactory containment and
cleanup capability required by the department under
this section. Ihe applicant shall be issued a discharge
prevention and response certificate covering the termi-
nal facility and related appurtenances, including vessels
as defined in s. 376031.
(5) Any person who violates Ihis section or the terms
and requirements ol such certification commits a non-
criminal infraction. The civil penally for each infraction is
$500. Any person charged by Ihe department wilh a
noncriminal inlraction under Ihis subsection may:
(a) Parlhe civil penally, either by mail or in person,
within to days ol the date ol receiving Ihe citation: or
(b) Elect lo appear lor a hearing belore Ihe county
court in Ihe county where the letrrtirial facility is located.
The date, time, and location ol the hearing shall tie indi-
cated on the citation II Ihe court determines lhat an
inlraction has been proven beyond a reasonable doubt.
Ihe court may impose Ihe civil penally prescribed in Ihis
subseclion and may also impose court costs aiw 1 oilier
applicable charges.
Wvlonr. - * i:l I h 111 H I C rh IT 113
376.07 Regulatory powers of department.—Ihe
depailmenl shall Irom lime lo lime adopt, amend.
10.14
1992 SUPPLEMENT TO FLORID* STATUTES 1991
». 376.07
repeal, and enforce reasmable rules insolar as Ihey
relate lo discharges ol poUulants inlo Ihe waters ol this
slate or onto Hie coasts ol this stale.
(1) The rules shall bo adopted in accordance with
the Administrative Procedure Act. chapter 120.
(2) The department shad adopt rules including, but
not limited In. the following mailers:
fa) Operation and inspection requirements lor dis-
charge prevention, abatement, and cleanup capabilities
ol terminal facilities, vessels, and other mailers relating
lo certification under ss. 376.011-376.21. The depart-
ment shall not require vessels to maintain discharge pre
venlion gear, holding tanks ol any kind, and contain-
ment gear in excess ol federal requirements. However,
a terminal facility transferring heavy oil lo or Irom a ves
set wilh a heavy oil storage capacity greater than 10.000
gallons shall be required lo adequately boom or seal oil
the area between Ihe vessels, or Ihe area between Ihe
vessel and Ihe dock, bulkhead, or land, during a transfer
or bunkering operation, lo minimize Ihe escape ol such
pollutants from the containment area. As used in this
paragraph. Ihe term 'adequate booming" means boom-
ing wilh proper containment equipment which is
employed and located lor Ihe purpose ol preventing, lor
Ihe most likely discharge, as much of Ihe pollutant as
possible Irom escaping oul ol the containment area. The
owner or operator of Ihe terminal facility involved in the
transfer ol such pollutant lo or Irom a vessel which is not
adequately boomed commits a noncriminal, inlraction,
shall be cited by Ihe department, and shall appear
belore Ihe county court lor Ihe county In which the viola-
lion occurred, or Ihe county court closest to the location
at which the violation occurred. The civil penally
assessed by the court lor such an inlraction may be up
lo $5,000 depending on Ihe severity ol the inlraction.
Failure lo deploy any boom equipment during such a
transfer or bunkering operation shall result in a civil pen-
ally ol $5,000
(b) Procedures and methods ol reporting dis-
charges and other occurrences prohibited by ss.
376 011-37621.
(c) Procedures, methods, means, and equipment lo
be used by persons subject to regulation by ss.
376.011-376.21 in Ihe removal ol pollutants.
(d) Development and implementation ol criteria and
plans lo meet pollution occurrences ol various degrees
and kinds.
(e) Creation by contract or administrative action of
a slate response team which shall be responsible lor
creating and maintaining a contingency plan ol
response, organization, and equipmenl lor handling
emer;|ency cleanup operations and wildlile rescue and
rehabilitation o(>«ralions The slate plans sh?0 include
detailed cniergency operating procedures lor Ihe slate
as a whole. and lite team shall Irom lime lo lime conduct
practice aterls. These plans shaObe tiled wilh Ihe Gover-
nor and all Coasl Guard stations in Ihe slate and Coast
Guard captains ol Ihe port having responsibility lor
enlorceinenl nl federal pollution laws wilhin the stale, on'
or belore January I. 1975. The contingency plan shall
include all necessary inloimalion lor Ihe total contain-
ment and cleanup ol pollution, including, but not limited
lo. an inventory nl equipmenl and its location, a table ol
organization wilh Ihe names, addresses, and telephone
numbers of aH persons responsible lor implementing
every phase ol Ihe plan, including a plan lor wildlife res-
cue and rehabilitation operations, a list ol available
sources of supplies necessary lor cleanup, and a desig
nation ol priority zones to determine Ihe sequence and
methods ol cleanup. The slate response team shall act
independently ol agencies ol Ihe Federal Government
but is directed to cooperate with any federal cleanup
operation.
(I) Requirements lor minimum weather and sea con-
ditions lor permitting a vessel lo enter port and lor Ihe
salely and operation ol vessels, barges, lugs, motor
vehicles, motorized equipmenl. and other equipment
relating to the use and operation of terminals, lacilities.
and refineries. Ihe approach and departure Irom termi-
nals. lacilities, and refineries, and requirements that con-
tainment gear approved by the department be on hand
and maintained by terminal lacilities and refineries wilh
adequate personnel trained in its use.
(g) Requirements lhal. prior lo being granted entry
Into any port in Ihis state, the master of a vessel shall
report:
1. Any discharges ol poButants Ihe vessel has had
since leaving the last port.
2. Any mechanical problem on Ihe vessel which
creates Ihe possibility oI a discharge.
¦3. Any denial ol entry into any port during the cur-
rent cruise of Ihe vessel.
Any person who shad make or cause to be made any
lalse statement in response to requirements ol any pro-
visions of ss. 376.011-376.21 with a Iraudulenl Intent
commits a lelony of the second degree, punishable as
provided in s. 775.082, s. 775.083. or s. 775.084. as
required In *s. 637.012.
(h) Requirements lhat any registrant causing or per-
mitting Ihe discharge of a pollutant in violation ol Ihe pro-
visions ol ss. 376.011-376.21. and a! other reasonable
times, be subject to a complete and thorough inspec-
tion. II Ihe department determines there are unsatisfac-
tory preventive measures or containment and cleanup
capabilities, it shall, a reasonable lime alter notice and
hearing in compliance with chapter 120. suspend Ihe
registration until such time as there is compliance wilh
Ihe department requirements.
(i) Such other rules as Ihe exigencies ol any condi-
tion may require or as may reasonably be necessary lo
carry out Ihe Intent of ss. 376011-376.21.
(3) Alter July 3t, 1990. no lobster trap or traps to be
deposited into waters ol Ihe slate shall be impregnated
wilh a petroleum product lhal may be released from
such trap or traps. Alter July 31. 1995. no person shall
deposit inlo Ihe waters ol Ihe slate any Inbster trap or
traps lhal have been impregnated with a petroleum
product thai may be released Irom such trap or traps
into Ihe waters ol Ihe slate.
--in u t r.c* ro-2M.a r.cti 74-336 i i.e* i« lo w ¦
».d> 97-113
ma*. -AiammJKIDvl H.eft kkio-H m-n
Mft, loaownf« 3reori7lfikl **«i» I" *'•*¦l-"-" "V""1" ¦ "V*
d Cbta jl «ra hM b»»n df»IPd I* Ow
fMot* •• Wlm Kit 01? piMVl rtv* rn* on» <4
1035
-------
3. 376.0705
1992 SUPPLEMENT TO FLOfllPA STATUTES 1991
s. 376.121
376.0705 Development of training programs end
educational materials. — The Department ol Natural
Resources shall encourage the development of training
programs lor personnel needed lor pollutant discharge
prevention and cleanup activities. The department shad
work wilh accredited community colleges, vocal tonal -
technical centers, slate universities, and private institu-
tions in developing educational malenafs. courses ol
sludy. and other such information lo be made available
lor persons seeking lo be (rained lor pollutant discharge
prevention and cleanup activities.
Hlitwr.-a 79. th 90-54 » a ch 97-113
376.071 Discharge contingency plan.—Alter
December 31.1990. any vessel operating in stale waters
with a storage capacity lo carry 10.000 gallons or more
ol pollutants as fuel and cargo shad maintain an ade-
quate written ship-specilic discharge prevention and
control contingency plan. Any such vessel shall have on
board a "discharge officer." designated by the contin-
gency plan, who is responsible lor training crew mem-
bers to carry out discharge response efforts required tn
(he contingency plan and coordinating an on-board
response ellorts in case ol a discharge. An adequate
plan shall include provisions lor on-board response,
including notification, verification, pollutant incident
assessment, vessel stabilization, discharge mitigation,
and on-board discharge containment, in accordance
wilh this chapter, department rules, and the Florida
Coastal Poflulanl Discharge Contingency Plan. A plan in
compliance wilh the federal requirement lor a ship-
specific discharge contingency plan chall satisfy the
requirements lor an adequate ship-specific discharge
contingency plan required by Ihls section. On or alter
January 1. 1991. the master ol a vessel with a storage
capacily to carry 10,000 gallons or more of pollutants as
fuel and cargo, which vessel is operating in slale waters
without an adequate contingency plan, commits a non-
criminal infraction. The master shad be cited by Ihe
department and shad appear belore the county court lor
Ihe county in which Ihe violation occurred or Ihe county
court closest to the location a! which Ihe violation
occurred. The civil penalty lor such an infraction shall be
up to 15.000. An adequate contingency plan musl be
submitted lo Ihe department prior to the vessel reenter-
ing a Florida port. Failure to submit Ihe required plan
shad result in a civil penally of $10,000.
HNhwy.-l IS. eh 90 V. t 9. c* 92-113
376.10 Personnel and equipment—The depart-
ment shall establish and maintain al such ports within
the slate and other places as it shall determine such
employees and equipment, other than equipment fur-
nished by Ihe regislranl, as in ils judgment may be nec-
essary lo carry out the provisions of ss. 376.011 -376.21.
The department may employ and prescribe the duties
of such employees, subject lo Ihe rules and regulations
ol Ihe Division ol Personnel Management Services ol the
Department oJ Management Services. The salaries of
the employees and the cost ol the equipment shall be
paid from (he Florida Coastal Protection Trust Fund
established by ss. 376.011-376.21. The department
shall periodically consult wilh olher departments ol Ihe
slate and specifically with Ihe Department of Environ-
mental Regulation relative lo procedures lor the preven-
tion of discharges ol pollutants into or allecling Ihe
coastal waters of Ihe slale from operations regulated by
ss 376.011-376 21.
Hhtoor.-« 9 ch »-?«4 « 7. c* ri. I J/, * f.ch rj-,V6 i «0 ch H-336
* 63. Ch /9 6V * to. Ct> to-W i 30. ch 95-81. t <24. c* 9?-?/9 \ 15 c»
w-aje
970.121 Liability for damage to natural resources.
The Legislature linds that extensive damage to the
slate's natural resources is the Hkefy result of a pollutant
discharge and (hat it is essential (hat (he state ade
quately assess and recover Ihe cost ol such damage
from responsible parlies. II is Ihe stale's goal lo recover
the costs ol restoration Irom the responsible parties and
lo fjslore damaged natural resources to (heir predis-
charge condition. In many instances, however, restora-
tion is not technically leasible. In such instances. Ihe
slate has Ihe responsibility lo its citizens lo recover the
cost ol all damage lo natural resources. To ensure lhat
the public does noi bear a substantial loss as a resutl
ol Ihe destruction ol natural resources. Ihe procedures
set out in this section shall be used lo assess the cost
of damage to suph resources. Natural resources include
coastal waters, wetlands, estuaries, lidal Hats, beaches,
lands adjoining Ihe seacoasls of the slate, and an living
things except human beings. The Legislature recog-
nizes Ihe difficulty historically encountered in calculating
Ihe vafue of damaged natural resources. The value of
certain qualities ol Ihe stale's natural resources is nol
readily quantifiable, yet the resources arid (heir qualities
have an intrinsic vatue lo Ihe residents of the slate, and
any damage to natural resources and thejr qualities
should nol be dismissed as nonrecoverable merely
because ol the difficulty in quantifying their value. In
order to avoid unnecessary speculation and expenditure
ol limiled resources to determine these values, Ihe Leg-
islature hereby establishes a schedule lor compensation
lor damage to Ihe stale s natural resources and the qual-
ity ol said resources.
(t) The department shall assess and recover from
responsible parlies the compensation lor Ihe injury or
destruction ol natural resources..including. but nol lim-
iled to, the death or injury ol living things and damage
to or destruction of habitat, resulting from pollutant dis-
charges prohibited by s. 376.041. The amounl of com-
pensation and any costs ol assessing damage and
recovering compensation received by Ihe department
shall be deposited into the Florida Coaslal Protection
Trust Fund pursuant to s. 376.12 and disbursed accord-
ing to subsection (II). Whoever violates, or causes lo be
violated, s. 376.041 shall be liable to Ihe state lor dam-
age to natural lesources.
(2) The compensation schedule lor damage to natu-
ral resources is based upon Ihe cost ol restoration and
the loss of ecological, consumptive, intrinsic, recre-
ational. scientific, economic, aesthetic, and educational
values ol such injured or destroyed resources. The com-
pensation schedule takes into account:
{a) The volume ol Ihe discharge.
(b| The characteristics of Ihe poNufanf discharged.
The toxicity, dispersibilily. soluhility. and persistence
characteristics pi a pollutant as atlects Ihe seventy ol
Ihe ellecls on the receiving environment, living things.
1036
S. 376.121
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 376,121
and recreational and aesthetic resources. Pollulants
have varying propensities lo injure natural resources
based upon their potential exposure and ellects. Expo-
sure lo natural resources is determined by Ihe dispersi-
bifity and degradabrlity of the pollutant Effects lo natu-
ral resources result Irom mechanical injury and toxicity
and include physical contamination, smothering, feed-
ing prevention, immobilisation, respiratory distress,
direct mortality, lost recruitment ol larvae and juveniles
kitted, changes tn the food web. and chronic effects of
sublethal levels of contaminates in tissues or the envi-
ronment. For purposes ol Ihe compensation schedule,
pollulants have been ranked lor their propensity to
cause injury to natural resources based upon a combina-
tion of their acute toxicity, mechanical injury, degrada-
bilily. and dispersibility characteristics on a t-to-3 rela-
tive scale with Category I containing the pollulants wilh
Ihe greatest propensity lo cause injury to natural
resources. The lollowing pollutants are categorized:
t. Category I: bunker and residual luel.
2. Category 2: waste oils, crude oil. lubricating oil.
asphalt, and tars.
3. Category 3: hydraulic fluids, numbers I and 2
diesel fuels, healing oil. jet aviation luels. motor gasoline,
including aviation gasoline, kerosene, stationary turbine
luels. ammonia and ils derivatives, and chlorine and ils
derivatives.
The department shall adopl rules establishing (he pollu-
tant category of pesticides and olher pollutants as
defined in s. 376.03\{ 14) arid not listed In paragraph
<2Kt>|.
(c) The lype and sensitivity ol natural resources
affected by a discharge, determined by Ihe following
lactors:
1. The location of a discharge. Inshore discharges
are discharges lhat occur within.walers under ihe juris-
diction ol Ihe department and within an area extending
seaward from ihe coastline of the state to a point f stat-
ute mile seaward of the coastline. Nearshore discharges
are discharges that occur more lhan 1 statute mile, but
within 3 statute miles, seaward of Ihe coastline. Offshore
discharges are discharges lhat occur more than 3 stat-
ute miles seaward ol Ihe coastline.
2. The location ol Ihe discharge with respeel to spe-
cial management areas designated because ol their
unique habitats; living resources; recreational use; aes-
thetic importance; and olher ecological, educational,
consumptive, intrinsic, scientific, and economic values
of Ihe natural resources located therein. Special man-
agement areas are state parks; recreation areas;
national parks, seashores, estuarine research reserves,
marine sanctuaries, wildlile refuges, and national estu-
ary program water bodies; stale aquatic preserves and
reserves: classified shelllish harvesting areas; areas of
critical stale concern: federally designaled critical habi-
tat for endangered or threatened species; and outstand-
ing Florida waters.
3. The arealor linear extent of Ihe natural resources
impacted.
(3) Compensation lor damage lo natural resources
for any discharge of less lhan 25 gallons ol gasoline or
diesel luel shall be $50.
(4) Compensation schedule:
(a) The amount of compensation assessed under
Ihis schedule is calculated by: multiplying St per gallon
or ils equivalent measurement of pollutant discharged,
by Ihe number ol gallons or ils equivalent measurement,
times the location ol Ihe discharge (actor, limes the spe-
cial management area factor.
(b) Added to the amount obtained in paragraph (a)
is Ihe vatue ol Ihe observable natural resources dam-
aged. which i9 calculated by multiplying the areal or lin-
ear coverage of impacted habitat by Ihe corresponding
habitat factor, times (he special management area fac-
tor.
(c) The sum ol paragraphs (a) and (b) is then multi
plied by the pollutant category laclor.
(d) The final damage assessment ligure is the sum
of the amount calculated in paragraph (c) plus Ihe com-
pensation lor death ol endangered or threatened spe-
cies, plus the cost of conducting the damage assess-
ment as determined by the department.
(5Xa) The factors used in calculating the damage
assessment are:
1. Location ol discharge factor.
a. Discharges lhat originate inshore have a factor of
eight. Oscharges (hat originate nearshore have a factor
ot live. Discharges that originate ollshore have a factor
of one.
b. Compensation lor damage to natural resources
resulting from discharges that originate outside ol state
waters bul that traverse the state's boundaries and
therefore have an impacl upon Ihe stale's natural
resources shall be calculated using a location factor of
one.
c. Compensation for damage lo natural resources
resulting from discharges of less than 10.000 gallons of
poftutants which originate within 100 yards of an estab-
lished terminal lacitity or point ol routine pollutant trans-
fer In a designated port authority as defined in s. 315.02
shall be assessed a location factor of one.
2. Special management area factor: Discharges
that originate in special managemenl areas described in
subparagraph (2Xc)2. have a laclor ol two. Discharges
lhat originate outside a special management area
described in subparagraph (2Xc)2. have a location fac-
tor of one. For discharges thai originate outside of a spe-
cial managemenl area but impacl (he natural resources
within a special management area, the value ol the natu-
ral resources damaged within the area shall be multi-
plied by the special management area factor of I wo.
3. PoJlulanl category laclor: Discharges ol category
1 pollulants have a factor ol eighl. Discharges of cate
gory 2pollutants have a laclor ol lour Discharges ol cat-
egory 3 pollulants have a lactor ol one.
4. Habitat factor: The amount ol compensation lor
damage lo Ihe natural resources of the stale is estab-
lished as follows:
a. $10 per square fool of coral reel impacted.
b. $1 per square foot ol mangrove or seagrass
Impacted.
c. $1 per linear loot ol sandy beach impacted.
d. $0.50 per square loot of live bottom, oyster reefs,
worm rock, perennial algae, sallmarsh. or Ireshwater
tidal marsh impacted.
1037
-------
»¦ 376.181
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
•- 376.121
e $005 per square loot ol sand bottom or mud
flats, or combination thereof, impacted.
(b) The areal and linear coverage ol habitat
impacted sha# be determined by the department using
a combination ol field measurements, aerial phologram-
metry. and satellite imagery. An area is impacted when
the pollutant comes in contact with the habitat.
(6) It is understood that a pollutant will, by its very
nature, result in damage to the llora and launa ol the
waters ol the stale and the adjoining land. Therefore,
compensation lor such resources, which is dilficutl to
calculate, is included in the compensation schedule. Not
included, however, in this base figure is compensation
lor the death of endangered or threatened species
directly attributable to the pollutant discharged. Com-
pensation tor the death of any animal designated by rule
as endangered by the Florida Game and Fresh Water
Fish Commission is $10,000 Compensation for the
death of any animal designated by rule as threatened by
the Florida Game and Fresh Water Fish Commission is
(5.000. These amounts are no) intended to reflect the
actual value of said endangered or threatened species,
but are included lor the purposes ol this section.
(7) The owner or operator of the vessel or facility
responsible lor a discharge may designate a representa-
tive or agent to work with the department in assessing
the amount of damage to natural resources resulting
from the discharge.
(8) When assessing the amount ol damages to natu-
ral resources, the department shall be assisted by repre-
sentatives ol the Department of Environmental Regula-
tion. it requested by the department, as wed as other
stale agencies and local governments which would
enhance the department's damage assessment. The
Game and Fresh Water Fish Commission shaP assist the
department in the assessment of damages to wildtile
impacted by a pollutant discharge and shall assist the
department in recovering the costs of such damages.
(9) Compensation for damage resulting from the dis-
charge ol two or more pollutants shall be calculated for
the volume of each pollutant discharged. If the separate
volume lor each pollutant discharged cannot be deter-
mined. the highest multiplier for the pollutants dis-
charged shall be applied to the entire volume ol the spin.
Compensation lor commingled discharges that contact
habitat shall be calculated on a proportional basis of dis-
charged volumes. The highest multiplier lor such com-
mingled pollutants may only be applied it a reasonable
proportionality of the commingled pollutants cannot be
determined at the point ol any contact with natural
resources.
(10) For discharges of more than 30.000 gallons, the
department shall, in consultation with the Game and
Fresh Water Fish Commission and I he Department ol
Environmental Regulation, adopt rules by July 1. 1994,
lo assess compensation tor the damage to natural
resources based upon the cost ol restoring, rehabitilal-
ing, replacing, or acquiring the equivalent of I he dam-
aged natural resources: the diminution in the value ol
those resources pending restoration: and the reason-
able cost ol assessing Ihose damages. The person
responsible lor a discharge shall be given an opporlu
nily lo consult with the department on the assessment
design and restoration program.
(a) For discharges greater than 30,000 gallons, the
person responsible has the option lo pay the amount ol
compensation calculated pursuant lo the compensation
schedule established in subsection (4) or pay the
amount determined by a damage assessment per-
formed by the department. II the person responsible lor
the dischaige elects lo have a damage assessment per
lormed. then such person shall nolily the department in
writing of such decision within 15 days alter the discov
ery ol the discharge. The decision to have a damage
assessment performed to determine compensation (or
a discharge shall be linal: I he person responsible lor a
discharge may nol later elect lo use the compensation
schedule lor computing compensation. Failure lo make
such notice shall result in Ihe amount of compensation
for Ihe total damage lo natural resources being calcu-
lated based on the compensation schedule. The com-
pensation shall be paid wilhtn 90 days alter receipt of a
written request trom the department.
(b) In Ihe event Ihe person responsible for a dis-
charge greater than 30.000 gallons elects to have a dam-
age assessment performed, said person shall pay lo Ihe
department an amount equal to Ihe compensation cal
culated pursuant to subsection (4) lor Ihe discharge
using a volume ol 30.000 gallons. The payment shall be
made within 90 days after receipt ol a written request
from Ihe department.
(c) After completion ol Ihe damage assessment. Ihe
department shad advise the person responsible for Ihe
discharge of Ihe amount of compensation due to the
slate. A credit shall be given for the amount paid pursu-
ant lo paragraph (b). fcaymenl shall be made within 90
days after receipt of a written request from Ihe depart-
ment. In no event shall Ihe total compensation paid pur-
suant lo I his section be less than the dollar amount cal-
culated pursuant to paragraph (b).
(11 Ma) Moneys recovered by the department as com
pensation for damage lo natural resources shall be
expended only lor Ihe following purposes:
t. To Ihe maximum extent practicable, the restora-
tion of natural resources damaged by the discharge lor
which compensation is paid.
2. Restoration of damaged resources.
3. Developing restoration and enhancement tech-
niques lor natural resources.
4. Investigating methods for improving and refining
techniques tor containment, abatement, and removal of
pollutants from the environment, especially from man-
grove forests, corals, seagrasses. benthic communities,
rookeries, nurseries, and other habilals which are
unique to Florida's coastal environment.
5. Developing and updating the 'Sensitivity ol
Coastal Environments and Wildtile lo Spitted Oil in Flori
da' atlas.
6 Investigating the long-term ellecls ol pollutant
discharges on natural resources, including pelagic
organisms, critical habitats, and marine ecosystems.
7. Developing an adequate wildtile rescue and
rehabilitation program.
8. Expanding and enhancing llw? stale's polluticii
prevenlion and control odnc.ilnin gruijMin.
1038
9. 376.121
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
«. 376.30
9. Restoring natural resources previously impacted
by pollutant discharges, but never completely restored.
10. Funding alternative projects selected by Ihe
Board ol Trustees ol Ihe Internal Improvement Trust
Fund. Any such project shall he selected on Ihe basis
ol its anticipated benefits lo the marine natural
resources available lo llw? residents ol this slate who
previously benelileil lioni Ihe injured or deslioyed non-
resloralile natuial resources.
(b) All interest earned Ironi investment ol moneys
recovered by Ihe department lor damage to natural
resources shall be expended onty lor Ihe activities
described in paragraph (a).
(c) The person or parlies responsible tor a discharge
for which Ihe department has requested compensation
lor damage pursuant lo this section shall pay the depart-
ment . within 90 days alter receipt ol the request, the
entire amount due lo the stale. In the event thai payment
is nol made wilhin the 90 days. Ihe person or parties are
liable for interest on the outstanding balance, which
interest shall be calculated al Ihe rate prescribed under
s 55.03
(12) Any determination or assessment of damage lo
natural resources lor the purposes of this section by the
department in accordance with the compensation sec-
tions or in accordance with Ihe rules adopted under sub-
section (10) shall have the torce and effect ol rebuttable
presumption on behall of the department in any adminis-
trative or judicial proceeding.
(13) There shall be no double recovery under this law
lor natural resource damage resulting Irom a discharge,
including Ihe costs ol damage assessment or restora-
tion. rehabilitation, replacement, or acquisition lor the
same incident and natural resource. The department
shad meet with and develop memoranda of understand-
ing with appropriate federal trustees as defined in Pub.
L. No. 101-380 (CM Pollution Act ol 1990) lo provide fur-
ther assurances ol no double recovery.
(14) The department must review Ihe amount ol com-
pensation assessed pursuant to Ihe damage assess-
ment formula established in INs section and report its
findings to Ihe 1995 Legislature. Thereafter, Ihe depart-
ment must conduct such a review and report ils findings
to the Legislature biennially.
(15) The department shall adopt rules necessary or
convenient lor carrying out the duties, obligations, pow-
ers. and responsibilities set lorth in this section.
IVlWf.-t 19. eti 90-S4. a 7. ch 97-113
•376.163 Pollutant Discharga Technical Advisory
Council.—
(1) There is hereby established Ihe Pollutant Dis-
charge Technical Advisory Council.
(2) The council shall advise the Department ol Natu-
ral Resources and the Department ol Environmental
Regulation in Ihe implemenlalion ol Ihe recommenda-
tions ol Ihe Dischaige Response Task Force and other
mailers relating lo pollution control and response.
(3) The council shall be appointed by the executive
diieclor ol Ihe Department ol Natural Resources and
shall be chaired by Ihe executive director or his desig-
nee. Meetings shall be held at Ihe call ol Ihe chairman,
hut al leasl quarterly
(4) The council shaP be composed ol, but nol limited
to. representatives of Ihe following interests: shipping,
bimkering. terminal facilities and ports, environmental,
port pilots, wildlife recovery, spillage control coopera
lives, Ihe community coOege system, the Game and
Fresh Water Fish Commission, and the Department ol
Environmental Regulation.
(5) Each task force member shall be entitled lo
receive per diem and expenses lor travel, as provided
in s. 112061. while carrying oul ollicial business ol Ihe
council.
HHW*f—» It. K. <* *>-W: » s. t* »!-«». • 10 a 91-1II
'Mow. Octobm I. 7000. PWMnt 10 1 78. C* fl0-W and lh» PoftjIM
So« r«CMC« AtfMMVT Cow** tt MtMdUM pu(lu«m lo « H«ll
376.30 LegMaUve intent with respect to potlutton
ol surface and round water*.—
(1) The Legislature finds and declares:
(a) That certain lands and waters of Florida consti-
tute unique and delicately balanced resources and that
the protection ol these resources is vital lo Ihe economy
ol this stale:
(b) That Ihe preservation ol surface and ground
waters is a matter of Ihe highest urgency and priority, as
these waters provide the primary source for potable
water In this stole: and
(c) That such use can only 6e served elfeclively by
maintaining ihe quality ol stale waters in as dose lo a
pristine condition as possible, taking into account multi-
ple-use accommodations necessary lo provide the
broadest possible promotion of public and private inter-
ests.
(2) The Legislature further finds and declares that:
(a) The storage, transportation, and disposal of pol-
lutants and hazardous substances wilhin the jurisdiction
ol the state and state waters is a hazardous undertaking:
(b) Spills, discharges, and escapes ol pollutants and
hazardous substances that occur as a result ol proce-
dures taken by private and governmental entities involv-
ing the storage, transportation, and disposal ol such
products pose threats ol great danger and damage to
Ihe environment ol the slate, to citizens ol Ihe slate, and
lo other interests deriving livelihood Irom the slate:
(c) Such hazards have occurred in Ihe past, are
occurring now. and present future Ihreats of potentially
catastrophic proportions, aD ol which are expressly
declared lo be inimical lo Ihe paramount interests ol Ihe
slate as set lorth in this section: and
(d) Such state Interests outweigh any economic bur-
dens imposed by Ihe Legislature upon Ihose engaged
in storing, transporting, or disposing ot pollutants and
hazardous substances and related activities.
(3) The Legislature intends by the enactment ol SS.
376.30-376.319 lo exercise Ihe police power ol Ihe stale
by conferring upon the Department ol Environmental
Regulation Ihe power lo:
(a) Deal with Ihe environmental and health hazards
and Ihreats ol danger and damage posed by such stor-
age. transportation, disposal, and related activities:
(b) Require Ihe prompt containment and removal ol
producls occasioned thereby: and
(c) Establish a program which will enable the depart-
ment lo:
1039
-------
B. 376.3i
1992 SUPPLEMENT TO FLOMDA STATUTES 1991
9. 376.301
1. Provide lo* cxpedilious restoration or replace*
rnonl ol polaldc water systems or potable private wells
ol allccled |>ersons where he.illh hazards exist duo lo
conlaminalion Irom pollutants (wbich may irfclude provi-
sion ol bottled water on a temporary basis, after which
a more stable and cnnvenicnl source o! potable water
shall ho provided) nod hazardous substances, subject
lo the following conditions
a I or the purposes of Itiis subparagraph, the Icrm
'restoration* means restoration ol a contaminated pota-
ble water supply In a Invd which meets applicable water
quality standards or applicable water quality criteria, as
adopted by rule, lo< the contaminant or contaminants
present in the water supply, or. where no such stand
aids or criteria have been adopied. lo a level which is
determined to he a sale, potahle lovel by Ihc Stale
I teaMh Ollicer in the Department of Health and Rohab'li
tative Servers. through Ihe installation ol a filtration sys
lem ami piovisiun ol replacement tillers as necessary or
through employment of repairs or another treatment
method or methods designed lo remove or lillc out con
lammalKrii Irom IIkj water supply, and the term "replare
ment* means replacement ol a well or well field or con
neclion lo an alternative source of safe, (potable water
b Tor the purj>oscs of the Inland Proleclion lrusl
fund, such restoration or replacement shaft lake prece
dence over olher uses ol the unobligated moneys wilhin
Ihc limd
c f unding for activities described in Ihis subpara-
graph shall not exceed $10 million for any one county for
any one year, other than for (tie |*ovision ol bottled
water.
rf funding for activities described in litis subpara
graph shall not be available lo fund any increase in Ihe
capacity nf a potable water system or potable private
well ovc the capacity which existed prior lo such resto
ration or replacement, unless such increase is Ihe result
ol th* use of a mo*e cosl-eheclive alternative than other
alternatives available
2 Provide for the inspection and supervision ol
activities described m Ihis subsection; and
3 Guarantee the prompt payment ol reasonable
costs resulting thcrelrorn. includirtg those administrative
cosls incurred by Ihe Dei ?artmcnl ol Health and Hehabil
ilafive Services in providing licfd and laboratory ser-
vices. loxiroiogical risk asr-essinont. and olher services
lo the department in Ihc investigation of drinkrng v/ater
conlamrnaliun complaints
(4) Ihe I egislaturc lurlhcr firxJs and declares that
Ihe preservation ol tho quality ol surface and ground
waters is of prime public interest and concern to the
stale rn promoting its general wellarc. p«evcnttnrj dis
ease, promoting hcallh, and providing lor the public
safely and lhat Ihe inlcresl ol Ihe stale in such preserva
lion outweighs any burdens of bability imposed by Ihc
Legislature upon those persons engaged in stormy pol
lutanls and hazardous substances and related ar.livi
lies
(5) The legislature lurlhcr declares lhat it is the
intent of ss 37G 30 376 319 lo suppoiI and complement
applicable provisions ol Ihe Tedcral Water PolKilion Con-
trol Acl. as amended. spcdlically those provisions rclal
ing lo Ihe national contingency p'an lor removal ol pollu-
lants.
Hltrorr-* • B'-0 fh 86 I'A % l.ch tfi m.
• ? ch v m
376.301 Definitions of terms used In ss. 376.30-
376.319.--WI>cn used in ss 376 30 376 319. unless the
context clearly requires otherwise. Ihe term
(I) 'Abovcground hazardous Substance lank*
means any stationary abnvcqrotitxl storage fank and
onsite integral piping lhal cunlains hazardous sub
slanr.es which arc liquid at sinndord temperature and
picssure and has an irtdividual sloraqe capacity greater
than 110 gallons
(?) "Parrel" means 4? IJ S gallons at 00 degrees f ah
renheil
(3) 'Hulk prodircl larilily* means a constat waterfronl
location v/ith at least nno nlrnvrgrouurl lank with ,»
capacity cjrcaler lhan 30.IXJ0 gailonr. which is used lor
Ihe storage of pollutanls
(4) "(-omjuession vessel" means any stntinnary con
lamer, fank. or onsilo integral |>ipiiM| system, nr combi-
nation thorrol. which has a capacity ol qieater lit.in 110
gallons. Ihat is pwnauly used lo store pollulants m ha/
nrdnus substances al>ove almuspheuc pressure or nl a
reduced lempeiaturc in order to lower Ihe vajxir pres
sure ol the contents Manifold compression vessels thai
lunction as a single vessel shall be considered as one
vessel
(5) *De|)arlmenl* means Ihe Department ol fnviion
menial Regulation
(6) "Discharge* includes, hul is not limited lo, any
spilling, leaking, seeping, pouring, misapplying, emit-
ting. emptying, or dumping ol any pollulanl which
occurs and which aflccls lands and the surface and
ground waters ol Ihe slate nol regulated by ss 376 011-
37G ?\
(7) 'facility* means a nonresirlenlial localion contain-
ing. or which contained, any underground stationary
lank ur lanks which contain hazardous sulv.lanccs or
pollulants and have individual storage capacities
greater than 110 gallons, or any ntxweqround stationary
lank or tanks which contain pollutanls which are liquids
at standard arnbicnl temperature and pressure aitd have
individual storage capacities greater than 5f>0 gallons
Ihis subsection shall nol apply lo facilities covcied by
chapter 3/7. or containers storing solid or gaseous pollu
ilauts. and agricullural lanks having storage capacities
ol less than 550 gallons
(fl) *1 low through process lank" means an above-
ground lank lhal contains hazardous substances or
specified mineral acids as delincd m s 3/6 321 and lhat
lorms an inlegral part ol a production process Ih'rough
which I here is a steady. variaMe. recurring, or mlermit
tent lk)w of materials during the operation ol Ihe.proc-
ess I'low-through process lanks include, but arc not
limiled lo. seat lanks. vapor recovery units, surge lanks.
blend lanks. Iced tanks, check and delay Tanks, batch
tanks, oil-waler separators, or tanks in winch mcchani
cal. physical, or chemical change ol a material is accom
plishcd
(9) 'Hazardous substances* means those sub-
stances dclmed as hazardous substances in Ihe Com-
10-10
' 3,6 30? . 1992 SUPPLEMENT TO FLORIDA STATUTES 199t * 376.302
prehensive Environmental Response. Compensation
;ind I iahrlily Art ol 1000. Pub L No 96-510. 94 Slat.
;»/G/. as amended by the Supcrlund Amendments and
Hraulhou/ahnn Act ol 19K6
(10) Operator* means any |>crson operating a facility,
whether by lease, ci>nliacl, or other loon ol agreeincnl.
[\\) Ownm* mcatr, any poison owning a facility.
(1?) Person" means any individual, partner, joint ven-
luie. or cnqwiatron. any group o' Ihe loregomg. orga-
nized or united lor a business pui|»osc. or any govern-
rnonlal entity
(13) Person in charge" means Ihe person on Ihe
scene wlto is in direct, responsible charge ol a facibly
liom which i>oflutnnts arc discharged, when Oxs dis
cliargc occurs
(14) "Person res|)onsit)lo for conducting silo reha
bcraliH on Ifw reinv
bursenrenl applrcaln)n Mortgage holders and lrusl hold-
ers may be eligible lo pailtopalc in ihe reimbursement
program pursuant lo s 3/6 3071(1?)
(15) "Pelrolcum* includes
(a) Oil. including crude pelrolcum oil aod other
hydrocarbons, regardless of gravity, which are pro-
duced at Ihe well in liquid form by ordinary methods and
which ate not the rcuidl ol condensation ol gas alter it
leaves Ihe reservoir; and
(b) All natural gas. including casinghcad gas. and all
olher hydrocarljons not delmcd as oil in paragraph (a).
(16) "Petroleum jHoducl* means any liquid Kiel com-
modity nude Irurn pelrolcum, including, bul nol limileri
lo. all forms of fuel known or sold as dresel lucl. keio
s?nc. all forms ol tool known or soM as gasoline, and
fuels contacting a mhiure ol gasoline arnl olher prod-
ucts. excluding hquclied petroleum gas and American
frxiftly lor testing anrJ Materials (ASTM) grades no. 5
aiMf no 6 residual oris, Ininkcr C rrr.nfu.il oils, intermcdi
ale lucl oils (lf"0) used for marine bunkering wilh a vis
i osity ol 30 and higher, asphalt oils, and petrochemical
Iredslocks
(17) "Petroleum storage system* means a stationary
lank nol covered under Ihe provisions of chapter 377,
together with any onsite integral |)it>ing or dispensing
system associated llicrewilh. which is used, or intended
to l)e used, lor (he storage or supply ol any petroleum
product Petroleum stoiage systems may also incHrde
oil/walcr separators, and olher podulinn control devices
installed at petroleum product terminals 83 defined in
ihis chapter and txilk product facilities pursuant to, or
required by. perimls or bcsl management practices in
an t'llod lo control surface discharge of pollutanls Noth-
ing heiem shall be construed lo allow a continuing dis-
charge in violation of department rules
(IR) 'Pollutants* includes any 'prorfncl* as defined in
s 3/7 10(11).pestirides.ammonia.chlorine.anddcriva
lives Ihereol, excluding liquefied pelrotnum gas.
(19) 'Pollution' means Hie presence on Ihc land or in
llv; waters ol Ihe slate ol poJIulanls in quanlilics which
are or may be iKitoohatly harmful o» intunous to hunvan
hiMllh or wellarc. animal or planl lilc. or projjerly or
which may unrnasonahly inlerlcre wilh Ihe enjoyment ol
lil«! or piofiedy. including ontdooi recieation
<20) "Response action* means arty activity, including
evaluation, plannrng, design, engineering, construction,
and ancillary services, which rs carried out in response
to any discharge, release, or threatened release ol a haz-
ardous subsfanca, poAutanl, or other contaminant from
a facility or sile identified by Ihe department under Ihe
provisions ol ss 376 30-376 319.
(21) Response action contractor* means a person
who is carrying oul any response action, including a per-
son retained or hired by such person to provide services
relating to a response action.
(22) 'Secretary' means the secretary ol the Depart-
ment ol Environmental Regulation
(23) 'Storage system' means a stationary tank not
covered under Ihe provisions of chapter 377, together
with any onsite integral piping or dispensing system
associated therewith, which is or has been used lor (he
storage or supply ol any petroleum product. |>ollutanl.
or Hazardous substance as defined herein, and which is
registered with tho Department ol Environmental Regu-
lation under this chapter or any rule adopted pursuant
hereto
Mrtorr. -• t«.cr> U-3lO.« 8,c* N-XIM.• u.cft 88 •».« ?.c* 83 180.
I ??. cf» fO S4. • 9 CH 90 9i. • •;.<>> «!-*» t i.ih f7 X
376.302 Prohibited acts; penalties.—
(I) It shall be a violation ol Ihis chapter and it shall
be prohibited lor any reason:
(a) lo discharge pollulanls or hazardous sub-
stances mto or upon the surface or ground waters ol tho
stale or lands, which discharge violates any departmen-
tal 'standard* as delincd in s. 403603(13)
(b) To Jail to obtain any permit or registration
requued by this 'part or by rule, or to violate or lad to
comply wilh any statute, rule, order, permit, tcgiilrafmn,
or ccrlilicaiion adopted or issued by (he department pur-
suant to its tawtul authority.
(c) To knowmgly make any lalse statement, tcpre
sentation, or certification in any application, record.
rcix>rl. filan. or olher document liled or required to be
maintained under Ihis 'part, or lo falsity, tamper with, or
knowingly render inaccuiatfl any monitoring device or
method required lo be maintained under Ihis 'part or by
any permit, registration, rufe, or order issued under ihis
'part.
(2) Except ae provided in s. 376 311, any person
whocommils a violation specified in subsection (1) is lia-
ble tr> the slate lor any damage caused and for civil pen-
alties as provided rn s. 403.141.
(3) Any person who witllully commits a violation
specified in paragraph (1Ka) or paragraph (1)(h) shall bo
guilly of a misdemeanor of Ihe first degree punishable
as provided In ss. 775 08?(4)(a) and 775.0G3(tHg). by a
line ol not tess than $2,500 or mote than $25,000, or pun-
ishable by I year in jail, or by both for each ollensn Each
rfay during any portion of which such violation occurs
constitutes a separate offense.
(4) Any peison who commits a violation specified in
paragraph (t)(c) shall be guilly ol a misdemeanor ol tho
lirsl degree punishabtc as provided in ss 775 00?(4)fa)
and 7 75 0A3( 1 Kg), by a fine ol nol more lhan $10,000.
or l>y 6 n>on1hs in jail. o» by both tor each nttensc
1041
-------
S. 376.302
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 376.303
(5) II is Ihe legislative intent that the civil penalties
and criminal tines imposed by the court be ot such
amount as to ensure immediate and continued compli-
ance with this act.
Mttery.-i 64. ch 83-310. * A. eti 64-136 • 4. ct» 9? S
'iMi. -OiptM 3/61 mi aiam mo p»it
376.303 Powers and duties of the Department of
Environmental Regulation.—
(1) The department has Ihe power and Ihe duly lo:
(a) Establish rules, including, bul not limited lo. con-
struction standards, permitting or registration ol tanks,
maintenance and installation standards, and removal or
disposal standards, to implement Ihe intent ol ss.
376 30-376 319 and lo regulate underground and
aboveground facilities and their onsite integral piping
systems. Such rules may establish standards lor under-
ground facilities which store hazardous substances or
pollutants, and marine fueling facilities and above-
ground facilities, not covered by chapter 377. which
store pollutants. Beginning January 1.1991. Ihe depart-
ment shall register buBt product facilities and shall issue
annual renewals ol such registrations. Requirements lor
facilities with underground storage tanks having storage
capacities over 110 gallons that store hazardous sub-
stances shall not be effective unl9 January 1,1991. The
department shall maintain a compliance verification pro-
gram lor Ihis section, which may include investigations
or inspections lo locate improperly abandoned tanks
and which shall be implemented upon termination ol Ihe
Early Detection Incentive Program established under s.
376.3071(9) or December 31,1987, whichever is earlier.
The department may contract with other governmental
agencies or private consultants lo perlorm compliance
verification activities. The contracts may provide lor an
advance ol working capital lo local governments lo
expedite the implementation ol the compliance verifica-
tion program. Counties with permit or registration lees
lor storage tanks or storage tank systems are no! eligi-
ble lor advance funding lor Ihe compliance verification
program.
(b) Establish by rule a registration lee schedule lor
all storage systems regulated under Ihis acl sullicient to
cover all costs associated with registration.
1. Revenues derived Irom lees imposed upon
petroleum storage systems shall be deposited In Ihe
Inland Protection Trust Fund. All other revenues derived
Irom such lees shaU be deposited into Ihe Water Oualily
Assurance Trust Fund.
2. The lee schedule shall provide as loDows
a. For new facilities, an initial registration lee ol $50
per tank is due and payable within 30 days alter receipt
ol notification by the department.
b. For lacililies at which tanks are replaced, a lank
replacement lee ol S25 per lank is due and payable
within 30 days alter receipt ot noiilication by Ihe depart-
ment.
c. An annual renewal lee ol $25 per lank is due and
payable by July 1 ol each year, except lhal stationary
tanks ol 110 gallons or less al nonresidential locations
and agricultural tanks ol 550 gallons or less shall not be
assessed Ihe lee.
d. Any payment made more than X days alter Ihe
dale it is due is delinquent and Ihe registrant must pay
an additional lee ol $20 lor each lank with respect lo
which any payment is delinquent.
e. Bulk product facilities shall be assessed a regis-
tration lee and an annual renewal fee nol lo exceed
SI.000 per tank.
3. The department may also assess tees retroac-
tively against late registrants lor tanks lor which a regis-
tration lee should have been paid beginning on or alter
July 1. 1986. Annual registration lees lor all regulated
tanks shall continue lo accrue forward Irom the dale ol
registration until tank removal or closure Payment is due
within X days ol receipt ol noiilication by the depart
menl.
4. The department shall nolily each registrant ol
Ihe annual lee requirement no later than June 1 ol each
year. Fees are due and payable by July 1. For'each regu-
lated facility registered with tlx? department under this
Section, a registration placard shall be issued to Ihe
tank's owner listing the number ol tanks registered and
Ihe amount ol registration lees paid, lo be displayed in
plain view al Ihe office, kiosk, or other suitable location
at Ihe facility where the tanks are located.
(c) Establish a registration program lor aboveground
hazardous substance tanks and compression vessels.
1. Owners or operators shall register their tanks
and vessels with Ihe department by December 31.1992,
pay Initial registration lees by July 1. 1993. and pay
annual renewal registration fees by July 1. 1994, in
accordance with the requirements of Ihis subsection.
Flow-through process lanks. liquefied petroleum gas
tanks, hydraulic till tanks, electrical equipment tanks,
storage lanks containing hazardous wastes as defined
under Subtitle C of Ihe Resource Recovery and Conser-
vation Acl. stormwater lanks. wastewater collection or
discharge systems, or storage lanks located entirely
within a building or portion ol a building with an impervi-
ous floor lhal contains no valves or drains lhal would
allow a discharge Irom Ihe system are nol required lo
register. Pollutant lanks required to be registered under
s. 376 303(1 Mb) or s. 376.323 shall nol be required lo be
registered under this paragraph. The department shall,
whenever possible, accept electronically transmitted
registration data.
2. Registration lees —
a. Owners ol lanks or vessels shall submit to Ihe
department an initial registration lee nl $50 per lank or
vessel. The' lee shall be paid wilhtn 30 days alter receipt
of billing by the department.
b. Owners ol lanks or vessels shall submit an
annual renewal registration fee of $25 per lank or vessel
wilhin 30 days alter receipt ol billing Irom the depart-
ment.
c. Total annual registration lees lor initial lees or
renewals shaU nol exceed $2,500 per facility
d. Revenues derived Irom such lees shall be depos
ited into the Water Oualily Assurance Trust Fund
(d) Estatitish a technical advisory committee com-
posed ol knowledgeable participants Irom Ihe depart-
ment, local governments, regulated industries, and envi-
ronmental interests lor the purpose ol recommending
legislation lor the regulation ol aboveground storage
1042
S. 376.303
». 376.305
lank systems and compression vessels containing haz-
ardous substances and pollutants.
(e) Submit proposed legislation lo Ihe President ol
the Senate and the Speaker ol the House ol Representa-
tives by .lanuary I. 1994
(I) Provide lor Ihe development and implementation
ol criteria and plans lo prevent and meet occurrences
ol pollution nl various kinds and degrees.
(g) Esliihlish a requirement lhal any facility covered
by this acl r>e subject lo complete and thorough inspec-
tions al reasonable times. Any facility which has dis-
charged a pollutant in violation ol Ihe provisions ol ss.
376 30-376 319 shall be lully and carefully monitored by
Ihe department lo ensure lhal such discharge does not
continue lo occur.
(h) Keep an accurate record ol Ihe costs and
expenses incurred lor the removal ot prohibited dis-
charges and. except as otherwise provided by law,
I hereafter diligently pursue Ihe recovery ol any sums so
incurred Irom Ihe person responsible or Irom Ihe United
Stales Government under any applicable lederal act.
unless Ihe department linds Ihe amount Involved too
small or Ihe likelihood ol recovery loo uncertain.
(i) Bring an action on behalf ol Ihe stale lo enforce
Ihe liabilities imposed by ss. 376.30-376.319. The provi-
sions ol ss. 403.121, 403.131. 403.141. and 403.161
apply to enforcement under ss. 376.3Q-376.319.
(2) The powers and duties ol the department under
ss. 376.30-376.319 shall extend lo Ihe land mass ol the
slate nol described In ss. 376011-376.21.
(3Xa) The department may inspect the installation ol
any pollutant storage tank. Any person installing a pollu-
tant storage tank, as defined in s. 489.133. shall certify
that such installation is in accordance with the stand-
ards adopted pursuant lo this section. The department
shall promulgate a lorm lor such certilication which shad
al a minimum include:
1. A signed statement by the certified pollutant
storage systems specially contractor, as defined in s.
489.133. lhal such installation is in accordance with
standards adopted pursuant to Ihis section; and
2. Signed statements by Ihe onsite persons per
lorming or supervising Ihe installation ol a pollutant stor-
age lank, which statements shall be required ol tasks
thai are necessary lor Ihe proper installation ol such
tank.
(b)1. The department shall, lo Ihe greatest extent
possible, contract with local governments lo provide lor
Ihe administration ol its responsibilities under this sub
section. Such contracts may allow lor administration out-
side Ihe jurisdictional boundaries ol a local government
However, no such contract shall be entered Into unless
Ihe local government is deemed capable ol carrying out
such responsibilities lo the satisfaction ol Ihe depart-
ment.
2. To Ihis end. Ihe department shall inloim local
governments as lo the provisions ol Ihis section and as
lo Iheir options hereunder. Al ils option, any local gov
emmenl may apply lo Ihe department lor such purpose
on lorms to be provided by Ihe department and shaU
supply such information as Ihe department may require.
(c) The department may enjoin Ihe tnslaOalion or use
ol any pollutant storage lank lhal has been or is being
installed in violation ol Ihis seclion or ol s. 469.133.
(d) No new or replaced lanks at bulk product facili-
ties may be put into service or filled with pollutants until
Ihe facility has been inspected by Ihe department and
determined to be in compliance with department rules
adopted pursuant to Ihis chapter. During routine compli-
ance inspections, the department will verily lhal a facility
has been issued a current spill prevention and response
certificate Irom the Department ol Natural Resources.
(4) The department may require a properly owner lo
provide site access lor activities associated with con-
lamination assessment or remedial action. Nothing
herein shall be construed to prohibit an action by Ihe
property owner lo compel restoration ol his properly or
to recover damages Irom the person responsible lor the
polluting condition requiring assessment or remedial
action activities.
I M. cn O-llOl ale* W-XB. • II. d> e»-IS» 1 J. d> »-J7«:
¦ ir.ci> mu ¦ i.0i n-ni i i.a 19-it) 13 c* n-m • ri ch 90-w
• S.ck tt-30
976.305 Removal el prohibited discharges.—
(1) Any person discharging a pollutant as prohibited
by ss. 376.30-376.319 shad immediately undertake lo
contain, remove, and abate Ihe discharge lo Ihe satis-
faction ol Ihe department. However, such an undertak-
ing to contain, remove, or abate a discharge shall not be
deemed an admission ol responsibility lor the discharge
by the person taking such action. Notwithstanding Ihis
requirement, the department may undertake Ihe
removal ol Ihe discharge and may contract and retain
agents who shaU operate under the direction ol the
department.
(2) II the person causing Ihe discharge, or Ihe per-
son In charge ol facilities al which Ihe discharge has
laken place, fails lo act Immediately, Ihe department
may arrange lor Ihe removal ol Ihe pollutant; except
thai, il the pollutant was discharged into or upon Ihe
navigable waters ol Ihe United Slates, the department
shal acl in accordance with Ihe national contingency
plan lor removal ol such poHutanl as established pursu-
ant lo Ihe Federal Water Pollution Control Act. as
amended, and Ihe costs ol removal incurred by Ihe
department shall be paid In accordance with Ihe appli-
cable provisions of that law. Federal funds provided
under thai act shad be used lo the maximum extent pos-
sible prior lo Ihe expenditure ol slate lunds
(3) No action taken by any person lo contain or
remove a discharge, whether such action is laken volun-
tarily or at Ihe request ol Ihe department or ils designee,
shaU be construed as an admission ol liability loi the dis-
charge.
(4) No person wt o, voluntarily or at the request ol
Ihe department or its designee, renders assistance in
containing or removing any pollutant shaD be liable lor
any civil damages lo third parties resulting solely Irom
Ihe acta or omissions ol such person in rendering such
assistance, except lor acts or omissions amounting lo
gross negligence or wifllul 'misconduct
(5) Nothing in ss. 376.X-376.319 shall alfect Ihe
right ol any person lo render assistance in containing or
removing any pollulanl or any rights which that person
1043
-------
». 376.30S 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 376.307
may have against any third party whose acts or omis
sions in any way have caused or contributed to the dis-
charge ol the pollutant.
(6) Any person who:
(a) Is not liable for a discharge ol pollutants under s.
376 302; or
(b) Can establish a defense under s. 376.308; and
(c) Is not eligible lor a cleanup program under s.
376 305(7). s. 376.3071. or s. 376.3072.
who renders assistance in containing or removing any
pollutant may be eligible for reimbursement ol the cost
of containment or removal in accordance with applicable
reimbursement provisions and rules, provided such
assistance is conducted in accordance with applicable
rules relating to cleanup and the department grants prior
approval ol reimbursement The department shall not
unreasonably withhold such approval. The department
shall, upon petition and tor good cause shown, wave the
prerequisite lor prior approval. The cost sharing and
deductible provisions ol s. 376.3072(2Xe) shall not apply
to a reimbursement request made pursuant to this sub-
section.
(7) The Legislature created the Abandoned Tank
Restoration Program in response to the need to provide
financial assistance lor cleanup of sites that have aban-
doned petroleum storage systems. For purposes of Ihis
subsection the term 'abandoned petrofeum storage sys-
tem* shall mean any petroleum storage system that has
not stored petroleum products lor consumption, use. or
sale since March 1,1990. The department shall establish
the Abandoned Tank Restoration Program to facilitate
the restoration of sites contaminated by abandoned
petroleum storage systems.
(a) To be included in the program:
1. An application must be submitted to the depart-
ment by June 30. 1992. certifying that the system has
no I stored petroleum products lor consumption, use, or
sale at the facility since March 1. 1990.
2. The owner or operator of (he petroleum storage
system when it was in service decided not to continue
in business for consumption, use. or sale ol petroleum
products at that facility.
3. The site is nol otherwise eligible for the cleanup
programs pursuant to s. 376.3071 or s. 376.3072.
(b) In order to be eligible lor the program, petroleum
storage systems Uom which a discharge occurred must
be closed in accordance with department rules prior to
an eligibility determination.
(c) Sites accepted in the program will be eligible lor
reimbursement ol cleanup costs as provided in s.
376.3071(12) unless the owner or operator certifies to
the department in writing that he qualifies as a small
business under s 286.703(f) or a corporation nol lor
profit under chapter 617.
(d) The following sites are excluded:
1. Siles on property ol the Federal Government;
2. Sites contaminated by pollutants that are not
petroleum products; or
3 Sites where the department has been denied
site access.
(e) Participating siles are subject lo a deductible ns
determined by rule, nol to exceed $25,000
M*toqr.-f fU.ch ersons at any lime causing or having caused the dis-
charge or from Ihe Federal Government, jointly and sev-
erally. all sums owed or expended from the fund, pursu-
ant lo s. 376 308, except that the department may
decline lo pursue such recovery il it finds the amount
involved loo small or the likelihood ol recovery too uncer-
tain Sums recovered as a result ol damage due to a dis
charge ol a pollutant or olher simitar disaster shall be
apportioned between the fund and the General Revenue
Fund so as lo repay Ihe lull costs to Ihe General Reve-
nue Fund ol any sums disbursed therefrom as a result
of such disaster. Any request for reimbursement to Ihe
fund for such costs, if not paid within 30 days ol
demand, shall be turned over to the department lor col-
lection.
(6) Moneys in Ihe fund which are not needed cur-
rently to meet the obligations of the department in the
exercise ol its responsibilities under ss. 376.30-376.319
shaft be deposited wilh the Treasurer to Ihe credit ol the
fund and may be invested in such manner as is provided
for by statute. The interest received on such investment
shall be credited lo the fund. Any provisions of law to the
contrary notwithstanding, such interest may be freely
transferred between Ihis trust fund and the Inland Pro-
tection Trust Fund. In the discretion of the department.
(7) Except as otherwise provided by law. il is the
duty ol the department in administering the fund dili-
gently to pursue Ihe reimbursement to the lund of any
sum expended from the fund for cleanup and abatement
in accordance with the provisions ol this section, unless
the department finds the amount involved too small or
the likelihood ol recovery too uncertain. For the pur-
poses of s. 95.11. Ihe limitation period within which to
institute en action to recover such sums shall com-
mence on the fast date on which arty such sums were
expended, and not the date that the discharge occurred.
Mrtwv.-a 04.01 83-310. > 3. eh 63-3S3.* 10. eh « 3 n Jf ef>
80-119. • 82. <*» 66-163. • 4. et» 06-393. * 9. eft 89-in. • ch 90-331. •
14. ch 91-305. • 5, ch W-FS
•Hot®.— SutoWuta)by lt« ffttontof •n*«nnc> to i 376 11(3X3) tocentom lo
N)wbK*<0 mctiMMd bir n 1 i md M. di 66-159
376.3071 Inland Protection Trust Fund; creation;
purposes; funding.—
(1) FINDINGS.—In addition to the legislative findings
set forlh in s. 376.30. the Legislature finds and declares:
(a) That significant quantities of petroleum and
petroleum products are being stored in underground
storage systems in this stale, which storage is a hazard-
ous undertaking;
(b) That spills, leaks, and olher discharges Irom
such storage systems have occurred, are occurring, and
will continue to occur and that such discharges pose a
significant threat to (ho quality of Ihe groundwaters and
inland surface waters of this state;
(c) That, where contamination of the ground or sur-
face water has occurred, remedial measures have often
been delayed lor long periods while determinations as
to liability and Ihe extent of liability are made and thai
such delays result in the continuation and intensification
ol the threat to the public health, salety. and wetlare; in
greater damage to the environment; and in significantly
higher costs to contain and remove Ihe contamination;
and
(d) That adequate financial resources must be read-
ily available lo provide lor the expeditious supply of sale
and reliable alternative sources ol polable waler lo
affected persons and lo provide a means for investiga-
tion and cleanup of contamination sites wiihoul delay.
(2) INTENT AND PURPOSE —II is Ihe intent ol the
Legislature lo establish the Inland Protection Trust Fund
lo serve as a repository for lunds which will enable Ihe
1045
-------
s. 376.3071
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
»¦ 376.3071
department to respond without delay to incidents ol
inland contamination related to the storage ol petroleum
and petroleum products in order lo protect the public
health, salely, and wellare and lo minimize environmen-
tal damage.
(3) CREATION —There is hereby created the Inland
Protection Trust Fund, hereinafter relerred lo as the
"lund," lo be administered by the department. This lund
shall be used by the department as a nonlapsing revoiv
ing lund lor carrying out the purposes ol this section and
s. 3763073. To this lund shall be credited an penalties,
judgments, recoveries, reimbursements, loans, and
other lees and charges related lo I he implementation ol
this section and s. 376.3073 and the excise lax revenues
levied, collected, and credited pursuant to ss.
206 9935(3) and 206.9945(1 He). Charges against the
lund shall be made in accordance with the provisions ol
this section.
(4) USES —Whenever, in its determination, inci-
dents ol inland contamination related lo the storage ol
petroleum or petroleum products may pose a threat lo
the environment or the public health, salely, or wellare,
the department shall obligate moneys available in the
lund lo provide lor:
(a) Prompt investigation and assessment ol contam
inalion sites;
(b) Expeditious restoration or replacement ol pota-
ble water supplies as provided in s. 376.30(3Kc)1
(c) Rehabilitation ol contamination sites, which shall
cunsist ol cleanup ol allected soil, groundwater, and
inland, surlace waters, using (he most cost-elleclive
alternative that is technologically leasible and reliable
and that provides adequate protection ol the public
health, salely, and wellare and minimizes environmental
damage, in accordance with the sile selection and
cleanup criteria established by the department under
subsection (5). except thai nothing herein shall be con-
strued to authorize Ihe department lo obligate lunds lor
payment ol costs which may be associated with, but are
not integral lo, site rehabilitation, such as Ihe cost lor
retrofitting or replacing polroleum storage systems;
(d) Maintenance and monitoring ol contamination
sites;
(e) Inspection and supervision ol activities
described in this subsection;
(I) Payment ol expenses incurred by Ihe depart-
ment in its ellorls to obtain Irom responsible parlies the
payment or recovery ol reasonable costs resulting Irom
Ihe activities described in this subsection;
(g) Payment ol any other reasonable costs ol admin-
istration. including those administrative costs incurred
by Ihe Department ol Health and Rehabilitative Services
in providing lield and laboratory services, toxicological
risk assessment, and other assistance lo Ihe depart
ment in Ihe investigation ol drinking water contamination
complaints and costs associated with public information
and education activities;
(h) Establishment and implementation ol Ihe compli-
ance verification program as authorized in s.
376 303(1)(a). including contracting with local govern
menls or stale agencies lo provide lor the administration
ol such program through locally administered programs,
to minimize the potential lot lurlher contamination silos;
(i) Funding ol the provisions ol ss. 376 305(7) and
3763072;
. (j) Activities related to removal and replacement ol
petroleum storage systems, exclusive ol costs ol any
tank, piping, dispensing unit, or related hardware, il
such activities aie justified in an approved remedial
action plan lor sites al which sile restoration is being
completed pursuant to subsection (12):
(k) Activities related lo reimbuisemenl application
preparation and activities related lo reimbursement
application examination by a certified public accountant;
(I) Reasonable costs ol restoring property as nearly
as practicable lo the conditions which existed prior to
activities associated with contamination assessment or
remedial action taken under s. 376 303(4); and
(m) The Inland Protection Trust Fund may only be
used lo lund Ihe activities in ss. 376.30-376 319.
Nothing in this subsection shall authorize the use ol Ihe
Inland Protection Trust Fund lor cleanup ol contamjna-
lion caused primarily by a discharge ol solvents as
delined.in s. 206.9925(6). or polychlorinated biphenyts
when their presence causes them to be hazardous
wastes, except solvent contamination which is Ihe result
ol chemical or physical breakdown ol petroleum prod-
ucts and is otherwise eligible. Facilities used primarily
lor Ihe storage ol motor or special luels as delined in ss.
206.01(13) and 206 86(1) shall be presumed not lo be
excluded Irom eligibility pursuant lo this section. To
assure Ihe availability ol sufficient unencumbered lunds
to pay reimbursement requests, the department may
not utilize more than $61 minion annually tor slate-
conducted cleanups, compliance inspections, adminis-
trative stall, and miscellaneous uses associated with Ihe
provisions ol ss. 376.30-376.319. However, il Ihe depart-
ment determines at the end ol a fiscal year that reim-
bursement applications were submitted at an average
rate ol less lhan $5 million per monlh lor thai fiscal year,
and if. after satisfaction of water supply restoration com-
mitments and payment ol reimbursement applications
which are liled and sullicienl. Ihe unencumbered bal-
ance ol Ihe Inland Protection Trust Fund is more lhan
$50 million, the department may exceed Ihe $61 million
limitation by up lo 25 percent lor the next fiscal year.
(5) SITE SELECTION AND CLEANUP CRITERIA -
(a) The department shall adnpl rules to establish pri-
orities lor slate-conducted cleanup al petroleum con-
lamination sites based upon laclors that include, but
need not be limited lo:
1. The degree to which human health, safety, or
wellare may be allected by exposuie to Ihe conl.nnina-
lion;
2. The size ol the population or area allected by Ihe
contamination;
3 The present and future uses ol Ihe allected aqui
ler or surlace waters, with particular ronsirlcratiori as to
the probability thai Ihe contamination is substantially
allecling, or will migrate lo ami substantially allool. a
known public or pnvale smiicc ol pnlalile water; and
4 I he ellecl ol Ihe coiil.iinin.ihon on the environ-
ment.
1046
1992 SUPPLEMENT TO FLOW IDA STATUTES 1991
». 376.3071
Moneys in Ihe lurtd sliall then be obligated lor activities
descitlwd in paragraphs (4)(a)-(e) at individual sites in
accordance wilh such established criteria. However,
nothing in IIus paragraph shall be construed lo restrict
Ihe department Irom modifying the priority status ol a
reliatiilitation sile where conditions warrant.
(b) Ihe sccielary shall establish criteria by rule lor
the pmpnsc ol determining, on a case-by-case basis,
the reliatiilitation program tasks that comprise a sile
rehabilitation program for which reimbursement may be
made in accordance wilh subsection (12).and Ihe level
at which a rehabilitation program task and a site rehabili-
tation program may be deemed completed, whether
such site rehabilitation program tasks are lo be per
lormed by Ihe department or by a person through his
own personnel or through responsible response action
contractors or subcontractors. Any person who under-
takes a sile rehabilitation program lor a sile which is eli-
gible and qualilied lor reimbursement pursuant lo sub-
section (12) may conduct one or more site rehabilitation
program tasks; however, except as provided in subsec-
tion (12). any program task initiated must be completed
lo be eligible lor reimbursement lor such lask Criteria
lor determining completion ol sile rehabilitation program
lasks and site rehabilitation programs shaB be based
upon Ihe laclors set lorth in paragraph (a) and Ihe fol-
lowing additional laclors:
1. Individual site characteristics, including natural
rehabilitation processes.
2 Applicable slate water quality standards.
3. Whether deviation Irom state water quality stand-
ards or Irom established criteria is appropriate, based
upon Ihe degree to which the desired cleanup level is
achievable and can be reasonably and cosl-elleclivety
implemented within available technologies or control
strategies, except thai, where a slate water quality stan-
dard is applicable, such deviation may not result in Ihe
application ol standards more stringent than said stan-
dard.
However, nothing in this paragraph shall be construed
lo restrict the department Irom temporarily postponing
completion ol any sile rehabilitation program lor which
lunds are being expended whenever such postpone-
ment is deemed necessary in order lo make lunds avail-
able lor rehabilitation ol a contamination site wilh a
higher priority status.
(6) FUNDING —The Inland Protection Trust Fund
shan be lunded as follows:
(a) An excise taxes levied, collected, and credited lo
Ihe lund in accordance wilh Ihe provisions ol ss.
206 9935(3) and 206 9945( I He).
(b) An penalties, judgments, recoveries, reimburse-
ments. and other lees and charges credited to the lund
in accordance with Ihe provisions ol subsection (3).
(c) A loan ol $5 million Irom the Florida Coastal Pro-
tection Trust Fund pursuant to s. 376.1 t(4)(e). This loan
shall not be subject lo Ihe General Revenue Fund
deduction authorized in s. 215.20.
(7) DEPARTMENTAL 0UTY TO SEEK RECOVERY
AND REIMBURSEMENT.-
(a) Except as provided in subsection (9) and as oth-
erwise provided by law. Ihe department shall recover to
Ihe use ol the lund Irom a person or persons at any time
causing or having caused Ihe discharge or Irom Ihe Fed-
eral Government, jointly and severally, an sums owed or
expended Irom Ihe lund. pursuant lo s. 376.308. except
that Ihe department may decline lo pursue such recov-
ery il il finds Ihe amount involved too small or the likeli-
hood ol recovery loo uncertain* Sums recovered as a
result ol damage due lo a discharge related lo the stor-
age ol petroleum or petroleum products or other similar
disaster shan be apportioned between the lund and Ihe
General Revenue Fund so as lo repay the lull costs to
the General Revenue Fund ol any sums disbursed there-
Irom as a result Ol such disaster. Any request lor reim
bursement to Ihe lund lor such costs, il not paid within
30 days ol demand, shall be turned over to Ihe depart-
ment lor collection.
(b) Except as provided in subsection (9) and as oth-
erwise provided by law, il Is Ihe duly ol Ihe department
in administering Ihe lund diligently to pursue Ihe reim-
bursement lo Ihe lund ol any sum expended Irom the
lund lor cleanup and abatement in accordance with the
provisions ol Ihis section or s. 376.3073. unless Ihe
department Iknds Ihe amount Involved loo small or the
likelihood ol recovery loo uncertain. For the purposes ol
S. 95.11. the timilalion period within which lo institute an
action lo recover such sums shall commence on Ihe last
date on which any such sums were expended, and not
the dale that Ihe discharge occurred.
(c) It Ihe department initiates an enforcement action
lo dean up a contaminated sile and determines thai the
responsible parly is financially unable to undertake com-
plete restoration ol the contaminated sile, that Ihe cur-
rent property owner was not responsible lor the dis-
charge when the contamination lirst occurred, or thai
Ihe state's interest can best be served by Ihe responsi-
ble parly conducting cleanup, Ihe department may
enter Into an agreement wilh the responsible party or
property owner whereby Ihe department agrees to reim
burse the cleanup cost or a portion ol Ihe cleanup cost.
The reimbursement request shan be processed pursu-
ant lo the provisions ol subsection (12). However. Ihe
department shall be obligated to reimburse only such
cleanup or portion ol the cleanup as the parlies have
agreed is beyond the financial capability ol Ihe responsi
We parly or properly owner, taking into consideration
Ihe party's net worth and the economic impact on the
parly.
(8) WVESTMENTS; INTEREST —Moneys In Ihe lund
which are not needed currently lo meet the obligations
ol Ihe department in the exercise ol its responsibilities
under this section and s. 376 3073 shan be deposited
with the Treasurer lo Ihe credit ol Ihe lund and may be
invested In such manner as is provided lor by statute.
The interest received on such investment shall be cred-
ited lo Ihe lund. Any provisions ol law lo the contrary
notwithstanding, such interest may be Ireety transferred
between this trust lund and the Water Ouatily Assur-
ance Trusl Fund, in Ihe discretion ol Ihe department.
(9) EARLY DETECTION INCENTIVE PROGRAM —
To encourage early detection, reporting, and cleanup ol
contamination Irom leaking petroleum storage systems.
Ihe department shan, within Ihe guidelines established
in Ihis subsection, conduct an incentive program which
1047
-------
5. 376.307! 199? SUPPLEMENT TO FLORIDA STATUTES 1991 ?
shall provide (or a 30-monlh grace period eroding on
December 31. 1988. Pursuant thereto:
(a) The department shall establish reasonable
requirements for (he written reporting of petroleum con
lamination incidents and shall distribute forms lo regis-
trants under s. 376.30341Kb) and lo other interested par-
lies upon request to be used lot such purpose. Unlit
such lorms are available for distribution, the department
shall lake reports ol such incidents, however made, but
shall notify any person making such a report that a com-
plete written report ol the incident will be inquired by the
department at a later lime, the form lor which will be pro-
vided by the department.
(b) When reporting lorms become available lor dis-
tribution. aCf sites invotving incidents of contamination
from petroleum storage systems initially reported to the
department at any lime from midnight on June 30. 1386.
to midnight on December 31. 1988. shall be qualified
sites, provided lhat such a compfete written report is
tiled with respect thereto within a reasonable time. Sub-
iecl to the delays which may occur as a result ol the pri-
oritization of sites under paragraph (5Ma) 'or any quali-
fied site, costs for activities described in paragraphs
(4)(a)-(e) shall be absorbed al the expense of the fund,
without recourse to reimbursement or recovery, with the
Mowing exceptions:
1. The provisions of this subsection shall not apply
to any site where the department has been denied site
access lo implement the provisions of this section.
2. The provisions of this subsection shall not be
construed to authorize or require reimbursement Irom
the lund lor costs expended prior lo the beginning ol the
grace period, except as provided in subsection (12).
3.e. Upon discovery by the department lhat the
owner or operator ol a petroleum storage system has
been grossly negligent in the maintenance ol such
pelroHeum storage system; has, wilh willful inlenl io con-
ceal the existence ol a serious discharge, falsified inven-
tory or reconciliation records maintained with respect to
Ihe site at which such system is located; or has inten-
tionally damaged such petroleum storage system, the
site at which such system is located shall be ineligible
lor participation in the incentive program and Ihe owner
shad be liable lor all costs due to discharges Irom petro-
leum storage syslems at that site, any other provisions
ol chapler 66-159, Laws ol Florida, to the contrary not-
withstanding. For Ihe purposes ol this paragraph, willful
failure to maintain inventory and reconciliation records,
willlui laiture to make monthly monitoring system checks
where such systems are in place, and failure lo meet
monitoring and retrofitting requirements within Ihe
schedules established under chapler 17-61. Florida
Administrative Code, or violation of similar rules adopted
by the Department ol Natural Resources under this
chapler, shall be construed lo be gross negligence in
Ihe maintenance ot a petroleum storage system.
b. The department shall redetermine the eligibility
of pelrnteum storage systems lor which a timely EDI
application was filed, but which were deemed ineligible
by the department, under the following conditions:
(I) The owner or operator, on or before March 3).
1991. shad submit, in writing, notification that the stor-
age system is now in compliance with department rules
adopted pursuant los. 376.303. and which lequnsts fhe
department to reevaluate the storage system eligibility,
and
(II) The department verifies ihe storage system
compliance based on a compliance inspection
Provided, however, thai a sile may be determined eligi-
ble by the dcpartmenl lor good cause shown, including,
but not limited to. demonstration by Ihe owner ot opoia
tor thai fo achieve compliance would cause an increase
in I he potential lor tho spread ol Ihe contaminating
C. Redetermination of eligibility pursuant In snb-
subparagraph b. shall not be available to.
(I) Petroleum storage syslems owned or operated
by Ihe Federal Government.
(II) Facilities thai denied site access to the depart
ment.
(III) Facilities where a discharge was intentionally
concealed.
(IV) Facilities that were dented eligibility due lo:
(A) Absence of contamination, unless any such facil-
ity subsequently establishes that contamination did
exist at thai facility on or before December 31. 1986.
(6) Contamination Irom substances lhat were not
petroleum or a petroleum product.
(C) Contamination lhat was not Irom a petroleum
storage system.
d. ED* applicants who demonstrate compliance lor
a sile pursuant to sub-subparagraph b are eligible lor
Ihe Earfy Defection Incentive Program and Ihe Reim-
bursement Program. Unless the responsible person cer-
tifies to the department in writing thaf he qualifies as a
small business under s. 266.703(1). the eligible applicant
shall initiate and complete site rehabilitation and seek
reimbursement pursuant lo subsection (12). The
requirements ot this sub-subpatagraph shall not apply
if Ihe responsible person can demonstrate lo Ihe depart-
ment an economic hardship due lo the number ol sites
or Ihe lack of revenue or credit. In such a situation, Ihe
department may approve a plan that will require Ihe
responsible person to complete some or all of the lasks
lor the applicable sites. The plan shall include which
lasks and sites shall be required lo seek reimbursement
pursuant to Ihe provisions ol subsection (12) and which
tasks and sites shall be subject to the provisions of this
subsection.
If, rn order lo avoid prolonged delay, the department in
its discretion deems it necessary lo expend sums Irom
the lund to cover ineligible siles or costs as set forth in
this paragraph, the department may do so and seek
recovery and reimbursefnent therefor in the same man-
ner and in accordance with the same procedures as are
established for recovery and reimbursement ol sums
otherwise owed lo or expended from Ihe lund.
(c) No report of a discharge made lo the department
by any person in accordance with this subsection, or
any rules promulgated pursuant hereto, shall br? used
direclty as evidence ol liability lor such dischaige in any
civil or criminal Iriat arising out ol the discharge
(d) The provisions ol this subsection shall not apply
lo petroleum storage systems owned or operated by Ihe
Federal Government.
1048
». 376.3071 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 ». 376.3071
(10) VIOLATIONS, PENALTY —II is unlawful for ahy
person to:
(a) Falsify inventory or reconciliation records main-
tained tn compliance with chapter 17-61. Florida Admin-
istrative Codi?, with willlui intent lo conceal the existence
of a serious le
-------
»- 376.3071 1992 SUPPLEMENT TO FLOHIDA STATUTES 1991 S 376 307J
vate sector The department is authorized to adopt "«c
essary rules and enter into contracts to cany oijI the
intent ol this subsection.
(e) Procedure lo initiate and conduct site rehabitHa-
tion. — Any person initiating site rehabilitation pursuant
lo this section between January t. 1985. and December
31. (988. who intends to lite tot reimbursement shall
submit written notice ol such intent lo the department
prior to midnight on December 31. 1988. together with
documentation ol site conditions prior to initiation ol
cleanup. Such documentation shad not be required if the
site has previously been determined eligible tor slate
cleanup. Within 60 days alter receipt ol such notice and
sufficient documentation ol site conditions prior to inilia
tion ol cleanup, the department shall determine whether
the person is ineligible lo apply tor reimbursement pur-
suant to the criteria lor eligibility under subsection (9)
and shall nolily the applicant as lo his eligibility in writ
ing.
(I) Records —The person responsible lor conduct-
ing site rehabilitation, or his agent. shad keep and pre-
serve suitable records ol hydrological and other sile
investigations and assessments; site rehabilitation
plans: contracts and contract negotiations; and
accounts, invoices, sates tickets, or other payment rec-
ords from purchases, sales, leases, or other transactions
involving costs actually incurred related lo site rehabili-
tation. Such records shall be made available upon
request to agents and employees ol the department
during regular business hours and at other times upon
written request ol the department. In addition, the
department may from time lo lime request submission
ol such site-specitic information as it may require AD
records ol costs actually incurred lor cleanup shad be
ceililied by atlidavit to the department as being true and
correct.
(g) Application lor reimbursement —Any eligible
person who performs a site rehabilitation program or
performs site rehabilitation program tasks such as prep-
aration ot site rehabilitation plans or assessments; prod-
uct recovery; cleanup ol groundwater or inland surface
water; soil treatment or removal; or any other tasks iden-
tified by department rule developed pursuant lo para-
graph (5Xb), may apply lor reimbursement. Such appli-
cations lor reimbursement must be submitted to Ihe
department on lorms provided by Ihe department,
together with evidence documenting lhal site rehabilita-
tion program tasks were conducted or completed in
accordance with department rule developed pursuant
to paragraph (5Xb). and other such records or informa -
lion as the department requires. The reimbursement
application and supporting documentation shall be
examined by a certified public accountant in accord-
ance with standards established by Ihe American Irtsli-
lute ol Certitied Public Accountants. A copy ol the
accountant's report shall be submitted with Ihe reim
bursemenl application. Applications lot reimbursement
shall not be approved tor site rehabilitation program
tasks which have not been completed, except lor Ihe
task ot remedial action Applications for remedial action
may be submitted semiannually al the discretion of the
person responsible lor cleanup.
(h) Review —
I. Provided there are sulficienl unencumbered
funds available in the Inland Protection Irust Fund, Ihe
department shall have 60 days lo determine il Ihe appli
cant has provided sutticient intormatinn lot processing
the application and shall request submission ol any
additional information that Ihe deparlinenl may require
wilhin such 60-day period. If ttie applicant brieves any
request lor additional information is not authorized. Ihe
applicant may request a hearing pursuant to s 120 S7.
Once the department requests additional information.
Ihe department may request only lhal information
needed to claiify such additional information or to
answer new questions raised by or directly telaled lo
such additional information.
2 The department shall deny or approve Ihe appli
cation for reimbursement wilhin 90 days alter receipt ol
Ihe last item of trmely requested additional material, of.
il no additional material is requested, wilhin 90 days ol
the close ol the 60-day period described in subpara-
graph 1.. unless Ihe lolat review period is otherwise
extended by written mutual agreement ol Ihe applicant
and the department
3. Final disposition ol an application shall be pro-
vided to the applicant m writing, accompanied by a writ-
ten explanation selling lorth in detail Ihe reason ot rea-
sons for Ihe approval or denial. H Ihe department tails lo
make a determination on an application within the lore
provided in subparagraph 2 . ot denies an application,
or if a dispute otherwise arises with regard lo reimburse-
ment, the applicant may request a hearing pursuant to
s. 120 57.
(i) Schedule tot reimbursement. —Upon approval ol
an application lor reimbursement, reimbursement for
reasonable expenditures ot a site rehabilitation program
or site rehabilitation program tasks documented therein
shall be due and payable wilhin 10 days of approval of
Ihe application, provided there are sutlicienl unencum-
bered funds available in Ihe Inland Protection Trust
Fund. Payment shall be made in Ihe order in which Ihe
department receives completed applications. Reim-
bursement payment lor a site rehabilitation program or
program tasks shall be made lor activities completed in
accordance with department rule developed pursuant
lo paragraph (5Kb). except lhal a person who under-
takes Ihe program task of remedial action and is working
toward meeting Ihe applicable remedial criteria lor com
plelion shall be allowed lo receive, upon request, interim
reimbursement semiannually while the remedial action
Is taking place.
(i) Liberal construction.—With respect to site reha-
bilitation initiated prior to July I. 1986. the provisions ol
this subsection shall be given such liberal construction
by Ihe department as will accomplish the purposes sel
lorth in this subsection. With regard to Ihe keeping ol
particular records or the giving ot certain notice, the
department n»ay accept as compliance action by a per-
son which meets the inlenl ol Ihe requirements sel lorth
in this subsection.
(k) Reimbursement-review conhants —The depart
ment may contract with entities capahle ol processing
or assisting in Ihe review ol reimbursement .ippticati'Kis.
1050
s. 376.3071
1992 SUPPLEMENT TO FLOHIDA STATUTES 1991
1. 376.3072
Any purchase ol such services shall nol be subject lo
chapter 287
(l| E Ihr. lency study —
t. II is Ihe inlenl ol Hie Legislature lhal a coordi-
nated etlnrt tmlween the department and the private
seclix lie developed to make sure that contamination
Irom petiiteuin products is corrected as elliciently as
por.sihln to ensure the quality ol Florida's environment,
to ensure that restoration payments aie conducted in
llic most cost -ellicienl manner, and lo ensure lhal reve-
nue Irorn ihe Inland Protection Trust Fund is spent in Ihe
niosl cosl-elfeclive manner.
2 Ihe department shad establish an elliciency task
lorce made up Irom Ihe following groups and organiza-
tions. Ihe Florida Petroleum Council, the Florida Petro-
leum Marketers Association, Associated Industries ol
Florida. Ihe Florida Chamber ol Commerce, Florida Cer-
tified Public Accountant Institute, the Florida Bankers
Association, Ihe Florida Insurance Council, Ihe Florida
Chapter ol the Sierra Club. The Florida Bar, Ihe Florida
Association ol Counties, a response action contractor
not under slate contract, and a response action contrac-
tor under stale contract. The department shad provide
stall support lo Ihe elliciency task lorce.
3 The task lorce shall examine the department's
efforts lo imp Is ment this section and ss. 376.305(7) and
376 3072. and shad make recommendations to Ihe sec
relary on ways lo improve Ihe elliciency ol the petro-
leum restoration programs in reduced duplication ol
etlorts and reduced paperwork, ways to improve coordi-
nation ol tasks and responsibilities, and Ihe cost lo ben-
efit ol Ihe standards required by chapter 17-770, Florida
Administrative Code. The secretary may also request
that the task lorce review any adrninlslralive functions
ot department requirements under these programs to
assist in achieving maximum efficiency.
4. The task lorce members shall elect a chairman,
vice chairman, and secretary. All members al Ihe lask
lorce shaft serve for a period of 1 year unless Ihe depart-
ment determines that additional services will be benefi-
cial. Upon such a determination. Ihe department may
extend Ihe terms ol the task lorce or make new appoint-
ments ol some or all of Ihe members.
5. The lask lorce shall make reports as necessary
to the secretary to improve the elliciency ol these pro-
grams.
6. The members ol Ihe task lorce shad serve with-
out compensation or per diem. The department shal
cooperate with and support Ihe lask lorce members lo
minimize expense to Ihe commission members and shaB
provide data and materials to the lask force.
(m) Audits —
1. The department is authorized lo perform finan-
cial and technical audits In order to cerlily site restora-
tion costs arid ensure compliance with (his chapter. The
department shad seek recovery of any overpayments
based or, the findings ot these audits. The department
must commence any audit wilhin 5 years alter Ihe date
ol reimbursement, except in cases where the depart-
ment alleges specific lacls indicating fraud.
2. Upon determination by the department that any
portion ol costs which have been reimbursed are disal-
lowed. the department shall give written notice to Ihe
applicant selling forth with specificity Ihe allegations of
lac I which justify Ihe department's proposed action and
ordering repayment ol disallowed costs within 60 days
ol notification ol Ihe applicant.
3. In Ihe event the applicant does nol make pay-
ment lo Ihe department within 60 days ol receipt of such
notice. Ihe department shall seek recovery in a court of
competent jurisdiction la recover reimbursement over
payments made lo Ihe person responsible lot conduct-
ing site rehabilitation, unless the department Itnds Ihe
amount involved loo smad or Ihe likelihood of recovery
loo uncertain.
4. In addition lo Ihe amount ol any overpayment,
the applicant shal be liable to Ihe department lor inter-
est ol 1 percent per month or Ihe prime rate, whichever
is less, on Ihe amount ol overpayment. Irom Ihe dale ol
overpayment by Ihe department until the applicant sat-
isfies llie department's request lor repayment pursuant
lo INS paragraph. The calculation ol interest shad be
lolled during (he pendency ol any litigation.
ItMMT-a li IS di M-159 I to W-V4. 1 2 c* tlUI: • 4. »
M.ini to. eti n-«. • ai. eft to-is?. • is. cti ti-ra. • s ii-j». •
I 0> K-B
376.3073 Florida Petroleum Liability and Restora-
tion Insurance Program.—
(1) There is hereby created the Florida Petroleum
Liability and Restoration Insurance Program to be
adminislefed by the Department ol Environmental Reg
utatlon. The program shall provide restoration funding
assistance lo facilities regulated by and in compliance
with Ihe department's petroleum storage tank rules. To
Implement the program, the department may contract
with an Insurance company, a reinsurance company, or
other Insurance consultant lo issue third-parly liability
policies that meet the federal financial responsibility
requirements ol 40 C.FR. s. 280 97, subpart H.
(2Xa) Any owner ot operator ol a petroleum storage
system may become an Insured in the restoration insur-
ance program at a tacHity provided:
1. A site at which an Incident has occurred shad be
eligible for restoration 11 the insured is a participant in the
Ihlrd-party liability Insurance program or otherwise
meets applicable financial responsibility requirements.
Alter Juiy 1, 1993, Ihe insured must also provide Ihe
required excess Insurance coverage or sell-insurance
lor restoration lo achieve Ihe financial responsibility
requirements ol 40 C.F.R. s. 280.97. subpart H. nal cov-
ered by paragraph (e).
2. A site which had a discharge reported prior to
January 1,1989, lor which notice was given pursuant to
t. 376.3071(9) or (12). and which is ineligible lor Ihe
third-parly liability insurance program solely due lo thai
discharge shad be eligible lor participation in Ihe rostora-
tion program (or arty Incident occurring on or alter Janu-
ary 1. 1989. provided Ihe lacilily is in compliance with
the rules ol the department pertaining to storage tanks
adopted pursuanl lo s. 376.303. and Ihe owner ot opera-
tor submits a completed allidavil and ad pertinent appli-
cation lorms for the program Restoration funding lor an
eligible contaminated site will be provided without par-
ticipation in the thitd-party liability insurance program
until Ihe site is restored as required by the department
or until Ihe department determines that Ihe site does not
require restoration.
1051
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5. 376.3072
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 376.3072
3. A site where a discharge was reported between
January 1,1909. and September 1.1989. and which was
in compliance ai that time with the rules ol the depart-
ment pertaining to storage tanks adopted pursuant to
s. 376.303, may participate in the restoration program for
said discharge with or without participation in the third-
party liability insurance program or other prool ol finan-
cial responsibility.
(b) 1 To be eligible to be certified as an insured
facility, for discharges reported after January 1. 1989.
the owner or operator shad file an affidavit upon enroll-
ment in the program and must file an affidavit each year
upon the scheduled date of payment of the annual regis-
tration fee assessed pursuant to s. 376.303. or. upon the
date of installation ol the facility or enrollment In the pro-
gram and each year thereafter, il the facility is a petro-
leum storage system that is not subject to Ihe registra-
tion fee. The affidavit shall slate that the owner or opera-
tor has read and is familiar with this chapter and Ihe
rules relating to petroleum storage systems and petio-
leum contamination site cleanup adopted pursuant to
ss. 376.303 and 376.3071 and that Ihe facility is in com-
pliance with this chapter and applicable rules adopted
pursuant to s. 376.303.
2. Except as provided in paragraph (a), to be eligi-
ble. the insured must demonstrate to the department
that at the time Ihe discharge was reported, the insured
had financial responsibility for third-parly claims and
excess coverage, as required by this section and 40
C.F.R. s. 280.97(h).
3. To be eligible, the facility shaft be in compliance
with department rules as demonstrated at the most
recent inspection conducted by the department or (he
insured demonstrates that any necessary corrective
actions identified at the most recent inspection have
been corrected as ordered by the department. Should
a reinspeclion of the lacility be necessary to demon-
strate compliance, Ihe insured shall pay an inspection
fee not to exceed $500 per facility to be deposited in the
Inland Protection Trust Fund, in addition to any noncom-
pliance fee which may be assessed.
4. The department shall issue an order stating thai
the site is eligible for restoration coverage if the criteria
listed in subparagraphs 1.-3. are met.
5. Upon the filing of a discharge notification with Ihe
department, the department may inspect the facility.
The department shall provide restoration coverage for
the facility when a claim requesting such coverage is
filed, untess:
a. The insured has failed to abate the known source
of a discharge;
b. The insured has failed to take corrective action
as required by the department; or
c. The insured has intentionally caused or con-
ceafed a discharge or disabled leak detection equip-
ment.
Nothing contained herein shall prevent the department
from assessing a noncompliance fee pursuant to s.
376.3074 or civil penalties lor noncompliance as pro-
vided herein.
(c) A financial institution that has loaned money lo
a participant in the Florida Petroleum Liability and Reslo
ration Insurance Program or serves as a trustee for an
insured in the program lor Ihe purpose of site rehabilita-
tion shall have the right to conduct cleanup of the site,
if a foreclosure of the loan on lhat properly has occurred
and if:
1. The owner or operator or lender provided Ihe
financial institution with proof lhat Ihe facility is eligible
for the restoration insurance program al Ihe time ot Ihe
loan or before the discharge occurred: and
2. The financial institution or lender completes site
rehabilitation and seck9 reimbursement pursuant to s.
376.3071(12).
(d) In order lor an eligible owner or operator lo parlic
ipate.in the restoration pfogram. the owner or operator
must, upon discovery of evidence ol a discharge ol
petroleum product at a facility, drain and remove from
service the suspected petroleum storage system, if nec-
essary, and complete initial remedial action as defined
by department rules. The restoration must be con-
ducted using the criteria and procedures established
pursuant lo s. 376.3071. The eligible applicant shall ini-
tiate and complete site rehabilitation and seek reim-
bursement pursuant to s. 376.3071(12). This require-
ment applies to all sites where a discharge occurs after
July 1. 1991. and restoration coverage is requested,
unless (he discharge occurred prior lo December 31.
1993.-and:
1. The responsible person certifies to the depart-
ment in writing that he qualities as a small business
under s. 288.703(1) or a corporation not for profit under
chapter 617; or
2. The responsible person can demonstrate to the
department an economic hardship due to the number of
siles or Ihe lack ol revenue or credil.
In such a situation, the department may approve a plan
that requires the responsible person lo complete some
or all of the tasks for Ihe applicable sites. The plan must
include which tasks and sites are required lo seek reim-
bursement pursuant lo s. 376.3071(12) and which tasks
and siles are subject to this subsection.
(e)1. With respect to eligible incidents reported lo
the department prior to July 1, 1992. Ihe restoration
insurance program shall provide up to Si million of resto-
ration lor each incident and shall have an annual aggre-
gate limit of $2 million of restoration per facility.
2. For any site at which a discharge is reported on
or after Juty 1. 1992. and for which restoration coverage
is requested, the department shall pay lor restoration in
accordance with the Mowing schedule:
a. For discharges reported to the department from
July 1.1992. to June 30.1993, the department shall reim-
burse, or lor sites eligible for slate cleanup pursuant to
paragraph <2){d). Ihe department shall pay, up lo SI mil-
lion ol eligible restoration costs, less a S1.000 deductible
per incident.
b. For discharges reported to the department from
July 1. 1993, lo December 31. 1993. the department
shall reimburse, or lor sites eligible lor slate cleanup pur-
suant lo paragraph (2)(d), the department shall pay. up
to Si minion of eligible restoration costs, less a $5,000
deductible per incident. However, if, prior to Ihe date Ihe
discharge is reported and by Seplember 1. 1993. the
1052
9. 376.3072 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 8. 376.307'
owner or operator can demonstrate financial responsibil-
ity in effect in accordance with 40 C.F.R. s. 280.97, sub-
part H. for coverage under subparagraph c. of this para-
graph ihe deductible will be $500 The $500 deductible
shall apply for a period of one year from the effective
dale of a policy or olher lorm of financial responsibility
obtained and in elloct by Seplember 1. 1993.
c. For discharges reported to the department from
January 1. 1994. lo December 31.1996. Ihe department
shall reimburse up to $300,000 of eligible restoration
zosis, less a deductible ol $10,000.
d. For discharges reported to the department from
January 1. 1997, to December 31, 1998. the department
shall reimburse up to $150,000 of eligible restoration
costs, less a deductible of $10,000.
e. Beginning January 1. 1999. no restoration cover-
age shall be provided.
(f) The following are not eligible to participate in the
Petroleum Liability and Restoration Insurance Program:
1. Siles owned or operated by the Federal Govern-
¦nent.
2. Sites where the owner or operator has denied the
department site access.
3. Any third-party claims relating lo damages
caused by discharges discovered prior to January 1,
1989.
4. Any incidents discovered prior to January 1,
1989, are nol eligible to participate in the restoration
nsurance program. However, this exclusion shall not be
construed to preveni a new incident at Ihe same loca-
tion from participation in the restoration insurance pro-
gram it the owner or operator is otherwise eligible. This
exclusion shall not aflect eligibility for participation in the
EDI program or the reimbursement program pursuant to
s. 376.3071.
(3) For purposes ol this section, the term:
(a) "Restoration* means rehabilitation of contami-
nated sites both on and off the property of the owner or
operator of the petroleum storage system and shall con-
sist of investigation and assessment, cleanup of
affected soil, groundwater, and surface water in accord-
ince with the site selection and cleanup criteria estab-
ished by the department pursuant to s. 376 3071(5),
ind maintenance and monitoring ol the contaminated
sites. The term "restoration" also means the depart-
ment's expeditious rehabilitation or replacement of pota-
ble water supplies as provided in s. 376.30(3Xc)1. tn Ihe
svent the department does not provide bottled water, or
> replacement water supply within 3 days. Ihe owner,
operator, or their designee may provide bottled water to
in affected third party, and that cost shall be reimburs-
lbte. The term "restoration* does not mean costs which
nay be associated with compliance with rules relating
:o stationary tanks adopted pursuant to s. 376.303.
(b) 'Third-parly liability' means the insured's Habrt-
ty. other than tor restoration costs, for bodity injury or
properly damage caused by an incident of inland corv
amination related lo the storage of petroleum product.
(c) "Incident* means the reporting of any sudden or
gradual discharge ol petroleum product arising from
operating a storage system containing petroleum prod-
jet lhat resulls in a need for restoration or results in bod-
ly injury or properly damage neither expected nor
Intended by the petroleum storage system owner o
operator.
(d) 'Petroleum products* means petroleum product*
as defined by s. 376.301.
(4)(a) The department shall adopt rules lor the
proper management and maintenance of the Florid*
Petroleum Liability and Restoration (nsurance Program
The department may contract with an insurance com
pany, reinsurance company, or other entity lor Ihe imple
mentation of Ihe program or any portion ol (he program
The purchase of insurance services by Ihe deparlmen
is not subject to the provisions of chapter 287.
(b) The Department of Insurance shall olfer assist
ance as requested by the department to implement th<
program.
(c) Any insurance company, reinsurance company
or other entity contracted wilh by Ihe department shal
be subject to the same rules and regulations of th<
Department ol Insurance applicable to other insurers
reinsurers, and other entities.
Hilar!.-» X 13. eh 8B-33I:* 5e*> »-l«, • ?«.<* 90-J*. u 16. i9.c*
91-305. • 9. «-»
376.3074 Noncompliance fees.—
(1) tn addition to any judicial or administrative rem
edy authorized by this chapter, Ihe department ma)
assess a noncompliance fee for failure of any owner oi
operator of a facility regulated pursuant lo ss. 376.30-
376.319 to comply wilh the requirements of this sectior
and storage tank rules adopted pursuant thereto.
(2) The department shall adopt rules to implement
the assessment and collection ot noncompliance tees
An assessment shall not exceed $250 per violation oi
$1,000 per facility per quarter. A noncompliance fee foi
a violation shall be in lieu of any civil action for such viola
lion.
(3) A notice of a noncompliance fee shall inform the
person that he may request an administrative hearing
pursuant to s. 120.57. If an informal administrative deter
mination is sought, the determination may be made by
a district director ol the department or his designee. The
notice shall contain a statement lhat a person failing to
pay Ihe fee within Ihe time allowed, or failing to appear
to contest the citation alter requesting a hearing, shall
be deemed to have waived the righi lo contest imposi
lion of the noncompliance lee, and in such case. Ihe per
son may be required lo pay an amount up to Ihe maxi-
mum fine or penally. If Ihe person fails to pay the
assessed fee or waives his right to a hearing, the depart-
ment may initiate a civil enforcement action pursuant to
this chapter.
(4) Fees collected pursuant to this section shall be
deposited in Ihe Inland Protection Trust Fund or the
Water Quality Assurance Trust Fund, as appropriate.
The department may use a portion of the fund to con-
tract tor services to assist in the collection of noncompli-
ance fees.
(5) Any governmental agency, including a local gov-
ernment, to which has been delegated contractual
authority for any program under Ihis chapter shall be
bound by Ihe procedural requirements of Ihis section
and of chapter 120, if it elects to use the enforcement
provisions of this section. In such case, the agency
1053
-------
»: 376.3074 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 376.308
responsible lor enforcement ol I he program shall be Ihe
sole enforcement entity authorized lo assess noncom
pliance Ices pursuant to this section.
(6) In lieu ol payment ol Ihe noncompliance lee pro
vided lor in this section. Ihe owner or operator ol a lacil
ily may elect lo allend a certified course in storage lank
operation and management. The department shall cer
Illy an appiopriale training course in storage tank opera
lion and management that may be established by a non-
profit industry trade association. The registration lee lor
Ihe course shall not exceed $150. The department may
adopt rules lo implement Ihe provisions ol this subsec
lion and lo establish criteria tor determining whether an
owner or operator may elect to attend Ihe course lor
repeal or subsequent violations lor which a noncompli.
ance lee may be assessed by the department.
Mrar.-I ? ch 90 K.I 9 01 W-30
376.308 Liabilities and defense* of faefflttes.—
(1) In any suit instituted by Ihe department under ss.
376 30-376 319. il is not necessary to plead or prove
negligence in any lorm or mailer. The department need
only plead and prove that Ihe prohibited discharge or
olher polluting condition has occurred. The lollowmg
persons shall be liable to Ihe department lor any dis-
charges or polluting condition:
(a) Any person who caused a discharge or olher pol-
luting condition or who owned or operated Ihe lacility at
Ihe lime Ihe discharge occurred.
(b) In Ihe case ol a discharge of hazardous sub-
stances. all persons specified in s. 403 727(4).
(c) In Ihe case of a discharge of petroleum or petro-
leum products, the owner ol the facility, unless Ihe
owner can establish I hat he acquired title lo property
contaminated by Ihe activities of a previous owner or
operator or olher third parly, that he did not cause or
contribute lo Ihe discharge, and I hat he did not know ol
Ihe polluting condition at Ihe lime he acquired title. If Ihe
owner acquired title subsequent to July 1.1992. he must
also establish by a preponderance of Ihe evidence that
he undertook, al Ihe time ol acquisition, aD appropriate
inquiry into Ihe previous ownership and use of Ihe prop-
erly consistent wilh good commercial or customary
practice in an ellort to minimize liability. The court or
hearing oflicer shall lake into account any specialized
knowledge or experience on Ihe part ol the defendant.
Ihe relationship ol Ihe purchase price to Ihe value ol Ihe
properly il unconlaminated. cdmmonty known or reason-
ably ascertainable information about Ihe property, the
obviousness ol the presence or likely presence ol con-
lamination at Ihe properly, and Ihe ability lo detect such
contamination by appropriate inspection. In an action
relating to a discharge ol petroleum or petroleum prod-
ucts under chapter 403. the defenses and definitions set
lorlh herein shall apply.
(?) In addition lo Ihe delense described in para-
graph (1 Nc). the only other defenses ol a person speci-
fied in subsection (I) are lo plead and prove that Ihe
occurrence was solely Ihe result ol any of Ihe following
or any combination ol the lollowing.
(a) An acl ol war:
(b) An acl ol government, either state, lederal. or
local, unless Ihe person claiming Ihe delense is a gov
ernmental body, in which case Ihe delense is available
only by acts ol olher governmental bodies:
(c) An acl ol God. which means only an unloiesee
able acl exclusively occasioned by Ihe violence ol
nature without Ihe interference of any human agency: or
(d) An acl or omission ol a third parly, olher than an
employee or agent ol Ihe defendant or other lhan one
whose acl or omission occurs in connection wtlh a con-
tractual relationship existing, directly or indirectly, wilh
Ihe delendanl. except when Ihe sole contractual
arrangement arises Irorn a published larill and accept
ance lor carriage by a common carrier or by rail, and the
delendanl establishes by a preponderance ol Ihe evi
dence that:
1. The delendanl exercised due care wilh respect
lo the pollutant concerned, taking into consideration the
characteristics ol such pollutant, in light ol alt relevant
lacl? and circumstances.
2. The delendanl took precautions against any
foreseeable acts or omissions ol any such third parly
and against the consequences thai could loreseeably
result from such acts or omissions.
(3) For purposes ol this section. Ihe lollowing add!
tional defenses shall apply lo siles contaminated wilh
petroleum or petroleum products:
(a) The defendant is a financial institution serving as
a trustee, personal representative, or olher lype of fidu-
ciary, provided Ihe delendanl did not otherwise cause
or contribute lo the discharge:
(b) The delendanl is a financial institution which
holds indicia ol ownership in the Site primarily lo protect
a security interest, and which has not divested Ihe bor-
rower ol. or otherwise engaged in. decisionmaking con-
trol over site operations, particularly wilh respect to Ihe
storage, use. or disposal ol petroleum or petroleum
products, or which otherwise caused or contributed lo
Ihe discharge: provided, that the linancial institution
may direct or compel Ihe borrower lo maintain compli-
ance wilh environmental slalules and rules and may acl
10 prevent or abate a discharge: or
(c) The delendanl is a linancial institution which held
a security interest in Ihe site and has foreclosed or other-
wise acted lo acquire title primarily lo protect its security
interest, and seeks lo sell, transfer, or otherwise divest
Ihe assets lor subsequent sale al Ihe earliest possible
lime, taking ad relevant lacls and circumslances into
account, and has not undertaken management activities
beyond those necessary to protect its linancial interest,
to ellectuate compliance wilh environmental statutes
and rules, or lo prevent or abate a discharge: however.
11 Ihe lacility is not eligible for cleanup pursuant to s
376.305(7). s. 376.3071. or s 376.3072, any lunds
expended by the department for cleanup ol Ihe properly
shall constitute a lien on the properly against any subse-
quenl sale alter Ihe amount ol Ihe loimei security inter-
est (including Ihe cost ol collection, management, and
sale) is satisfied.
(4) Liability pursuant lo this chapter shall be joint
and several. However, il more than one discharge
occurred and Ihe damage is divisible and may be attri-
buted to a particular delendanl or defendants, each
defendant is liable only lor tin.* costs associated wilh his
1054
r 376.308 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 S. 376.317
damages. I ho huiden shall be on Ihe delendanl to clem
onslrale ll>e divisibility ol damages
(5) Nolliing hcicin shall be construed lo allecl
cleanup praijtaiii eligibility under ss. 376 305(7).
376 3071. and 376 3072.
Mttorr % HI rh HI 11(1 1 II II. RJOM « in rr> ffi l» 1 10 ch w-JO
376.311 Penalties lor a discharge.—
(1) The penally provisions ol this section do nol
apply lo any discharge promptly reported and. where
applicable, removed by an operator in accordance with
Ihe rules and orders ol the department when Ihe site has
been determined eligible lot participation in a program
described in s 376 305(7). s. 376 3071, or s. 3763072.
(2) Penalties assessed herein lor a discharge shall
be in accordance with Ihe provisions administered by
Ihe department in chapter 403.
Mttory. — • M eh 83-310 « ll.di 97-30
376.313 Noneichrshrenets of remedies and M-
vldual cause of action lor damage* under ss. 376.30-
376.319.-
(1) The remedies in ss. 376.30-376.319 shall be
deemed lo be cumulative and not exclusive.
(2) Nothing in ss. 376 30-376319 requires Ihe pur-
suit ol any claim against the Water Quality Assurance
Trust Fund or Ihe Inland Protection Trust Fund as a con-
dition precedent to any olher remedy.
(3) Notwithstanding any other provision of law, noth-
ing contained in ss. 376.30-376.319 prohibits any per-
son Irom bringing a cause ol action in a court ol compe-
tent jurisdiction lor all damages resulting from a dis-
charge or olher condition of pollution cowered by ss.
376.30-376.319. Nothing in Ihis chapter shall prohibit or
diminish a parly's right lo contribution Irom other parlies
jointly or severally liable for a prohibited discharge ol pol-
lutants or hazardous substances or other pollution con-
ditions. Except as otherwise provided in subsection (4),
in any such suit, il is nol necessary lor such person to
plead or prove negligence in any lorm or manner. Such
person need only plead and prove Ihe fact of Ihe prohib- *
iled discharge or olher podulive condition and thai il has
occurred. The only defenses to such cause of action
shad be Ihose specified in s. 376.308.
'(4) In any civil action brought alter July 1. 1986.
against Ihe owner or operator ol a petroleum storage
system lor damages arising Irom a petroleum storage
system discharge, the provisions ol subsection (3) shad
not apply il it can be proven that, al the time ol Ihe dis-
charge:
(a) The alleged damages resulted solely from a dis-
charge Irom a petroleum storage system which was
insladed. replaced, or retrolitted. and maintained, in a
manner consistent wilh Ihe construction, operation,
repair, and maintenance standards established lor such
systems under chapter 17-61. Florida Administrative
Code, as thai chapter may herealter be amended. The
requirement ol consistency with such standards may be
satisfied only by being in compliance wilh the standards
al Ilia time ol Ihe discharge, regardless of Ihe time spec
ilicd It* compliance under Ihe schedule provided in said
chapter.
(ti) A leak detection system or systems or a monitor,
ing well or wells were installed and operating in a manner
consistent wilh lechmcal requirements ol chapter
17-61. Florida Administrative Code, as that chapter may
herealter be amended: and
- (c) All inventory, recordkeeping, and reporting
requirements of chapter 17-61. Florida Administrative
Code, as thai chapter may herealter be amended, have
been and are being complied wilh.
Any person bringing such an action must prove negli-
gence to recover damages under this subsection. For
Ihe purposes ol Ihis subsection, noncompliance wilh
Ihis act. or any of Ihe rules promulgated pursuant
hereto, as the same may herealter be amended, shall be
prima facia evidence of negligence.
(5) The court, in issuing any final judgment in any
such action, may award costs ol litigation (including rea-
sonable attorney's and expert witness lees) to any
party, whenever the court determines such an award is
in the public interest.
iiii» i.-i w. en t3-)n. • ii. e» x-m ii jo. ji. c" n-ta. • u c*
EiprwOctobv». pwauaN to t Ji. e* tmt ki«Md
*9 tewew by 0w ItfMiM 'dumg mm I99B rtgufct EytfWi— wst«n'
976.317 Superseded laws; Hate preemption.—
(1) R any provision ol ss. 376.30-376 319 or of Ihe
rules developed pursuant to such sections, which provi-
sion pertains lo a lacility maintained lor the purpose ol
Ihe underground storage ol petroleum products lor use
as fuel in vehicles, including, but nol limited lo. Ihose
vehicles used on and oil roads, aircrall, watercrall. and
rail, is In conflict wilh any other provision, limitation, or
restriction which is now in ellecl under any law ol Ihis
slate or any ordinance ol a local government, political
subdivision, or municipality, or any rule or regulation
adopted thereunder, the provision of ss. 376.30-376.319
shad control, except as provided in subsection (3).
(2) Except as provided in subsection (3). the slate
preempts Ihe regulation ol Ihe prevention and removal
ol poRutant discharges from a facility described in sub-
section (1) which has no single tank having a capacity
exceeding 40.000 gallons al any lime.
(3) A county government is authorized to adopt
countywide ordinances thai regulate underground slor
age tanks, as described herein, which ordinances are
the same as or mere stringent or extensive than any
stale law or rule regulating such tanks, provided:
(a) The original ordinance was legally adopted and
in lorce before September 1. 1984: or
(b) The ordinance establishing a more stringent or
extensive local program is approved by Ihe department
pursuant lo subsection (5) alter Ihe county demon-
Blrales to Ihe department thai il has ellectivety admires
tered the stale law or rules lor a period ol 2 years prior
lo Ming a petition lor approval. However, any county
which has sought approval ol a local tank program liom
Ihe department prior lo January I. 1988. shad nol be
required lo demonstrate thai il has ellectivety admims
tered the state program lor any minimum period.
(4) The department shall either approve or disap
prove a request lo contract lor a compliance verification
program authorized pursuant lo s 376 3073 wilhin 90
days alter receipt ol Ihe complete application. II
approved. Ihe department shall provide lull funding lo
1055
-------
» 376.317 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 376.322
the local government lo carry out the contracted compli-
ance and enforcement responsibilities pursuant to s.
376.3073. The department may not disapprove an appli-
cation due to the population size ol a county and may
delegate compliance verification and enforcement to
those local governments who agree lo enforce the
State's program jointly.
(5) The department is authorized to adopt rules that
permit any county government to establish, in accord-
ance with s. 403.102. a program regulating underground
storage tanks, which program is more stringent or exten-
sive than that established by any state law or rule regu-
lating underground storage tanks. The department shaft
approve or deny a request by a county lor approval ol
an ordinance establishing such a program according to
the procedures and lime limits of s. 120.60. When adopt-
ing the rules. the department shall consider local condi-
tions that warrant such more stringent or extensive regu-
lation of underground storage tanks, including, but not
limited lo. the proximity of Ihe county to a sole or single-
source aquifer, (he potential threat to the public water
supply because of the proximity of underground storage
tanks lo public wells or groundwater, or the detection of
petroleum products in public or private water supplies.
(6) A county government may adopt an ordinance
regulating underground storage tanks that is the same
as any state law or rule regulating such tanks upon
approval by the department of a completed application.
HUIo*y.-• »3.ch 84-330 • 23. ch M-t$9 • S.ch IB ch W-t»
• 6. ch »-33t. • 7. eft 99-188. • 13. ch 97-30
376.320 Applicability. —The provisions of ss.
376.320-376.326 apply only to specified mineral acids
when stored in aboveground tanks. The purpose of ss.
376.320-376.326 is to prevent Ihe release of specified
mineral acids from aboveground tanks and to register
the aboveground tanks in which specified mineral acids
are stored.
Mttory.-t I, ch 90-9H. • 16. ch 82-30
376.321 Definitions.—As used in ss. 376.320-
376.326. the term;
(1) 'Aboveground* means that more than 90 percent
of a tank volume is not buried below Ihe ground surface.
An aboveground tank may either be in contact with the
ground or elevated above it.
(2) "Containment and integrity plan* or 'CIP* means
a document designed, created, and maintained at a
facility, which shall be considered a public record and
made available pursuant lo Ihe provisions ol chapter
119. and which sets forth the procedures for the inspec-
tion and maintenance program for aboveground tanks
at that facility which store specified mineral acids. That
program shall be designed for Ihe chemical and physical
characteristics of the specific mineral acid stored and
for Ihe specific materials ol construction of Ihe above-
ground lank. The CIP shall be designed lo ensure con-
trol of the specific mineral acid stored in an above-
ground tank for the expected lifetime, as determined by
standard engineering practices, of the materials of con-
struction of the specific aboveground tank in which that
mineral acid is stored.
(3) "Department" means the Department ol Environ-
mental Regulation.
(4) "Facility" means any nonresidential location or
part thereof containing an aboveground tank or above
ground tanks which contain specified mineral acids,
which have an individual storage capacity greater than
110 gallons.
(5) 'Flow-through process tank" means a flow-
through process lank as defined in s. 376.301.
(6) "Liner" means an artificially constructed material
of sufficient thickness, density, and composition that will
conlain the discharge ol any specified mineral acid from
an aboveground lank until such time as Ihe mineral acid
can be neutralized and/or removed. The liner shall pre-
vent any escape ol specified mineral acids or accumu-
lated liquid to the soil or (o the surface waler or ground
water except through secondary containment.
(7) 'Mineral acids* means hydrobromic acid (HBr).
hydrochloric acid (HQ), hydrofluoric acid (HF). phospho
ric acid (H3POj. and sulfuric acid (H,SO,). including
those five acids in solution, il at least 20 percent by
weignt of Ihe solution is one of Ihe five listed acids.
(6) "Nonresidential* means that Ihe tank is not used
at a private dwelling.
(9) 'Operator' means any person operating a facility
whether by lease, contract, or other form of agreement.
(10) "Owner" means any person owning an above-
ground tank subject to ss. 376.320-376.326.
(It) "Permitted wastewater treatment system* means
a facility lo which Ihe department has issued a permit
lo treat wastewater and release the treated product into
the environment.
(12) "Secondary containment* means a system that is
used for release prevention, and may include one or
more of the following devices:
(a) A double-walled lank;
(b) An external liner; or
(c) A system or structure constructed such that
accidental releases from an aboveground tank would be
collected by a drainage system within the system or
structure and routed lo a permitted wastewater treat-
ment system, plant recirculating process system, or
approved alternate containment system.
(13) "Stationary" means a tank or tanks not meant for
multiple site use or a tank or tanks which remain in one
location at the facility site for a period of 180 days or
longer.
(14) "Tank" means a stationary device which is con-
structed primarily of nonearthen materials (e.g., con-
crete. metal, plaslic. glass) lhat provides structural sup-
port and is designed primarily to contain mineral acids.
Connected piping from the lank to and including the
nearest cut-oil valve shall be considered part of Ihe
tank for purposes of this delinilion. 'Tank' does not
include llow-through process tanks.
KUiocy.-t t. Ch 90-98. • W, ch 92 30
376.322 Powers and duties of the department.—
The department shall have Ihe power and duly to:
(1) Contract with local governments as needed to
perform any of its duties under ss. 376.320-376 326.
(2) Establish a program lo register lanks subject to
Ihe provisions ol ss. 376.320-376 326.
(3) Adopt rules to implement ss. 376.320-376.326.
(4) enforce the provisions ol ss. 376 320-376.326
pursuant lo the provisions nf ss. 403 121 and 403.161.
1056
s. 376.322
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
S. 377.703
(S) Require thai facilities covered by ss. 376.320-
376.326 be subject to thorough and complete inspec-
tions at reasonable Inner, The provisions of s. 403.091
shall apply lo such inspections.
Hlttory, - * 3. ch 90 GO-SO. • 73. ch 93-30
376.60 Aibostoa removal program Inspection and
notification lee.—The Department ol Environmental
Regulation shall charge an inspection and notification
lee. not to exceed S50 lot a residential dwelling. $300 lor
a small business as defined in s. 288.70311), or $1,000
lor any other project, lor any asbestos removal project.
Public school districts. Ihe stale universities, and private
schools are exempt Irom such lees. Any lee collected
shall be deposited in Ihe asbestos program account in
Ihe Air Pollution Control Trust Fund lo be used by Ihe
department lo administer ils asbestos removal program.
The department may contract with a local government
to conduct asbestos removal programs within the juris-
diction ol that local government.
MtlavT.-t I. eh. so-lir. I S9. ch 90-331.* 2S. ch 92-30
CHAPTER 377
ENERGY RESOURCES
PART II
PLANNING AND DEVELOPMENT
377.700 Additional functions ol the Department of
Community Al lairs; energy emergency con-
tingency plan; federal and slate conserva-
Ikm programs.
377.706 Florida Energy Research and Development
Task Force: creation; membership; respon-
sibilities.
377.703 Additional lunctions of the Department ol
Community Affairs; energy emergency contingency
plan; lederal and state conservation programs.—
(1) LEGISLATIVE INTENT.—Recognizing thai
energy supply and demand questions have become a
major area of concern to the stale which must be deal!
with by effective and well-coordinated slate aclion, it is
the intent ol Ihe Legislature lo promote the efficient,
effective, and economical management ol energy prob-
lems, centralize energy coordination responsibilities,
pinpoint responsibility for conducting energy programs,
and ensure Ihe accountability of stale agencies lor Ihe
Implementation ol s. 377.601(4). the slate energy policy.
II Is the specific Intent ol Ihe Legislature lhat nothing in
this act shall in any way change Ihe powers, duties, and
responsibilities assigned by Ihe Florida Electrical Power
Plant Siting Act, pari II of chapter 403. or the powers,
duties, and responsibilities ol Ihe Florida Public Service
Commission.
(2) DEFINITIONS.—
(a) "Coordinate.' "coordination," or 'coordinating"
means the examination and evaluation ol stale plans and
programs and Ihe providing of recommendations to Ihe
Cabinet, Legislature, and appropriate state agency on
any measures deemed necessary lo ensure lhat such
1057
-------
*. 377.703
1992 SUPPLEMENT TO FLOBIDA STATUTES 1991
1. 377.703
plans and programs ate consistent with stale energy
policy.
(b) "Energy conservation" means increased • Hi-
ciency in the ulihzalion ol energy.
(c) "Energy emergency" means an actual or impend
ing shortage or curtailment ol usable, necessary energy
resources, such that the maintenance ol necessary ser-
vices. Ihe protection ol public health, salely. and wel
lare. or the maintenance ol basic sound economy is
imperiled in any geographical section ol the slate or
throughout Ihe entire stale.
(d) "Energy source' means electricity, lossil luels.
solar power, wind power, hydroelectric power, nuclear
power, or any other resource which has the capacity to
do work.
(e) "Facilities* means any building or structure not
otherwise exempted by Ihe provisions ol this act.
(I) "Fuel" means petroleum, crude oil. petroleum
product, coal, natural gas. or any other substance used
primarily lor its energy content.
(g) "Local government" means any county, municl-
palily, regional planning agency, or other special district
or local governmental entity the policies or programs ol
which may allecl the supply or demand, or both, lot
energy in Ihe slate.
(h) "Promotion" or "promote" means to encourage,
aid. assist, provide technical and financial assistance, or
otherwise seek to plan, develop, and expand.
(<) "Regional planning agency* means Ihose agen-
cies designated as regional planning agencies by Ihe
Department ol Community Allairs.
(j) 'Renewable energy resource' means any
method, process, or substance the use ol which does
not diminish its availability or abundance, including, but
not limited lo. biomass conversion, geothermal energy,
solar energy, wind energy, wood lusts derived Irom
waste, ocean thermal gradient power, hydroelectric
power, and luels derived Irom agricultural products.
(3) DEPARTMENT OF COMMUNITY AFFAIRS;
DUTIES —The Department ol Community Allairs Shall,
in addition to assuming Ihe duties and responsibilities
provided by ss. 20.18 and 377.701. perform Ihe following
functions consistent with the development ol a slate
energy policy:
(a) The department shall assume the responsibly
for development of an energy emergency contingency
plan lo respond lo serious shortages ol primary and sec-
ondary energy sources in coordination with Ihe Florida
Public Service Commission, which shatt have exclusive
responsibility for electrical end natural gas emergency
contingency plans. Upon s linding by the Governor,
implementation ol any emergency program shaR be
upon order ol the Governor that a particular kind or type
ol fuel is. or lhat Ihe occurrence ol an event which is rea-
sonably expected within 30 days will make Ihe fuel, in
short supply. The department shad then respond by
instituting the appropriate measures ol Ihe contingency
plan to meet Ihe given emergency or energy shortage.
The Governor may utilize Ihe provisions ol s. 252 36<5)
lo carry out any emergency actions required by a seri-
ous shortage of energy sources.
(b) The department shall constitute Ihe responsible
slate agency lor performing or coordinating Ihe tunc
lions ol any federal energy programs delegated lo Ihe
slate, including energy supply, demand, conservation,
or allocation.
(c) The department shall analyze present and pro
posed federal energy programs and make recommend!
lions regarding Ihose programs lo Ihe Governor.
The department shall coordinate elicits to seek
federal support or other suppoil lor stale energy aclivi-
ties, including energy conservation, icseaich. or devel-
opment. and shall be Ihe slate agency responsible lor
Ihe coordination of mulliagcncy energy conservation
programs and plans.
(e) The department shall analyze energy data cot
lecled and prepare long-range lorecasts of energy sup-
ply and demand in coordination with Ihe Florida Public
Service Commission, which shall have responsibility lor
electricity and natural gas forecasts. To this end. the
forecasts shall contain:
1. An analysis ol Ihe relationship ol slate economic
growth and development to energy supply and demand,
including Ihe constraints to economic growth resulting
(torn enetgy supply constraints.
2. Plans lor Ihe development ol renewable energy
resources and reduction in dependence on deplelable
energy resources, particularly oil and natural gas. and an
analysis ol Ihe extent lo which renewable energy
sources are being utilized in Ihe slate.
3. Consideration of alternative scenarios ol state-
wide energy supply and demand lor S. 10. and 20 years,
to identify strategies lor long-range action, including
identification of potential social, economic, and environ-
mental effects
4. An assessment ol Ihe state's energy resources.
Inducing examination ol the availability ol commercially
developable and Imported fuels, and an analysis of
anticipated effects on the stale's environment and social
services resulting tiom energy resource development
activities or Irom energy supply constraints, or both.
(I) The department shall make an annual report lo
Ihe Legislature. 60 days prior to each regular session,
reflecting its activities and making recommendations ol
policies for improvement ol Ihe slate s response to
energy supply and demand and its ellect on the health,
salely. and wellare ol the people ol Florida. The report
shad include a report from Ihe Florida Public Service
Commission on electricity and natural gas and informa-
tion on energy conservation programs conducted and
under way in Ihe past year and shall include recommen-
dations lor energy conservation programs lor the slate,
including, but not limited to. Ihe following lactors:
1. Formulation of specific recommendations for
improvement in the etticiency ol energy utilization in
governmental, residential, commercial, industrial, and
transportation sectors.
2. Collection and dissemination ol information relat-
ing lo energy conservation.
3. Development and conduct ol educational and
training programs relating lo energy conservation.
4. An analysis ol Ihe ways in which stale agencies
are seeking to implement s. 377 G01(4). Ihe slate energy
policy, and recommendations lor belter lulfilling this pol
icy.
1058
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
CHAPTER 403
ENVIRONMENTAL CONTROL
PART I POLLUTION CONTROL (ss. 403.011-403.4153)
PART II ELECTRICAL POWER PLANT SITING (88. 403.501-403.539)
PART III INTERSTATE ENVIRONMENTAL CONTROL COMPACT (s. 403.60)
PART IV RESOURCE RECOVERY AND MANAGEMENT (88. 403.702-403.7893)
PART V ENVIRONMENTAL REGULATION (ss. 403.801-403.8171)
PART VI DRINKING WATER (ss. 403.850-403.864)
PART VII MISCELLANEOUS («. 403.90)
PART VIII PERMITTING OF ACTIVITIES IN WETLANDS (ss. 403.91-403.938)
PARTI
POLLUTION CONTROL
403.011 Short title.
403.021 Legislative declaration; public policy.
403.031 Definitions.
403.051 Meetings; hearings and procedure.
403.061 Department; powers and duties.
403.0615 Water resources restoration and preserva-
tion.
403.062 Pollution control; underground, surface, and
coastal waters.
403.0625 Environmental laboratory certification; water
quality tests conducted by a certified labo-
ratory.
403.063 Ground water quality monitoring.
403.064 Reuse of reclaimed water.
403.072 Pollution Prevention Act.
403.073 Pollution prevention; state goal; agency pro-
grams; public education.
403.074 Technical assistance by the department.
403.081 Performance by other state agencies.
403.085 Sanitary sewage disposal units: advanced
and secondary waste treatment: industrial
waste, ocean outfall, inland outfall, or dis-
posal well waste treatment.
403.086 Sewage disposal facilities: advanced and
secondary waste treatment.
403.0861 Scallop processing; discharge standards.
403.0862 Discharge of waste from state groundwater
cleanup operations to publicly owned
treatment works.
403.087 Permits; general issuance; denial; revoca-
tion; prohibition; penalty.
403.0871 Florida Permit Fee Trust Fund.
403.0875 Citation of rule.
403.0876 Permits; processing.
403.0877 Certification by professionals regulated by
the Department of Professional Regula-
tion.
403.088 Water pollution operation permits; temporary
permits; conditions.
403.0881 Sewage or disposal systems or water treat-
ment works; construction permits.
403.0885 Establishment of federally approved state
National Pollutant Discharge Elimination
System (NPDES) program.
403.0891 State, regional, and local stormwater man-
agement plans and programs.
403.0893 Stormwater funding; dedicated funds for
stormwater management.
403.0896 Training and assistance for stormwater man-
agement system personnel.
403.091 Inspections.
403.092 Package sewage treatment facilities; inspec-
tion.
403.101 Classification and reporting; regulation of
operaiors of water purification plants and
wastewater treatment plants.
403.111 Confidential records.
403.121 Enforcement; procedure; remedies.
403.131 Injunctive relief, cumulative remedies.
403.135 Persons who accept wastewater for spray
irrigation; civil liability.
403.141 Civil liability; joint and several liability.
403.151 Compliance with rules or orders of depart-
ment.
403.161 Prohibitions, violation, penalty, intent.
403.165 Use of pollution awards; pollution recovery
fund.
403.1655 Environmental short-term emergency
response program.
403.1659 Florida Groundwater Protection Task Force.
403.1815 Construction of water distribution mains and
sewage collection and transmission sys-
tems; local regulation.
403.182 Local pollution control programs.
403.1821 Water pollution control and sewage treat-
ment.
403.1822 Definitions for ss. 403.1821-403.1832.
403.1823 Department of Environmental Regulation;
rulemaking authority; administration of
funds.
403.1824 State Water Pollution Control Trust Fund.
1
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Ch. 403 ENVIRONMENTAL CONTROL F.S. 1991
<103.1825 Grant payments.
403.1826 Grants, requirements for eligibility.
403.1829 Funding of projects; priorities.
403.1832 Department to accept federal aid.
403.1834 State bonds to finance or refinance facilities;
exemption from taxation.
403.1835 Sewage treatment facilities revolving loan
program.
403.1838 Smail Community Sewer Construction
Assistance Act.
403.191 Construction in relation to other law.
403.201 Variances.
403.221 Pending proceedings.
403.231 Department of Legal Affairs to represent the
state.
403.251 Safety clause.
403.261 Provisions specifying jurisdiction repealed.
403.265 Peat mining; permitting.
403.281 Definitions; weather modification law.
403.291 Purpose of weather modification law.
403.301 Artificial weather modification operation;
license required.
403.311 Application for weather modification licens-
ing; fee.
403.321 Proof of financial responsibility.
403.331 Issuance of license; suspension or revoca-
tion; renewal.
403.341 Filing and publication of notice of intention to
operate; limitation on area and time.
403.351 Contents of notice of intention.
403.361 Publication of notice of intention.
403.371 Proof of publication.
403.381 Record and reports of operations.
403.391 Emergency licenses.
403.401 Suspension or revocation of license.
403.411 Penalty.
403.412 Environmental Protection Act.
403.413 Florida Litter Law.
403.4131 'Keep Florida Beautiful, Incorporated'; Clean
Florida Commission; placement of signs.
403.4132 Litter pickup and removal.
403.4135 Litter receptacles.
403.414 Environmental award program.
403.415 Motor vehicle noise.
403.4151 Exempt motor vehicles.
403.4153 Federal preemption.
403.011 Short title.—This act shall be known and
cited as the "Florida Air and Water Pollution Control Act."
tttttory.—« 2. en 67-436.
403.021 Legislative declaration; public policy.—
(1) The pollution of the air and waters of this state
constitutes a menace to public health and welfare;
creates public nuisances; is harmful to wildlife and fish
and other aquatic life; and impairs domestic, agricul-
tural, industrial, recreational, and other beneficial uses
of air and water.
(2) It is declared to be the public policy of this state
to conserve the waters of the state and to protect, main-
tain,'and improve the quality thereof for public water
supplies, for the propagation of wildlife and fish and
other aquatic life, and for domestic, agricultural, indus-
trial, recreational, and other beneficial uses and to pro-
vide that no wastes be discharged into any waters of the
state without first being given the degree of treatment
necessary to protect the beneficial uses of such water.
(3) It is declared to be the public policy of this state
and the purpose of this act to achieve and maintain such
levels of air quality as will protect human health and
safety and, to the greatest degree practicable, prevent
injury to plant and animal life and property, foster the
comfort and convenience of the people, promote the
economic and social development of this state, and facil-
itate the enjoyment of the natural attractions of this
state. In accordance with the public policy established
herein, the Legislature further declares that the citizens
of this state should be afforded reasonable protection
from the dangers inherent in the release of toxic or other-
wise hazardous vapors, gases, or highly volatile liquids
into the environment.
(4) It is declared that local and regional air and water
pollution control programs are to be supported to the
extent practicable as essential instruments to provide
for a coordinated statewide program of air and water pol-
lution prevention, abatement, and control for the secur-
ing and maintenance of appropriate levels of air and
water quality.
(5) It is hereby declared that the prevention, abate-
ment, and control of the pollution of the air and waters
of this state are affected with a public interest, and the
provisions of this act are enacted in the exercise of the
police powers of this state for the purpose of protecting
the health, peace, safety, and general welfare of the
people of this state.
(6) The Legislature finds and declares that control,
regulation, and abatement of the activities which are
causing or may cause pollution of the air or water
resources in the state and which are or may be detrimen-
tal to human, animal, aquatic, or plant life, or to property,
or unreasonably interfere with the comfortable enjoy-
ment of life or property be increased to ensure conserva-
tion of natural resources; to ensure a continued safe
environment; to ensure purity of air and water; to ensure
domestic water supplies; to ensure protection and pres-
ervation of the public health, safety, welfare, and eco-
nomic well-being; to ensure and provide for recreational
and wildlife needs as the population increases and the
economy expands; and to ensure a continuing growth
of the economy and industrial development.
(7) The Legislature further finds and declares that:
(a) Compliance with this law will require capital out-
lays of hundreds of millions of dollars for the installation
of machinery, equipment, and facilities for the treatment
of industrial wastes which are not productive assets and
increased operating expenses to owners without any
financial return and should be separately classified for
assessment purposes.
(b) Industry should be encouraged to install new
machinery, equipment, and facilities as technology in
environmental matters advances, thereby improving the
quality of the air and waters of the state and benefiting
the citizens of the state without pecuniary benefit to the
owners of industries; and the Legislature should pre-
scribe methods whereby just valuation may be secured
to such owners and exemptions from certain excise
2
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
taxes should be offered with respect to such installa-
tions.
(c) Facilities as herein defined should be classified
separately from other real and personal property of any
manufacturing or processing plant or installation, as
such facilities contribute only to general welfare and
health and are assets producing no profit return to own-
ers.
(d) Jn existing manufacturing or processing plants it
is more difficult to obtain satisfactory results in treating
industrial wastes than in new plants being now planned
or constructed and that with respect to existing plants
in many instances it will be necessary to demolish and
remove substantial portions thereof and replace the
same with new and more modern equipment in order to
more effectively treat, eliminate, or reduce tha objection-
able characteristics of any industrial was.fs and that
sucn replacements should be classified and assessed
differently from replacements made in the ordinary
course of business.
(8) The Legislature further finds and declares that
the public health, welfare, and safety may be affected
by disease-carrying vectors and pests. The department
shall assist all governmental units charged with the con-
trol of such vectors and pests. Furthermore, in reviewing
applications for permits, the department shall consider
the total well-being of the public and shall not consider
so'ely the ambient pollution standards when exercising
its powers, if there may be danger of a public health haz-
ard.
(9)(a) The Legislature finds and declares that it is
essential to preserve and maintain authorized water
depth in the existing navigation channels, port harbors,
turning basins, and harbor berths of this state in order
to provide for the continued safe navigation of deepwa-
ter shipping commerce. The department shall recognize
that maintenance of authorized channel depths is an
ongoing, continuous, beneficial, and necessary activity;
and it shall develop a regulatory process which shall
enable the ports of this state to conduct such activities
in an environmentally sound, expeditious, and efficient
manner.
(b) The provisions of paragraph (a) apply only to the
port waters, spoil disposal sites, port harbors, navigation
channels, turning basins, and harbor berths used for
deepwater commercial navigation in the ports of Jack-
sonville, Tampa, Port Everglades, Miami, Port Canaveral,
Ft. Pierce, Palm Beach, Port Manatee, Port St. Joe, Pan-
ama City, St. Petersburg, and Pensacola.
(10) It is the policy of the state to ensure that the exist-
ing and potential drinking water resources of the state
remain free from harmful quantities of contaminants.
The department, as the state water quality protection
agency, shall compile, correlate, and disseminate avail-
able information on any contaminant which endangers
or may endanger existing or potential drinking water
resources. It shall also coordinate its regulatory program
with the regulatory programs of other agencies to assure
adequate protection of the drinking water resources of
the state.
(11) It is the intent of the Legislature that water quality
standards be reasonably established and applied to
take into account the variability occurring in nature. The
department shall recognize the statistical variability
inherent in sampling and testing procedures that are
used to express water quality standards. The depart-
ment snail also recognize that some deviations from
water quality standards occur as the result of natural
background conditions. The department snail not con-
sider deviations from water quality standards to be viola-
tions when the discnarger can demonstrate that the
deviations would occur in the absence of any man-
induced discharges or alterations to the water body.
History.—9. 3. ch. 67-436: s. l. cn. 78-98: ss. l. 5. eft. 81-228: s 4. cn. 8^-7?:
i. 46, eft.84-338:». n,cn.85-2®.s. I,eft.85-277: a. 8.eft.86-186:s. 3.cn. 86-2)3
403.031 Definitions.—In construing this chapter, or
rules and regulations adopted pursuant hereto, the fol-
lowing words, phrases, or terms, unless the context oth-
erwise indicates, have the following meanings:
(1) "Contaminant" is any substance whicn is harmful
to plant, animal, or human life.
(2) "Department" is the Department of Environmen-
tal Regulation.
(3) "Effluent limitations" means any restriction estab-
lished by the department on quantities, rates, or concen-
trations of chemical, physical, biological, or other con-
stituents which are discharged from sources into waters
of the state.
(4) "Installation" is any structure, equipment, or facil-
ity, or appurtenances thereto, or operation which may
emit air or water contaminants in quantities prohibited
by rules of the department.
(5) "Person" means the state or any agency or insti-
tution thereof or any municipality, political subdivision,
public or private corporation, individual, partnership,
association, or other entity and includes any officer or
governing or managing body of any municipality, politi-
cal subdivision, or public or private corporation.
(6) "Plant" is any unit operation, complex, area, or
multiple of unit operations that produce, process, or
cause to be processed any materials, the processing of
which can, or may, cause air or water pollution.
(7) "Pollution" is the presence in the outdoor atmos-
phere or waters of the state of any substances, contami-
nants, noise, or manmaae or man-induced impairment
of air or waters or aJteration of the chemical, physical,
biological, or radiological integrity of air or water in quan-
tities or at levels which are or may be potentially harmful
or injurious to human health or welfare, animal or plant
life, or property or which unreasonably interfere with the
enjoyment of life or property, including outdoor recre-
ation unless au'horized by applicable law.
(8) "Pollution prevention" means the steps taken by
a potential generator of contamination or pollution to
eliminate or reduce the contamination or pollution before
it is discharged into the environment. The term includes
nonmandatory steps taken to use alternative forms of
energy, conserve or reduce the use of energy, substi-
tute nontoxic materials for toxic materials, conserve or
reduce the use of toxic materials and raw materials,
reformulate products, modify manufacturing or other
processes, improve in-plant maintenance and opera-
tions, implement environmental planning before expand-
ing a facility, and recycle toxic or other raw materials.
3
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(9) "Sewerage system" means pipelines or conduits,
pumoing stations, and force mains and a!! other struc-
tures, devices, appurtenances, and facilities usee for
collecting or conducting wastes to an ultimate point for
treatment or disposal.
(1C) "Source" is any and all points of origin of the item
defined in subsection (1), whether privately or publicly
owned or operated.
(11) Treatment works' and "disposal systems" mean
any plant or other works used for the purpose of treat-
ing, stabilizing, or holding wastes.
(12) "Wastes" means sewage, industrial wastes, and
all other liquid, gaseous, solid, radioactive, or other sub-
stances which may pollute or tend to pollute any waters
of the state.
(13) "Waters" include, but are not limited to, rivers,
lakes, streams, springs, impoundments, and all other
waters or bodies of water, including fresh, brackish,
saline, tidal, surface, or underground waters. Waters
owned entirely by one person other than the state are
included only in regard to possible discharge on other
property or water. Underground waters include, but are
not limited to, all underground waters passing through
pores of rock or soils or flowing through in channels,
whether manmade or natural. Solely for purposes of this
chapter, waters of the state also include the area
bounded by the following:
(a) Commence at the intersection of State Road
(SRD) 5 (U.S. 1) and the county line dividing Dade and
Monroe Counties, said point also being the mean high-
water line of Florida Bay, located in section 4, township
60 south, range 39 east of the Tallahassee Meridian for
the point of beginning. From said point of beginning,
thence run northwesterly along said SRD 5 to an inter-
section with the north line of section 18, township 58
south, range 39 east; thence run westerly to a point
marking the southeast corner of section 12, township 58
south, range 37 east, said point also lying on the east
boundary of the Everglades National Park; thence run
north along the east boundary of the aforementioned
Everglades National Park to a point marking the north-
east corner of section 1, township 58 south, range 37
east: thence run west along said park to a point marking
the northwest corner of said section 1; thence run north-
erly along said park to a point marking the northwest
corner of section 24, township 57 south, range 37 east:
thence run westerly along the south lines of sections 14,
15, and 16 to the southwest corner of section 16; thence
leaving the Everglades National Park boundary run
northerly along the west line of section 16 to the north-
west corner of section 16; thence east along the north-
erly line of section 16 to a point at the intersection of the
east one-half and west one-half of section 9: thence
northerly along the line separating the east one-half and
the west one-half of sections 9, 4, 33, and 28; thence
run easterly along the north line of section 28 to the
northeast corner of section 28; thence run northerly
along the west line of section 22 to the northwest corner
of section 22; thence easterly along the north line of sec-
tion 22 to a point at the intersection of the east one-half
and west one-half of section 15; thence run northerly
along said line to the point of intersection with the north
line of section 15; thence easterly along the north line of
section 15 ;o the northeast corner o'< section 15: thence
run northerly aiong the west lines of sections 11 anc 2
to the northwest corner of section 2: thence run easterly
along the nortn lines of sections 2 and 1 to the northeast
corner of section 1, township 55 south, range 37 east:
thence run north along the east iine of section 36, town-
ship 55 south, range 37 east to the northeast corner of
section 36: thence run west along the north line of sec-
tion 36 to the northwest corner ol section 36: thence run
north along the west line of section 25 to the northwest
corner of section 25: thence run west along the north line
of section 26 to the northwest corner of section 26;
thence run north along the west line of section 23 to the
northwest corner of section 23; thence run easterly
along the north line of section 23 to the northeast corner
of section 23; thence run north along the west line of
section 13 to the northwest corner of section 13: thence
run east along the north line of section 13 to a poini of
intersection with the west line of the southeast one-
quarter of section 12; thence run north along the west
line of the southeast one-quarter of section 12 to the
northwest corner of the southeast one-quarter of sec-
tion 12: thence run east along the north line of 'he south-
east one-quarter of section 12 to the point o; intersec-
tion with the east line of section 12; thence run east
along the south line of the northwest one-quarter of sec-
tion 7 to the southeast corner of the northwest one-
quarter of section 7: thence run north along the east line
of the northwest one-quarter of section 7 to the point of
intersection with the north line of section 7; thence run
northerly along the west line of the southeast one-
quarter of section 6 to the northwest corner of the south-
east one-quarter of section 6; thence run east along the
north lines of the southeast one-quarter of section 6 and
the southwest one-quarter of section 5 to the northeast
corner of the southwest one-quarter of section 5;
thence run northerly along the east line of the northwest
one-quarter of section 5 to the point of intersection with
the north line of section 5; thence run northerly along the
line dividing the east one-half and the west one-half of
Lot 5 to a point intersecting the north line of Lot 5;
thence run east along the north line of Lot 5 to the north-
east corner of Lot 5, township 54'/j south, range 38 east;
thence run north along the west line of section 33, town-
ship 54 south, range 38 east to a point intersecting the
northwest corner of the southwest one-quarter of sec-
tion 33; thence run easterly along the north line of the
southwest one-quarter of section 33 to the northeast
corner of the southwest one-quarter of section 33.
thence run north along the west line of the northeast
one-quarter of section 33 to a point intersecting the
north line of section 33: thence run easterly along the
north line of section 33 to the northeast corner of section
33; thence run northerly along the west line of section
27 to a point intersecting the northwest corner of the
southwest one-quarter of section 27; thence run east-
erly to the northeast corner of the southwest one-
quarter of section 27; thence run northerly along the
west line of the northeast one-quarter of section 27 to
a point intersecting the north line of section 27; thence
run west along the north line of section 27 to the north-
west corner of section 27: thence run north along the
west lines of sections 22 and 15 to the northwest corner
4
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
of section 15: thence run easterly along the north lines
of sections 15 and 14 to the point of intersection with the
L-31N Levee, said intersection located near the south-
east corner of section 11, township 54 south, range 38
east: thence run northerly along Levee L-31N crossing
SRD 90 (U.S. 41 Tamiami Trail) to an intersection com-
mon to Levees L-31N. L-29, and L-30, said intersection
located near the southeast corner of section 2, township
54 south, range 38 east, thence run northeasterly, north-
erly, and northeasterly along Levee L-30 to a point of
intersection with the Dade/Broward Levee, said inter-
section located near the northeast corner of section 17,
township 52 south, range 39 east: thence run due east
to a point of intersection with SRD 27 (Krome Ave.);
thence run northeasterly along SRD 27 to an intersection
with SRD 25 (U.S. 27), said intersection located in sec-
tion 3, township 52 south, range 39 east- thence run
northerly along said SRD 25, entering into Broward
County, to an intersection with SRD 84 at Andytown;
thence run southeasterly along the aforementioned SRD
84 to an intersection with the southwesterly prolonga-
tion of Levee L-35A, said intersection being located in
the northeast one-quarter of section 5, township 50
south, range 40 east; thence run northeasterly along
Levee L-35A to an intersection of Levee L-36, said inter-
section located near the southeast corner of section 12,
township 49 south, range 40 east: thence run northerly
along Levee L-36, entering into Palm Beach County, to
an intersection common to said Levees L-36, L-39, and
L—40, said intersection located near the west quarter
corner of section 19, township 47 south, range 41 east;
thence run northeasterly, easterly, and northerly along
Levee L-40. said Levee L-40 being the easterly bound-
ary of the Loxahatchee National Wildlife Refuge, to an
intersection with SRD 80 (U.S. 441), said intersection
located near the southeast corner of section 32, town-
ship 43 south, range 40 east; thence run westerly along
the aforementioned SRD 80 to a point marking the inter-
section of said road and the northeasterly prolongation
of Levee L-7, said Levee L-7 being the westerly bound-
ary of the Loxahatchee National Wildlife Refuge; thence
run southwesterly and southerly along said Levee L-7
to an intersection common to Levees L-7, L-15 (Hills-
borough Canal), and L-6; thence run southwesterly
along Levee L-6 to an intersection common to Levee
L-6, SRD 25 (U.S. 27), and Levee L-5, said intersection
being located near the northwest corner of section 27,
township 47 south, range 38 east: thence run westerly
along the aforementioned Levee L-5 to a point intersect-
ing the east line of range 36 east; thence run northerly
along said range line to a point marking the northeast
corner of section 1, township 47 south, range 36 east;
thence run westerly along the north line of township 47
south, to an intersection with Levee L-23/24 (Miami
Canal); thence run northwesterly along the Miami Canal
Levee to a point intersecting the north line of section 22,
township 46 south, range 35 east; thence run westerly
to a point marking the northwest corner of section 21
township 46 south, range 35 east; thence run southerly
to the southwest corner of said section 21; thence run
westerly to a point marking the northwest corner of sec-
tion 30. township46 south, range 35 east, said point also
being on the line dividing Palm Beach and Hendry Coun-
ties; from said point, thence run southerly along said
county line to a point marking the intersection of Brow-
ard, Hendry, and Collier Counties, said point also being
the northeast corner of section 1, township 49 south,
range 34 east; thence run westerly along the line divid-
ing Hendry and Collier Counties and continuing along
the prolongation thereof to a point marking the south-
west corner of section 36, township 48 south, range 29
east; thence run southerly to a point marking the south-
west corner of section 12, township 49 south, range 29
east; thence run westerly to a point marking the south-
west corner of section 10, township 49 south, range 29
east; thence run southerly to a point marking the south-
west corner of section 15, township 49 south, range 29
east: thence run westerly to a point marking the north-
west corner of section 24, township 49 south, range 28
•east, said point lying on the west boundary of the Bic
Cypress Area of Critical State Concern as described in
'Rule 27F-3, Florida Administrative Code; thence run
southerly along said boundary crossing SRD 84 (Alliga-
tor Alley) to a point marking the southwest corner of sec-
tion 24, township 50 south, range 28 east; thence leav-
ing the aforementioned west boundary of the Big
Cypress Area of Critical State Concern run easterly to
a point marking the northeast corner of section 25, town-
ship 50 south, range 28 east; thence run southerly along
the east line of range 28 east to a point lying approxi-
mately 0.15 miles south of the northeast corner of sec-
tion 1, township 52 south, range 28 east; thence run
southwesterly 2.4 miles more or less to an intersection
with SRD 90 (U.S. 41 Tamiami Trail), said intersection
lying 1.1 miles more or less west of the east line of range
28 east; thence run northwesterly and westerly along
SRD 90 to an intersection with the west line of section
10, township 52 south, range 28 east; thence leaving
SRD 90 run southerly to a point marking the southwest
corner of section 15, township 52 south, range 28 east:
thence run westerly crossing the Faka Union Canal 0.6
miles more or less to a point; thence run southerly and
parallel to the Faka Union Canal to a point located on the
mean high-water line of Faka Union Bay; thence run
southeasterly along the mean high-water line of the vari-
ous bays, rivers, inlets, and streams to the point of
beginning.
(b) The area bounded by the line described in para-
graph (a) generally includes those waters to be known
as waters of the state. The landward extent of these
waters shall be determined as provided in s. 403.817.
Any waters which are outside the general boundary line
described in paragraph (a) but which are contiguous
thereto by virtue of the presence of a watercourse or as
determined pursuant to 2s. 17-4.022, Florida Administra-
tive Code, shall be a part of this water body. Any areas
within the line described in paragraph (a) which are not
within the jurisdiction of the department as determined
pursuant to 2s. 17-4.022, Florida Administrative Code,
shall be excluded therefrom. If the Florida Environmental
Regulation Commission designates the waters within
the boundaries an Outstanding Florida Water, waters
outside the boundaries shall not be included as part of
such designation unless a hearing is held pursuant to
notice in each appropriate county and the boundaries of
5
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
such lanas are specifically considered and described (or
such designation.
(14) "State water policy" means the comprehensive
statewide policy as adopted by the department pursu-
ant to ss. 373.026 and 403.061, setting forth goals,
objectives, and guidance for the development and
review of programs, rules, and plans relating to water
resources.
(15) "Stormwater management program" means the
institutional strategy for stormwater management,
including urban, agricultural, and other stormwater.
(16) "Stormwater management system" means a sys-
tem which is designed and constructed or implemented
to control discharges which are necessitated by rainfall
events, incorporating methods to collect, convey, store,
absorb, inhibit, treat, use, or reuse water to prevent or
reduce flooding, overdrainage, environmental degrada-
tion and water pollution or otherwise affect the quantity
and quality of discharges from the system.
(17) "Stormwater utility" means the funding of a storm-
water management program by assessing the cost of
the program to the beneficiaries based on their relative
contribution to its need. It is operated as a typical utility
which bills services regularly, similar to water and waste-
water services.
(18) "Watershed" means the land area which contrib-
utes to the flow of water into a receiving body of water.
History.—1.4. cn. 67-436: •>. 26. 35. cn. 69-106: s. 1. ch. 71-36: i. Z en. 71-137;
>. 1S3. cn. 71-377; t.l.cn. 73-«6: • H2.cn. 73-333: M. 1. 2.cn. 74-133;«. 1. cn.
77-174: r 72. eft. 79-66: s. 13, cn. 84-79: s. I. cn. 89-143: I. 30. cn. 89-279: •. 22.
eft. 91-306.
'Not*.—Transferred to another loctfion.
¦Note.—Transferred to anotfter location.
403.051 Meetings; hearings and procedure.—
(1) The department shall cause a transcript of the
proceedings at all meetings to be made.
(2)(a) Any department planning, design, construc-
tion, modification, or operating standards, criteria, and
requirements for treatment works, disposal systems,
and sewerage systems for wastes from any source shall
be promulgated as a rule or regulation.
(b) The department shall not withhold the issuance
of a permit to consider matters not addressed by the
permit application or to consider standards, criteria, and
requirements not adopted as required by paragraph (a).
History.—i. 6. eft. 67-436; is. 26.35. cn. 09-106; s. 1. cn. 70-84; s. 2, cn. 71-137;
s. 1. en. 71-138: s. 154. en. 71-377: s. l.cn. 72-223: s. 1. cn. 74-308: s. 14. cn. 78-95:
s. 58. ch. 83-218.
403.061 Department; powers and duties.—The
department shall have the power and the duty to control
and prohibit pollution of air and water in accordance with
the law and rules and regulations adopted and promul-
gated by it and, for this purpose, to:
(1) Approve and promulgate current and long-range
plans developed to provide for air and water quality con-
trol and pollution abatement.
(2) Hire only such employees as may be necessary
to effectuate the responsibilities of the department.
(3) Utilize the facilities and personnel of other state
agencies, including the Department of Health and Reha-
bilitative Services, and delegate to any such agency any
duties and functions as the department may deem nec-
essary to carry out the purposes of this act.
(4) Secure necessary scientific, technical, research,
administrative, and operational services by interagency
agreement, by contract, or otherwise. All state agencies,
upon direction of the department, shall make these ser-
vices and facilities available.
(5) Accept state appropriations and loans and
grants from the Federal Government and from other
sources, public or private, wh:ch loans and grants shall
not be expended for other than the purposes of this act,
(6) Exercise general supervision of the administra-
tion and enforcement of the laws, rules, and regulations
pertaining to air and water pollution.
(7) Adopt, modify, and repeal rules and regulations
to carry out the intent and purposes of this act. Any rule
or regulation adopted pursuant to this act shall be
consistent with the provisions of federal law, if any, relat-
ing to control of emissions from motor vehicles, effluent
limitations, pretreatment requirements, or standards of
performance. Rules adopted pursuant to this act shall
not require dischargers of waste into waters of the state
to improve natural background conditions. D'scharges
from steam electric generating plants existing or
licensed under this chapter on July 1, 1984, shall not be
required to be treated to a greater extent than may be
necessary to assure that the quality of nonthermal com-
ponents of discharges from nonrecirculated cooling
water systems is as high as the quality of the makeup
waters; that the quality of nonthermal components of
discharges from recirculated cooling water systems is
no lower than is allowed for blowdown from such sys-
tems: or that the quality of noncooling system dis-
charges which receive makeup water from a receiving
body of water which does not meet applicable depart-
ment water quality standards is as high as the quality of
the receiving body of water. The department may not
adopt standards more stringent than federal regula-
tions, except as provided in s. 403.804.
(8) Issue such orders as are necessary to effectuate
the control of air and water pollution and enforce the
same by all appropriate administrative and judicial pro-
ceedings.
(9) Adopt a comprehensive program for the preven-
tion, control, and abatement of pollution of the air and
waters of the state, and from time to time review and
modify such program as necessary.
(10) Develop a comprehensive program for the pre-
vention, abatement, and control of the pollution of the
waters of the state. In order to effect this purpose, a
grouping of the waters into classes may be made in
accordance with the present and future most beneficial
uses. Such classifications may from time to time be
altered or modified. However, before any such classifi-
cation is made, or any modification made thereto, public
hearings shall be held by the department.
(11) Establish ambient air quality and water quality
standards for the state as a whole or for any part thereof,
and also standards for the abatement of excessive and
unnecessary noise. The department is authorized to
establish reasonable zones of mixing for discharges into
waters.
(a) When a receiving body of water fails to meet a
water quality standard for pollutants set forth in depart-
ment rules, a steam-electric generating plant discharge
6
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 4C3
of pollutants that is existing or licensed under this chap-
ter on July 1, 1984, may nevertheless be granted a mix-
ing zone, provided that:
1. The standard would not be met in the water body
in the ebsence of the discharge:
2. The discharge is in compliance with all applica-
ble technology-based effluent limitations:
3. The discharge does not cause a measurable
increase in the degree of noncompliance with the stan-
dard at the boundary of the mixing zone: and
4. The discharge otherwise complies with the mix-
ing zone provisions specified in department rules.
(b) No mixing zone for point source discharges shall
be permitted in Outstanding Florida Waters except for:
1. Sources which have received permits from the
department prior to April 1,1982, or the date of designa-
tion, whichever is later:
2. Blowdown from new power plants certified pur-
suant to the Florida Electrical Power Plant Siting Act;
and
3. Discharges of water necessary for water man-
agement purposes which have been approved by the
governing board of a water management district and, if
required by law, by the secretary.
Nothing in this act shall be construed to invalidate any
existing department rule relating to mixing zones. The
department shall cooperate with the Department of
K.yhway Safety and Motor Vehicles in the development
of regulations required by s. 316.272(1).
(12)(a) Cause field studies to be made and samples
to be taken out of the air and from the waters of the state
periodically and in a logical geographic manner so as to
determine the levels of air quality of the air and water
quality of the waters of the state.
(b) Determine the source of the pollution whenever
a study is made or a sample collected which proves to
be below the air or water quality standard set for air or
water.
(13) Require persons engaged in operations which
may result in pollution to file reports which may contain
information relating to locations, size of outlet, height of
outlet, rate and period of emission, and composition and
concentration of effluent and such other information as
the department shall prescribe to be filed relative to pol-
lution.
(14) Establish a permit system whereby a permit may
be required for the operation, construction, or expansion
of any installation that may be a source of air or water
pollution and provide for the issuance and revocation of
such permits and for the posting of an appropriate bond
to operate.
(a) Notwithstanding any other provision of this chap-
ter, the Department of Environmental Regulation may
authorize, by rule, the Department of Transportation to
perform any activity requiring a permit from the Depart-
ment of Environmental Regulation covered by this chap-
ter, upon certification by the Department of Transporta-
tion that it will meet all requirements imposed by statute,
rule, or standard for environmental control and protec-
tion as such statute, rule, or standard applies to a gov-
ernmental program. To this end, the Department of Envi-
ronmental Regulation may accept such certification of
compliance for programs of the Department of Transpor-
tation, may conduct investigations for compliance, and.
if a violation is found to exist, may take ail necessary
enforcement action pertaining thereto, including, but
not limited to, the revocation of certification. The authori-
zation shall be by rule of the Department of Environmen-
tal Regulation, shall be limited to the maintenance,
repair, or replacement of existing structures, and shall
be conditioned upon compliance by the Department of
Transportation with specific guidelines or requirements
which are set forth in the formal acceptance and
deemed necessary by the Department of Environmental
Regulation to assure future compliance with this chapter
and applicable department rules. The failure of the
Department of Transoortation to comply with any previ-
sion of the written acceptance shall constitute grounds
for its revocation by the Department of Environmental
Regulation.
(b) The provisions of chapter 120 shall be accorded
any person when substantial interests will be affected
by an activity proposed to be conducted by the Depart-
ment of Transportation pursuant to its certification and
the acceptance of the Department of Environmental
Regulation. If a proceeding is conducted pursuant to s.
120.57, the Department of Environmental Regulation
may intervene as a party. Should a hearing officer of the
Division of Administrative Hearings of the Department of
Administration submit a recommended order pursuant
to s. 120.57, the Department of Environmental Regula-
tion shall issue a final department order adopting, reject-
ing, or modifying the recommended order pursuant to
such action.
(15) Consult with any person proposing to construct,
install, or otherwise acquire a pollution control device or
system concerning the efficacy of such device or sys-
tem, or the pollution problem which may be related to
the source, device, or system. Nothing in any such con-
sultation shall be construed to relieve any person from
compliance with this act, rules and regulations of the
department, or any other provision of law.
(16) Encourage voluntary cooperation by persons
and affected groups to achieve the purposes of this act.
(17) Encourage local units of government to handle
pollution problems within their respective jurisdictions
on a cooperative basis and provide technical and con-
sultative assistance therefor.
(18) Encourage and conduct studies, investigations,
and research relating to pollution and its causes, effects,
prevention, abatement, and control.
(19) Make a continuing study of the effects of the
emission of air contaminants from motor vehicles on the
quality of the outdoor atmosphere of this state and the
several parts thereof and make recommendations to
appropriate public and private bodies with respect
thereto.
(20) Collect and disseminate information and conduct
educational and training programs relating to pollution.
(21) Advise, consult, cooperate, and enter into agree-
ments with other agencies of the state, the Federal Gov-
ernment, other states, interstate agencies, groups, polit-
ical subdivisions, and industries affected by the provi-
sions of this act, rules, or policies of the department.
7
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(22) Adopt, modify, and repeal rules governing the
specifications, construction, ana maintenance of indus-
trial reservoirs, dams, and containers which store or
retain inaustrial wastes of a deleterious nature.
(23) Adopt rules and regulations to ensure that no
detergents are sold in Florida after December 31, 1972,
which are reasonably found to have a harmful or deleteri-
ous effect on human health or on the environment. Any
regulations adopted pursuant to this subsection shall
apply statewide. Subsequent to the promulgation of
such rules and regulations, no county, municipality, or
other local political subdivision shall adopt or enforce
any local ordinance, special law, or local regulation gov-
erning detergents which is less stringent than state law
or regulation. Regulations, ordinances, or special acts
adopted by a county or municipality governing deter-
gents shall be subject to approval by the department,
except that regulations, ordinances, or special acts
adopted by any county or municipality with a local pollu-
tion control program approved pursuant to s. 403.182
shall be approved as an element of the local pollution
control program.
(24)(a) Establish a permit system to provide for spoil
site approval, as may be requested and required by
local governmental agencies as defined in s.
403.1822(3), or mosquito control districts as defined in
s. 388.011(2), to facilitate these agencies in providing
spoil sites for the deposit of spoil from maintenance
dredging of navigation channels, port harbors, turning
basins, and harbor berths, as part of a federal project,
when the agency is acting as sponsor of a contemplated
dredge and fill operation involving an established navi-
gation channel, harbor, turning basin, or harbor berth. A
spoil site approval granted to the agency shall be
granted for a period of 10 to 25 years when such site is
not inconsistent with an adopted local governmental
comprehensive plan and the requirements of this chap-
ter. The department shall periodically review each per-
mit to determine compliance with the terms and condi-
tions of the permit. Such review shall be conducted at
least once every 10 years.
(b) This subsection applies only to those mainte-
nance dredging operations permitted after July 1, 1980,
where the United States Army Corps of Engineers is the
prime dredge and fill agent and the local governmental
agency is acting as sponsor for the operation, and does
not require the redesignation of currently approved spoil
sites under such previous operations.
(25) Establish and administer a program for the resto-
ration and preservation of bodies of water within the
state. The department shall have the power to acquire
lands, to cooperate with other applicable state or local
agencies to enhance existing public access to such
bodies of water, and to adopt all rules necessary to
accomplish this purpose.
(26)(a) Develop standards and criteria for waters
used lor deepwater shipping which standards and
criteria consider existing water quality; appropriate mix-
ing zones and other requirements for maintenance
dredging in previously constructed deepwater naviga-
tion channels, port harbors, turning basins, or harbor
berths: and appropriate mixing zones for disposal of
spoil material from dredging and, where necessary,
develop a separate classification tor such waters. Such
classification, stanaarcs. and criteria snail recognize
that the present dedicated use of these waters is for
deepwater commercial navigation.
(b) The provisions of paragraph (a) apply only to the
port waters, spoil disposal sites, port narbors, navigation
channels, turning basins, and harbor berths used for
deepwater commercial navigation in the ports of Jack-
sonville, Tampa, Port Everglades, Miami, Port Canaveral,
Ft. Pierce, Palm Beach, Port Manatee, Port St. Joe. Pan-
ama City, St. Petersburg, Port Bartow, Florida Power
Corporation's Crystal River Canal, Boca Grande, Green
Cove Springs, and Pensacola.
(27) Estaolish rules which provide for a special cate-
gory of water bodies within the state, to be referred to
as "Outstanding Florida Waters." which water bodies
shall be worthy of special protection because of their
natural attributes. Nothing in this subsection shall affect
any existing rule of the department.
(28) Perform any other act necessary to control and
prohibit air and water pollution, and to delegate any of
its responsibilities, authority, and powers, other than
rulemaking powers, to any state agency now or hereinaf-
ter established.
(29) Adopt by rule special criteria to protect Class II
shellfish harvesting waters. Rules previously adopted by
the department in 's. 17—4.28(8)(a), Florida Administra-
tive Code, are hereby ratified and determined to pe a
valid exercise of delegated legislative authority and shall
remain in effect unless amended by the Environmental
Regulation Commission.
(30) Establish requirements by rule that reasonably
protect the public health and welfare from electric and
magnetic fields associated with existing 230 kV or
greater electrical transmission lines, new 230 kV and
greater electrical transmission lines for which an applica-
tion for certification under the Transmission Line Siting
Act, ss. 403.52-403.5365, is not filed, new or existing
electrical transmission or distribution lines with voltage
less than 230 kV, and substation facilities. Notwithstand-
ing any other provision in this chapter or any other law
of this state or political subdivision thereof, the depart-
ment shall have exclusive jurisdiction in the regulation of
electric and magnetic fields associated with all electrical
transmission and distribution lines and substation facili-
ties. However, nothing herein shall be construed as
superseding or repealing the provisions of s. 403.523(1)
and (10).
(31) Adopt rules necessary to obtain approval from
the U.S. Environmental Protection Agency to administer
the Federal National Pollution Discharge Elimination Sys-
tem (NPDES) permitting program in Florida under ss.
318, 402, and 405 of the Federal Clean Water Act, Pub.
L. No. 92-500, as amended. This authority shall be
implemented consistent with the provisions of part II.
which shall be applicable to facilities certified thereun-
der. The department shall establish all rules, standards,
and requirements that regulate the discharge of pollu-
tants into waters of the United States as defined by and
in a manner consistent with federal regulations; pro-
vided, however, that the department may adopt a stan-
dard that is stricter or more stringent than one set by the
U.S. Environmental Protection Agency if approved by
8
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
the Governor and Cabinet in accordance with the proce-
dures of s. 403.804(2).
(32) Coordinate the state's stormwater program.
(33) Adopt by rule a state water policy, wnich shall
provide goals, objectives, and guidance for the develop-
ment and review of programs, rules, and plans relating
to water resources. This state water policy shall be
consistent with the state comprehensive plan and may
include such department rules as are specifically identi-
fied in the policy.
(34) Establish and administer programs providing
appropriate incentives that have the following goals, in
order of importance:
(a) Preventing and reducing pollution at its source.
(b) Recycling contaminants that have the potential
to pollute.
(c) Treating and neutralizing contaminants that are
difficult to recycle.
(d) Disposing of contaminants only after other
options have been used to the greatest extent practica-
ble.
The department shall implement such programs in con-
junction with its other powers and duties and shall place
special emphasis on reducing and eliminating contami-
nation that presents a threat to humans, animals or
plants, or to the environment.
History.—a. 7. en. 67-436: sv 19. 26. 35. ch. 69-106: ». I. ch. 71-35; j. 2. eft.
71-36: i. 3. eft. 72-39: s. 1. eft. 72-53. s. 113. eh. 73-333. s. 3,ch. 74-133: ». l. eft.
77-21; a. 137, ev 77-104: s. 268. en. 77-147; s. 2. ch. 77-369; ». 14. eft. 78-95: s.
2. ch. 78-137: j. 73. eft. 79-65: •. i.eh. 79-130: s. 96. ch. 79-164;». 160.cn. 79-400:
J. 1. en. 80-66: >s. 2. 5. eft. 81-228: a. 5. cn. 02-27; a. 1. en. 82-79: j. 2. ch. 82-80:
a. 66. cn. 83-310; s. 5. cn. 84-79; s. 1, ch. 84-338; s. 1. eft. 85-296; s. 5. ch. 65-345
i. 5. ch. 86-173: ». 52. cn. 86-186: s. 22. ch. 86-393; t. 31, eh. 89-279; >. S4. cn.
90-331: a. 24. cn. 91-305.
Wot*.—TfBntl*rred to another location.
403.0615 Water resources restoration and preser-
vation.—
(1) This section may be cited as the "Water
Resources Restoration and Preservation Act."
(2) The Department of Environmental Regulation
shall establish a program to assist in the restoration and
preservation of bodies of water and to enhance existing
public access when deemed necessary for the enhance-
ment of the restoration effort. This program shall be
funded from the General Revenue Fund, from funds
available from the Pollution Recovery Fund, and from
available federal moneys.
(3) The department shall adopt, by rule, criteria for
the allocation of restoration and preservation funds.
Such criteria shall include, but not be limited to. the fol-
lowing:
(a) The degree of water quality degradation;
(b) The degree to which sources of pollution which
have contributed to the need for restoration or preserva-
tion have been abated;
(c) The public uses which can be made of the sub-
ject waters;
(d) The ecological value of the subject waters in rela-
tion to other waters proposed for restoration and preser-
vation;
(e) The implementation by local government of regu-
latory or management programs to prevent further and
subsequent degradation of the subject waters; and
(f) The commitment of local government resources
to assist in the proposed restoration and preservation.
(4) There is hereby created :ne Water Resources
Restoration and Preservation Trust Fund (or the deposit
anc disbursement of funas evaiiaD.'e from the Pollution
Recovery Fund ana from !eaeral moneys in accordance
with tne provisions of this act.
(5) The provisions of this act are for the benefit of the
public and shall be liberally construed to accomplish the
purposes set forth in this act.
Hl»tory.—sa, l, 4. 5. cn. 77-369; 3. 2. cn. 79-130.
403.062 Pollution control; underground, surface,
and coastal waters.—The department and its agents
shall have general control and supervision over under-
ground water, lakes, rivers, streams, canals, ditches,
and coastal waters under the jurisdiction of the state
insofar as their pollution may affect the public health or
impair the interest of the public or persons lawfully using
them.
Hlttory.—s. 2. cn. 29834, 1955: ss.-26. 35. cn. 69-106
Not*.—Former s. 381.43: i. 381.251.
403.0625 Environmental laboratory certification;
water quality tests conducted by a certified laboratory.
(1) To assure the acceptable quality, reliability, and
validity of testing results, the department and the
Department of Health and Rehabilitative Services shall
jointly establish criteria for certification of laboratories
that perform analyses of environmental water quality
samples which are not covered by the provisions in s.
403.863 and that wish to be certified. The Department
of Health and Rehabilitative Services shall have the
responsibility for the operation and implementation of
such laboratory certification. The Department of Health
and Rehabilitative Services may charge and collect fees
for the certification of such laboratories. The fee sched-
ule shall be based on the number of analytical functions
for which certification is sought. Such fees shall be suffi-
cient to meet the costs incurred by the Department of
Health and Rehabilitative Services in administering this
program in coordination with the Department of Environ-
mental Regulation. All fees collected pursuant to this
section shall be deposited in a trust fund to be adminis-
tered by the Department of Health and Rehabilitative
Services and shall be used only for the purposes of this
section.
(2) An environmental water quality test to determine
the quality of the effluent of a domestic wastewater facil-
ity must be conducted by a laboratory certified under
this section if such test results are to be submitted to
the Department of Environmental Regulation or a local
pollution control program pursuant to s. 403.182.
Hlitory.—3. 7. cn, 85-269: s. 3. cn. 88-09.
403.063 Ground water quality monitoring.—
(1) The department, in cooperation with other state
and federal agencies, water management districts, and
local governments, shall establish a ground water qual-
ity monitoring network designed to detect or predict
contamination of the ground water resources of the
state.
(2) The department may by rule determine the prior-
ity of sites to be monitored within such ground water
quality monitoring network, based upon the following
criteria:
9
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(a) The degree of danger to the public health
caused or potentially caused by contamination.
(b) The susceptibility of each site to contamination.
(3) This information shall be maae available to state
and federal agencies and local governments to facilitate
their regulatory and land use planning decisions.
(4) To the greatest extent practicable, the actual
sampling and testing of ground water pursuant to the
provisions of this section may be conducted by local and
regional agencies.
History-""*- 3. ch. ©-310.
403.064 Reuse of reclaimed water.—
(1) The encouragement and promotion of water con-
servation, and reuse of reclaimed water, as defined by
the department, are state objectives. The Legislature
finds that for those wastewater treatment plants permit-
ted and operated under an approved reuse program by
the department, the reclaimed water shall be considered
environmentally acceptable and not a threat to public
health and safety.
(2) After January 1, 1992, all applicants for permits
to construct or operate a domestic wastewater treat-
ment facility in a critical water supply area shall evaluate
the costs and benefits of reuse of reclaimed water as
part of their application for the permit. The evaluation
shall be performed by the applicant, and the applicant's
evaluation shall be final.
(3) The requirements of this section for such evalua-
tion shall apply to domestic wastewater treatment facili-
ties located within, serving a population located within,
or discharging within critical water supply problem
areas.
(4) Local governments may and are encouraged to
implement programs for the reuse of reclaimed water.
Nothing in this chapter shall be construed to prohibit or
preempt such local reuse programs.
(5) A local government that implements a reuse pro-
gram under this section shall be allowed to allocate the
costs in a reasonable manner.
(6) Pursuant to 'chapter 367, the Florida Public Ser-
vice Commission shall allow entities which implement
reuse projects to recover the full cost of such facilities
through their rate structure.
(7) In issuing consumptive use permits, the permit-
ting agency shall take into consideration the local reuse
program.
(8) A local government shall require a developer, as
a condition for obtaining a development order, to comply
with the local reuse program.
History.—». 7. eft. 89-324
iNotr—Substituted t7i the editors for a reference to ch. 366 beceiree reference
to ch. 366. which ornt with public ut&t«t. appeared to oe etonocua, T** conte*tu-
ftify consoioni reference a ch. 367. which ooeJs with water and sewer systems.
403.072 Pollution Prevention Act.—Sections
403.072-403.074 may be cited as the 'Pollution Preven-
tion Act."
t. 25. ch. 91-305.
403.073 Pollution prevention; state goal; agency
programs; public education.—
(1)' It is a goal of the state that all its agencies, the
State University System, the State Board of Community
Colleges, and all municipalities, counties, regional agen-
cies. and special districts develop and implement strate-
gies to Drevent pollution, including public information
programs and education programs.
(2) It is the policy cf the state that pollution preven-
tion is necessary for all materials and waste manage-
ment activities. However, until the Pollution Prevention
Council, created by's. 28. ch. 31-305, issues its report
and recommendations, the department shall concen-
trate upon preventing pollution caused by toxrc and haz-
ardous wastes.
Hiwwr—«. 26. ctv 91-305
'Not*.—Substituted by (he editors (or 0 reference 10 9. 26. ch. 91-305.
403.074 Technical assistance by the department.
(1) To help develop effective programs to eliminate
or reduce the use of materials that are toxic to humans,
plants, or animals and to prevent pollution at its source,
the department shall implement and aaminister a pro-
gram of technical assistance in pollution prevention to
business, industry, agriculture, and state and local gov-
ernment.
(2) The program shall include on-site, nonregulatory
technical assistance and shall promote and sponsor
conferences on pollution prevention techniques. The
program may be conducted in cooperation with trade
associations, trade schools, the State University Sys-
tem, the State Board of Community Colleges, or other
appropriate entities.
(3) Proprietary information obtained by the depart-
ment during a visit to provide on-site tecnnical assist-
ance requested under ss. 403.072-403.074 is confiden-
tial pursuant to s. 403.111, unless the confidentiality is
waived by the party who requested the assistance.
Hlttsry.—« 27. eft. 91-305
403.081 Performance by other stale agencies.—All
state agencies, including the Department of Health and
Rehabilitative Services, shall be available to the Depart-
ment of Environmental Regulation to perform, at its
direction, the duties required of the Department of Envi-
ronmental Regulation under this act.
Hfetwy.—«. 9. eft. 67-436: M. 19. 26. 35. eft. 69-106: «. 269. eft. 77-147.
403.085 Sanitary sewage disposal units; advanced
and secondary waste treatment; industrial waste,
ocean outfall, inland outfall, or disposal well waste
treatment.—
(1) Neither the Department of Health and Rehabilita-
tive Services nor any other state agency, county, special
district, or municipality shall approve construction of any
ocean outfall or disposal well for sanitary sewage dis-
posal which does not provide for secondary waste treat-
ment and, in addition thereto, advanced waste treat-
ment as deemed necessary and ordered by the Depart-
ment of Environmental Regulation.
(2) Sanitary sewage disposal treatment plants which
discharge effluent through ocean outfalls or disposal
wells on July 1, 1970, shall provide for secondary waste
treatment and, in addition thereto, advanced waste
treatment as deemed necessary and ordered by the
Department of '[Environmental Regulation] by January
3,1974. Failure to conform by said date shall be punish-
able by a fine of $500 for each 24-hour day or fraction
thereof that such failure is allowed to continue thereaf-
ter.
10
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(3) Neither the Department of Health and Rehabilita-
tive Services nor any other state agency, county, special
cistrict. or municipality shall approve construction of any
ocean outfall, inland outfall, or disposal well for the dis-
charge of industrial waste of any kind which does not
provide for secondary waste treatment or such other
treatment as is deemed necessary and ordered by the
Department of Environmental Regulation.
(4) Industrial plants or facilities which discharge
industrial waste of any kind through ocean outfalls,
inland outfalls, or disposal wells on July 1, 1971, shall
provide for secondary waste treatment or such other
waste treatment as deemed necessary and ordered by
January 1, 1973, by the Department of '[Environmental
Regulation]. Failure to conform by said date shall be
punishable as provided in s. 403.161(2).
History.—as 1.2. cn. 70-62: s. 2. cn. 71-137: s. 1. cn. 71-274 s. 270.cn. 77-147-
>. 74, cn. 7£-65.
'Not#.—&ecketeo <*ordi suOstitutec by tr*s eonors tor worcs 'Pollution Control*
See 9. 6. cm. 7^-22. wncn transferred tne Department of Pollution Control to trte
Department of Environmental Regulation.
403.086 Sewage disposal facilities; advanced and
secondary waste treatment.—
(1 )(a) Neither the Department of Health and Rehabil-
itative Sen/ices nor any other state agency, county, spe-
cial district, or municipality shall approve construction of
any facilities for sanitary sewage disposal which do not
provide for secondary waste treatment and, in addition
the:3to, advanced waste treatment as deemed neces-
sary and ordered by the Department of Environmental
Regulation.
(b) No facilities for sanitary sewage disposal con-
structed after June 14,1978, shall dispose of any wastes
by deep well injection without providing for secondary
waste treatment and, in addition thereto, advanced
waste treatment deemed necessary by the Department
of Environmental Regulation to protect adequately the
beneficial use of the receiving waters.
(c) Notwithstanding any other provisions of this
chapter or chapter 373, facilities for sanitary sewage dis-
posal may not dispose of any wastes into Old Tampa
Bay, Tampa Bay, Hillsborough Bay, Boca Ciega Bay, St.
Joseph Sound, Clearwater Bay, Sarasota Bay, Little Sar-
asota Bay, Roberts Bay, Lemon Bay, or Charlotte Harbor
Bay, or into any river, stream, channel, canal, bay,
bayou, sound, or other water tributary thereto, without
providing advanced waste treatment, as defined in sub-
section (4), approved by the Department of Environmen-
tal Regulation. This paragraph shall not apply to facilities
which were permitted by February 1, 1987, and which
discharge secondary treated effluent, followed by water
hyacinth treatment, to tributaries of tributaries of the
named waters; or to facilities permitted to discharge to
the nontidally influenced portions of the Peace River.
(2) Any facilities for sanitary sewage disposal exist-
ing on July 1, 1971, shall provide for secondary waste
treatment by January 1, 1973, and, in addition thereto,
advanced waste treatment as deemed necessary and
ordered by the former Department of Pollution Control
or its successor, the Department of Environmental Reg-
ulation. Failure to conform by said date shall be punish-
able by a civil penalty of $500 for each 24-hour day or
fraction thereof that such failure is allowed to continue
thereafter.
(3) This section shall not be construed to prohibit or
regulate septic tanks or other means of individual waste
disposal which are otherwise suoject to state regulation.
(4) For purposes of this section, the term "advanced
waste treatment" means that treatment which will pro-
vide a recovered water product that:
(a) Contains not more, on a permitted annual aver-
age basis, than the following concentrations:
1. Biochemical Oxygen Demand (CBOD5) ,...5mg/l
2. Suspended Solids 5mg/l
3. Total Nitrogen, expressed as N 3mg/l
4. Total Phosphorus, expressed as P 1mg/l
(b) Has received high level disinfection, as defined
by rule of the Department of Environmental Regulation.
In those waters where the concentrations of phosphorus
have been shown not to be a limiting nutrient or a con-
taminant. the department may waive or alter the compli-
ance levels for phosphorus until there is a demonstration
that phosphorus is a limiting nutrient or a contaminant.
(5)(a) Notwithstanding any other provisions of this
chapter or chapter 373, when a recovered water product
has been established to be in compliance with the
standards set forth in subsection (4), that water shall be
presumed to be allowable, and its discharge shall be
permitted in the waters described in paragraph (c) of
subsection (1) at a reasonably accessible point where
such discharge results in minimal negative impact. This
presumption may be overcome only by a demonstration
that one or more of the following would occur:
1. That the discharge of recovered water that meets
the standards set forth in subsection (4) will be, by itself,
a cause of considerable degradation to an Outstanding
Florida Water or to other waters and is not clearly in the
public interest.
2. That the recovered water discharge will have a
substantial negative impact on an approved shellfish
harvesting area or a water used as a public domestic
water supply.
3. That the increased volume of fresh water contrib-
uted by the recovered water product will seriously alter
the natural fresh-salt water balance of the receiving
water after reasonable opportunity for mixing.
(b) If one or more of the conditions described in sub-
paragraphs 1.-3. of paragraph (a) has been demon-
strated, remedies may include, but are not limited to, the
following:
1. Require more stringent effluent limitations;
2. Order the point or method of discharge changed;
3. Limit the duration or volume of the discharge: or
4. Prohibit the discharge only if no other alternative
is in the public interest.
(6) As of July 10, 1987, any facility covered in para-
graph (c) of subsection (1) shall be permitted to dis-
charge if it meets the standards set forth in subsections
(4) and (5). Facilities that do not meet the standards in
subsections (4) and (5) as of July 10, 1987, may be per-
mitted to discharge under existing law until October 1,
1990. On and after October 1, 1990, all of the facilities
covered in paragraph (c) of subsection (1) shall be
required to meet the standards set forth in subsections
(4) and (5).
History.—tt. I. 2. 3. ch. 71-259; •. 2. cn. 71-137; ». 1. en. 72-58: ». 271. cjv
77-147; 1.1. cn. 78-206: ». 75. cn. 79-65; t. l.cn. 80-371; >. l. cn. 81-246: i. 262.
cn. 81-259: >. 2. ch. 86-173: «. I. cn. 87-303.
11
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
403.08S1 Scallop processing; discharge stand-
ards.—
(1) In furtnerance o f puclic policy established in s.
403.021. the department shall, not later inan July 1,
1S87. adopt rules establishing technology-based efflu-
ent limitations for waste resulting from the processinc of
scallops (Family: Pectinidae) which is ciscnarged into
waters of the state. The rules shall contain technology-
based effluent limitations for biochemical oxygen
demand and total suspended solids and for any other
contaminant that the department deems appropriate.
This section does not prohibit the department from
establishing stricter effluent limitations based on the
quality of receiving waters.
(2) Upon becoming effective, the rules required by
this section shall be applicable to all permits or permit
renewals allowing waste resulting from the processing
of scallops to be discharged into waters of the state.
Such rules shall be administered and enforced by the
department in accordance with this chapter.
Mlitofy.—«. 1. cn S5-231: «. 9. ch. 86-106
403.0862 Discharge of waste from state groundwa-
ter cleanup operations to publicly owned treatment
works.—
(1) Upon agreement between a local governmental
agency and the department, treated waste resulting
from the department's cleanup or restoration of contami-
nated groundwater may be discharged to a publicly
owned treatment works under the jurisdiction of the
local governmental agency.
(2) Upon a demonstration by the local government
that it incurred damages and costs, including attorney's
fees, as a result of the discharge from the department's
cleanup operations, the department shall pay for all
actual damages and costs, including, but not limited to,
the cost of bringing the facility into compliance with any
state or federal requirements.
(3) Should the discharge from the department's
cleanup operations exceed agreed upon pretreatment
limits, the department shall pay the local government an
agreed upon sum for each occasion that the discharge
exceeds pretreatment limits without proof of damages
as required by subsection (2).
(4) The limitation on damages provided by s.
768.28(5) shall not apply to any obligation or payment
which may become due under this section.
History.—10. cn. 86-186.
403.087 Permits; general issuance; denial; revoca-
tion; prohibition; penalty.—
(1) No stationary installation which will reasonably
be expected to be a source of air or water pollution shall
be operated, maintained, constructed, expanded, or
modified without an appropriate and currently valid per-
mit issued by the department, unless exempted by
department rule. In no event shall a permit for a water
pollution source be valid for more than 5 years. However,
upon expiration, a new permit may be issued by the
department in accordance with this act and the rules
and regulations of the department. The renewal of a per-
mit issued under s. 403.088 for the operation of a sani-
tary sewage system may be issued for periods of up to
10 years, provided.
(a) The system is net currently operating under a
temporary operating permit and coes not have any
enforcement action pending against it by the Environ-
mental Protection Agency or the department:
(b) The department has reviewed the operation
reports required under department rule, which reports
inciuae the levels of oxygen, suspenaea solids ana per-
centage of removal, and phosphorus and acidity/
alkalinity present in the discharge, and the department
is satisfied that the report is accurate:
(c) The department has conducted, within the 12
months prior to issuance of the 10-year permit, an
inspection of the system and verified, in writing to the
operator of the system, that '.he system is not exceeding
capacity anc is in proper working order: and
(d) The system has me: all water quality standarcs
within tne last 2 years prior to the issuance of the 10-
year permit, except for violations not attributable to the
sanitary sewage system or its operator.
The operator of a system operating under a 10-year per-
mit shall report to the department, in writing, within 48
hours, of the existence of any malfunctioning equipment
or other conditions which would, if allowed to continue,
cause water quality standards to be violated or would
violate any other department rule or stand' -d. The
report should state any corrective measures that have
been taken or a plan for correcting the malfunctioning
equipment or other conditions so that the department
can determine whether the corrective measures or plan
are appropriate.
(2) The department shall adopt, amend, or repeal
rules, regulations, and standards for the issuance,
denial, and revocation of permits.
(3) The department shall issue permits on such con-
ditions as are necessary to effect the intent and pur-
poses of this section.
(4) The department shall issue permits to construct,
operate, maintain, expand, or modify an installation
which may reasonably be expected to be a source of
pollution only when it determines that the installation is
provided or equipped with pollution control facilities that
will abate or prevent pollution to the degree that will
comply with the standards or rules promulgated by the
department, except as provided in s. 403.088, and
which will comply with the prohibitions in '40 C.F.R. s.
124.41.
(5)(a) The department shall require a processing fee
in an amount sufficient, to the greatest extent possible,
to cover the costs of reviewing and acting upon any
application for a permit or request for site-specific alter-
native criteria or for an exemption from water quality
criteria and to cover the costs of surveillance and other
field services and related support activities associated
with any permit issued pursuant to this chapter. How-
ever, when an application is received without the
required fee, the department shall acknowledge receipt
of the application and shall immediately return the
unprocessed application to the applicant and shall take
no further action until the application is received with the
appropriate fee. The department shall adopt a schedule
of fees by rule, subject to the following limitations.
1. The permit fee for any of the following permits
may not exceed $32,500:
12
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
a. Hazardous waste, construction permit.
b. Hazardous waste, operation permit.
c. Hazardous waste, closure permit.
2. The permit fee for a Class I injection well con-
struction permit may not exceed S12,500.
3. The permit fee for any of the following permits
may not exceed Si0,000:
a. Solid waste, construction permit.
b. Solid waste, operation permit.
c. Class I injection well, operation permit.
4. The permit fee for any of the following permits
may not exceed $7,500:
a. Air pollution, construction permit.
b. Solid waste, closure permit.
c. Drinking water, construction or operation permit.
d. Domestic waste residuals, construction or opera-
tion permit.
e. Industrial waste, operation permit.
f. Industrial waste, construction permit.
5. The permit fee for any of the following permits
may not exceed $5,000:
a. Domestic waste, operation permit.
b. Domestic waste, construction permit.
6. The permit fee for any of the following permits
may not exceed $4,000:
a. Wetlands resource management—(dredge and
fill), standard form permit.
b. Hazardous waste, research and development
permit.
c. Air pollution, operation permit.
d. Class III injection well, construction, operation, or
abandonment permits.
7. The permit fee for Class V injection wells, con-
struction, operation, and abandonment permits may not
exceed $750.
8. The permit fee for any of the following permits
may not exceed $500:
a. Domestic waste, collection system permits.
b. Wetlands resource management—(dredge and
fill and mangrove alterations), short permit form.
c. Drinking water, distribution system permit.
9. The permit fee for stormwater operation permits
may not exceed $100.
10. The general permit fees for permits that require
certification by a registered professional engineer or pro-
fessional geologist may not exceed $500. The general
permit fee for other permit types may not exceed $100.
11. For applicants for a temporary operation permit,
the department shall add a surcharge of 20 percent over
the fees for the operation permit for the activity to be
permitted.
12. The fee for a permit issued pursuant to s. 403.816
is $5,000, and the fee for any modification of such permit
requested by the applicant is $1,000.
(b) Where new or existing multiple air pollution
sources located at the same facility are substantially
similar in nature, the applicant may submit a single appli-
cation and permit fee for construction or operation of the
sources at that facility. The department may develop by
rule criteria for determining what constitutes substan-
tially similar sources.
(c) The fee schedule shall be adopted by rule. The
amount of each fee shall be reasonably related to the
costs of permitting, field services, and related suoport
activities for the particular permitting activity taking into
consideration consistently applied standard cost-
accounting principles and economies of scale. If the
cepartmeni requires by rule or by permit condition that
a permit be renewed more frequently than once every
5 years, the permit fee shall be prorated based upon the
permit fee schedule in effect at the time of permit
renewal.
(d) Nothing in this subsection authorizes the con-
struction or expansion of any stationary installation
except to the extent specifically authorized by depart-
ment permit or rule.
(e) For all domestic waste collection system permits
and drinking water distribution system permits, the
department shall adopt a fee schedule, by rule, based
on a sliding scale relating to pipe diameter, length of the
proposed main, or equivalent dwelling units, or any com-
bination of these factors. The department shall require
a separate permit application and fee for each noncon-
tiguous project within the system.
(6) A permit issued pursuant to this section shall not
become a vested right in the permittee. The department
may revoke any permit issued by it if it finds that the per-
mitholder:
(a) Has submitted false or inaccurate information in
his application;
(b) Has violated law, department orders, rules, or
regulations, or permit conditions;
(c) Has failed to submit operational reports or other
information required by department rule or regulation; or
(d) Has refused lawful inspection under s. 403.091.
(7) The department shall not issue a permit to any
person for the purpose of engaging in, or attempting to
engage in, any activity relating to the extraction of solid
minerals not exempt pursuant to chapter 211 within any
state or national park or state or national forest when the
activity will degrade the ambient quality of the waters of
the state or the ambient air within those areas. In the
event the Federal Government prohibits the mining or
leasing of solid minerals on federal park or forest lands,
then, and to the extent of such prohibition, this act shall
not apply to those federal lands.
(8) A violation of this section is punishable as pro-
vided in this chapter.
Hlttory.—s. I. en. 71-203: ». 4. cfi. 7*-l33: •. 14. cn. 78-95: 9. 14. ch. 82-27; i
1. ch. 82-54; ». t.cn. 82-122: i. 59. en. 83-218: r 24.cn. 84-338: •. 11. cn. 86-186:
». 2. cn. 87-125: t. 17. cn. 88-393: >. 23. cn. 91-305.
'Note.—The citoO provison it • Definitions section containing no oovious refer-
enoe to proh»D»t©ns.
403.0871 Florida Permit Fee Trust Fund.—There is
established within the Department of Environmental
Regulation a nonlapsing trust fund to be known as the
"Florida Permit Fee Trust Fund." All funds received from
applicants for permits pursuant to ss. 403.087(5) and
403.861(8) shall be deposited in the Florida Permit Fee
Trust Fund and shall be used by the department with
the advice and consent of the Legislature to supplement
appropriations and other funds received by the depart-
ment for the administration of its responsibilities under
this chapter. In no case shall funds from the Florida Per-
mit Fee Trust Fund be used for salary increases without
the approval of the Legislature.
History.—t. 2. eh. 82-122: J. i2. cn. 86-186: s. 30. cn. 91-305.
13
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c,fc.. 4o:
F.S. 1991
402.0675 Citation c; ;c:3.—>n ; ' ... cv c'.'tc'
unaer. :he serrr.::::r,z c.cc-::r.- .-. nv.
information or a uc-m;. rz-.
or such rules promula?.:ed . u;-:.- c. voccii.c
ruie. I' a request Sot ^nforrr.snori cir.ro: 04
by a rule citation, failure ic orov;c..'xr> can-
not be crcunas to oeny c permi:
Mlttwy.— 5. 7. co:t-.erJ by
law or departmental rule, the spp!ic£!'i! m£» reforest 2
hearing pursuant to s. 120.57. Within 30 o&yc after
receipt of such additional information. th^ c,:frP-:?.rirr*i?'<: ??-•«.
:o waive the 90-dav time limitation for deoart-
¦;.on; issuance or aer.iai ol the permit once for a period
r-c: to exceed 90 cays. The ceoartment may require a
soecial fee to cover tne direct cos; of processing special
applications m addition to normal permit fees and costs.
Ine- special tee may not exceed $10,000 per permit
ic'juirec. Applications 'or renewal permits, but not appli-
cations for initial permits, required for facilities pursuant
tc the Electrical Power Plant Siting Act or the Transmis-
sion Line Siting Act may be processed under this sub-
section. Personnel staffing the special unit shall have
lengthy experience in permit processing.
(6) At the applicant's discretion and notwithstand-
ing any other provisions o? cnapter 120, a permit pro-
cessed under this subsection is subject to an expedited
*<_'.-r>.ni5tra;ive hearing pursuant to s. 120.57. To request
sucn hearing, the applicant must notify the Division of
Administrative Hearings, the department, and all other
parties in writing within 15 days after his receipt of notice
c-f assignment of a hearing officer from the divisicn. The
division shali conduct a hearing within 45 days after
receipt of the reouest for such expedited hearing.
Kutory.—s 2. c«. 80-66: s 2S. eft. &»-338: » 13. cn. B6-1B6: J. 1«. cn. B&-393.
403.0377 Certification by professionals regulated
by the Department of Professional Regulation.—
(1) Nothing in this section shall be construed as spe-
cific authority for a water management district or the
department to require certification by a professional
engineer licensed under chapter 471, a professional
landscape architect licensed under part II of chapter
431, a professional geologist licensed under chapter
492. or a professional land surveyor licensed under
chapter 472, for an activity that is not within the defini-
tion or scope of practice of the regulated profession.
(2) If an application for a permit or license to conduct
an activity regulated under this chapter, chapter 373,
chapter 376. or any permitting program delegated to a
water management district by a state agency, or to
undertake corrective action of such activity or program
ordered by the department or a water management dis-
trict. requires the services of a professional as enumer-
ated in subsection (1), the department or governing
board of a water management district may require, by
rule, in conjunction with such an application or any sub-
mittals required as a condition of granting a permit or
license, or in conjunction with the order of corrective
scuon, such certification by the professional as is neces-
sary to ensure that the proposed activity or corrective
action is designed, constructed, operated, and main-
tained in accordance with applicable law and rules of
the cepartment or district and in conformity with proper
and sound design principles, or other such certification
cy the professional as may be necessary to ensure com-
pliance with applicaDle law or rules of the department
or district. The department or governing board of a
water management district may further require as a con-
dition of granting a permit or license, or in conjunction
¦with ordering corrective action that the professional cer-
tify upon completion of the permitted or licensed activity
or corrective action that such activity or corrective action
has. to the best of his knowledge, been completed in
suostantial conformance with the plans and specifica-
tions approved by the department or board.
1 «~
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(3) The cost of such certifications by the profes-
sional shall be borne by the permittee or the person
ordered to correct the permitted activity.
(4) A permitted or licensed activity or corrective
action that is required to be so certified upon completion
of the activity or action may not be placed into use or
operation until the professional's certificate is filed with
the department or board.
MUtory.—«. 9. cfv 89-324; • 31. eh. 91-305.
403.088 Water pollution operation permits; tempo-
rary permits; conditions.—
(1) No person, without written authorization of the
department, shall discharge into waters within the state
any waste which, by itself or in combination with the
wastes of other sources, reduces the quality of the
receiving waters below the classification es'.ablished for
them. However, this section shall not be deemed to pro-
hibit the application of pesticides to waters in the state
for the control of insects, aquatic weeds, or algae, pro-
vided the application is performed pursuant to a pro-
gram approved by the Department of Health and Reha-
bilitative Services, in the case of insect control, or the
Department of Natural Resources, in the case of aquatic
weed or algae control. The Department of Environmental
Regulation is directed to enter into interagency agree-
ments to establish the procedures for program approval.
Sucn agreements shall provide for public health, wel-
fare, and safety, as well as environmental factors.
Approved programs must provide that only chemicals
approved for the particular use by the Federal Environ-
mental Protection Agency or by the Department of Agri-
culture and Consumer Services may be employed and
that they be applied in accordance with registered label
instructions, state standards for such application, and
the provisions of the Florida Pesticide Law, chapter 487.
(2)(a) Any person intending to discharge wastes into
the waters of the state shall make application to the
department for an operation permit. Application shall be
made on a form prescribed by the department and shall
contain such information as the department requires.
(b) If the department finds that the proposed dis-
charge will reduce the quality of the receiving waters
below the classification established for them, it shall
deny the application and refuse to issue a permit. If the
department finds that the proposed discharge will not
reduce the quality of the receiving waters below the
classification established for them, it may issue an oper-
ation permit if it finds that such degradation is necessary
or desirable under federal standards and under circum-
stances which are clearly in the public interest.
(c) A permit shall:
1. Specify the manner, nature, volume, and fre-
quency of the discharge permitted;
2. Require proper operation and maintenance of
any pollution abatement facility by qualified personnel in
accordance with standards established by the depart-
ment;
3. Contain such additional conditions, require-
ments, and restrictions as the department deems nec-
essary to preserve and protect the quality of the receiv-
ing waters; and
4. Be valid for the period of time specified therein.
(d) An operation permit may be renewed upon appli-
cation to the department. No renewal permit shall be
issued if the department finds that the proposed dis-
charge will reduce the quality of the receiving waters
below the classification established for them.
(3)(a) A person who does not qualify for an operation
permit or has been denied an operation permit under
paragraph (b) of subsection (2) may apply to the depart-
ment for a temporary operation permit. Application shall
be made on a form prescribed by the department and
shall contain such information as the department may
require. The department may require such person to
submit any additional information reasonably necessary
for proper evaluation.
(b) The department shall give notice to people resi-
dent in the drainage area of the receiving waters for the
proposed discharge concerning the period during which
they may present objections to the proposed discharge.
(c) After consideration of the application, any addi-
tional information furnished, and all written objections
submitted, the department shall grant or deny a tempo-
rary operation permit. No temporary permit shall be
granted by the department unless it affirmatively finds:
1. The proposed discharge does not qualify for an
operation permit;
2. The applicant is constructing, installing, or plac-
ing into operation, or has submitted plans and reason-
able schedules for constructing, installing or placing into
operation, an approved pollution abatement facility or
alternate waste disposal system, or that the applicant
has a waste for which no feasible and acceptable
method of treatment or disposal is known or recognized
but is making a bona fide effort through research and
other means to discover and implement such a method:
3. The applicant needs permission to pollute the
waters within the state for a period of time necessary to
complete research, planning, construction, installation,
or operation of an approved and acceptable pollution
abatement facility or alternate waste disposal system;
4. There is no present, reasonable, alternative
means of disposing of the waste other than by discharg-
ing it into the waters of the state:
5. The dental of a temporary operation permit would
work an extreme hardship upon the applicant:
6. The granting of a temporary operation permit will
be in the public interest: or
7. The discharge will not be unreasonably destruc-
tive to the quality of the receiving waters.
(d) A temporary operation permit issued shall:
1. Specify the manner, nature, volume, and fre-
quency of the discharge permitted;
2. Require the proper operation and maintenance of
any interim or temporary pollution abatement facility or
system required by the department as a condition of the
permit;
3. Require the permitholder to maintain such moni-
toring equipment and make and file such records and
reports as the department deems necessary to ensure
compliance with the terms of the permit and to evaluate
the effect of the discharge upon the receiving waters;
4. Be valid only for the period of time necessary for
the permit holder to place into operation the facility, sys-
15
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. .1991
tem. or method contemplated in his application as deter-
mined by the department: and
5. Contain other requirements and restrictions
which the department deems necessary and desirable
to protect the quality of the receiving waters and pro-
mote the public interest.
(4)(a) The provisions of this section shall not be con-
strued to repeal or restrict any other provisions of this
chapter, but shall be cumulative thereto.
(b) This section shall not be construed to exempt
any permittee from the pollution control requirements of
any local air and water pollution control rule, regulation,
orainance, or code, or to authorize or allow any violation
thereof.
(5) Notwithstanding any act to the contrary, if the
discharge from any sewage disposal or treatment plant
is permitted pursuant to this chapter and by a local pol-
lution control program, the discharge shall be deemed
lawful. Further, any person, firm, corporation, or public
body that constructs, reconstructs, extends, or
increases the capacity or volume of any sewage dis-
posal or treatment plant pursuant to permits or authori-
zations under this chapter and through any local pollu-
tion control program shall not be subject to an action by
the state attorney to restrain, enjoin, or otherwise pre-
vent such construction, reconstruction, extension, or
increase.
History.—•>. 2. 3. 5. e*v 71-203: «. t. ch. 73-360: • 5. ch 74-133: a. Z ch.
76-112.1 l.ch. 77-174. •. 14. ch. 78-95: •. 2. ch. 78-98: • 97. ch. 79-164: •. 60.
ch 83-216: •. 14. ch 86-186.
403.0881 Sewage or disposal systems or water
treatment works; construction permits.—The depart-
ment may issue construction permits for sewage sys-
tems, treatment works, or disposal systems based upon
review of a preliminary design report, application forms,
and other required information, all of which shall be for-
mulated by department rule. Detailed construction plans
and specifications shall not be required prior to issuance
of a construction permit unless such plans and specifi-
cations are required to secure federal funding and the
project is expected to receive federal funding. Upon a
demonstration that a constructed system operates as
designed, the department shall issue a permit for opera-
tion of the system.
Hlttory.—t. 3. ch. 87-125.
403.0885 Establishment of federally approved
state National Pollutant Discharge Elimination System
(NPDES) program.—
(1) The Legislature finds and declares that it is in the
public interest to promote effective and efficient regula-
tion of the discharge of pollutants into waters of the
state and eliminate duplication of permitting programs
by the U.S. Environmental Protection Agency under s.
402 of the Clean Water Act, Pub. L. No. 92-500, as
amended, 33 U.S.C. s. 1251 et seq., and the department
under this chapter. It is further found that state imple-
mentation of the federal NPDES program, with sufficient
time for legislative revision prior to the implementation
of the state NPDES permit program by the department,
would promote the orderly establishment of a state
administered NPDES program. It is the specific intent of
the Legislature that permit fees charged by the depart-
ment for processing of federally aoproved NPDES per-
mits be adequate ;o cover the entire cost to the deoart-
ment of program management, for reviewing and acting
upon any permit application, and to cover the cost of
surveillance and other field services of any permits
issued pursuant to this section. Further, it is legislative
intent, upon a finding by the department determining
such additional costs for administering an NPDES pro-
gram, to set permit fees by legislative act during the
1989 regular legislative session.
(2) To this end. the department shall apply no later
than January 1, 1989, to the U.S. Environmental Protec-
tion Agency, pursuant to s. 402 of the Federal Clean
Water Act, Pub. L. No. 92-500, as amended, for approval
to operate an NPDES program. The department shall not
process applications or issue or deny NPDES permits
under this program until after January 1, 1990.
(3) The department is empowered to establish a
state NPDES program in accordance with s. 402 of the
Clean Water Act, as amended. The department shall
have the power and authority to operate the NPDES per-
mitting program in accordance with s. 402(b) of the
Clean Water Act, as amended, and 40 C.F.R. pr-t 123.
The state NPDES permit shall be the sole permit issued
by the state under this chapter regulating the discharge
of pollutants or wastes into surface waters within the
state for discharges covered by the EPA approved state
NPDES program. This legislative grant of authority is
intended to be sufficient to enable the department to
qualify for delegation of the federal NPDES program to
the state and operate such program in accordance with
federal law.
(4) An application for an NPDES permit and other
approvals from the state relating to the permitted activ-
ity shall be granted or denied by the department within
the time allowed for permit review under 40 C.F.R. part
123, subpart C. Other than for stormwater discharge
permitting, the decision on issuance or denial of such
permit may not be delegated to another agency or gov-
ernmental authority. The department is specifically
exempted from the time limitations provided in ss.
120.60 and 403.0876. However, if the department fails
to render a permitting decision within the time allowed
by 40 C.F.R. part 123, subpart C, or a Memorandum of
Agreement executed by the department and the U.S.
Environmental Protection Agency, whichever is shorter,
the applicant may apply for an order from the circuit
court requiring the department to render a decision
within a specified time.
(5) The department shall respond, in writing, to any
written comments on a pending application for a state
NPDES permit which the department receives from the
Executive Director, or his designee, of the Game and
Fresh Water Fish Commission or the Department of Nat-
ural Resources, on matters within the commenting agen-
cy's jurisdiction. The department's response shall not
constitute agency action for purposes of s. 120.57 or
other provisions of chapter 120.
Hlttwy.—«. 23. cm. 88-393.
403.0891 State, regional, and local stormwater
management plans and programs.—The department,
the water management districts, and local governments
16
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
shall have the responsibility for the development of
mutually compatible stormwater management pro-
grams.
(1) The department shall include goals in the state
water policy for the proper management of stormwater.
(2) Each water management district to which the
state's stormwater management program is delegated
shall establish district and, where appropriate, water-
shed or drainage basin stormwater management goals
which are consistent with the goals adopted by the state
and with plans adopted pursuant to ss. 373.451-
373.4595, the Surface Water Improvement and Manage-
ment Act.
(3)(a) Each local government required by chapter
163 to submit a comprehensive plan, whose plan is sub-
mitted alter July 1, 1992, and the others when updated
after July 1, 1992, in the development of it., stormwater
management program described by elements within its
comprehensive plan shall consider state water policy,
district stormwater management goals, plans approved
pursuant to the Surface Water Improvement and Man-
agement Act, ss. 373.451-373.4595, and technical
assistance information provided by the water manage-
ment districts pursuant to s. 373.0391.
(b) Local governments are encouraged to consult
with the water management districts, the Department of
Transportation, and the department before adopting or
updating their local government comprehensive plan or
public facilities report as required by s. 189.415, which-
ever is applicable.
(4) The Department of Transportation shall inventory
and map primary stormwater management systems
constructed, operated, or maintaineo by the Depart-
ment of Transportation in each water management dis-
trict. The inventory shall include available design calcu-
lations, conditions, capacity, photographic and drainage
maps, and other pertinent information and shall be sub-
mitted to the water management district in which the
system is located by July 1, 1993. However, completion
of both the inventory and the mapping effort shall be by
July 1, 1991, for systems which affect designated prior-
ity water bodies under ss. 373.451-373.4595, the Sur-
face Water Improvement and Management Act. The
Department of Transportation shall submit an annual
report of progress on the mapping effort to the Depart-
ment of Environmental Regulation.
(5) The department, in coordination and cooperation
with water management districts and local govern-
ments, shall conduct a continuing review of the costs of
stormwater management systems and the effect on
water quality and quantity, and fish and wildlife values.
The department, the water management districts, and
local governments shall use the review for planning pur-
poses and to establish priorities for watersheds and
stormwater management systems which require better
management and treatment of stormwater with empha-
sis on the costs and benefits of needed improvements
to stormwater management systems to better meet
needs for flood protection and protection of water qual-
ity. and fish and wildlife values.
(6) The results of the review shall be maintained by
the department and the water management districts
and shall be provided to appropriate local governments
or other parties on request. The results also shall be
used in the development of the goals aevelopea pursu-
ant to subsections (1) and (2).
History.—i. 15. eft. S6-186. # 22. eft. 89>-279.
403.0893 Stormwater funding; dedicated funds for
stormwater management.—In addition to any other
funding mechanism legally available to local govern-
ment to construct, operate, or maintain stormwater sys-
tems, a county or municipality may:
(1) Create one or more stormwater utilities and
adopt stormwater utility fees sufficient to plan, con-
struct, operate, and maintain stormwater management
systems set out in the local program required pursuant
to s. 403.0891(3);
(2) Establish and set aside, as a continuing source
of revenue, other funds sufficient to plan, construct,
operate, and maintain stormwater management sys-
tems set out in the local program required pursuant to
s. 403.0891(3); or
(3) Create, alone or in cooperation with counties,
municipalities, and special districts pursuant to the Inter-
local Cooperation Act, s. 163.01, one or more stormwater
management system benefit areas. All properly owners
within said area may be assessed a per acreage fee to
fund the planning, construction, operation, mainte-
nance, and administration of a public stormwater man-
agement system for the benefited area. Any benefit area
containing different land uses which receive substan-
tially different levels of stormwater benefits shall include
stormwater management system benefit subareas
which shall be assessed different per acreage fees from
subarea to subarea based upon a reasonable relation-
ship to benefits received. The fees shall be calculated
to generate sufficient funds to plan, construct, operate,
and maintain stormwater management systems called
for in the local program required pursuant to s.
403.0891(3). For fees assessed pursuant to this section,
counties or municipalities may use the non-ad valorem
levy, collection, and enforcement method as provided
for in chapter 197.
History.—«. 16. ctv 86-166: a. 34. cfi. 69-279.
403.0896 Training and assistance for stormwater
management system personnel.—The Stormwater
Management Assistance Consortium of the State Uni-
versity System, working in cooperation with the commu-
nity colleges in the state, interested accredited private
colleges and universities, the department, the water
management districts, and local governments, shall
develop training and assistance programs for persons
responsible for designing, building, inspecting, or oper-
ating and maintaining stormwater management sys-
tems.
History.—1. 33. ch. 89-279.
403.091 Inspections.—
(1)(a) Any duly authorized representative of the
department may at any reasonable time enter and
inspect, for the purpose of ascertaining the state of com-
pliance with the law or rules and regulations of the
department, any property, premises, or place, except a
building which is used exclusively for a private resi-
dence, on or at which:
17
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
1. A hazardous wasie generator, transporter, or
facility or other air or water contaminant source;
2. A discharger, including any nondomestic dis-
charger which introduces any pollutant into a publicly
owned treatment works;
3. Any facility, as defined in s. 376.301; or
4. A resource recovery and management facility
is located or is being constructed or installed or where
records which are required under this chapter, ss.
376.30-376.319, or department rule are kept.
(b) Any duly authorized representative may at rea-
sonable times have access to and copy any records
required unaer this chapter or ss. 376.30-376.319;
inspect any monitoring equipment or method; sample
for any pollutants as defined in s. 376.301, effluents, or
wastes which the owner or operator of such source may
be discharging or which may otherwise be located on or
underlying the owner's or operator's property; and
obtain any other information necessary to determine
compliance with permit conditions or other require-
ments of this chapter, ss. 376.30-376.319, or depart-
ment rules.
(c) No person shall refuse reasonable entry or
access to any authorized representative of the depart-
ment who requests entry for purposes of inspection and
who presents appropriate credentials; nor shall any per-
son obstruct, hamper, or interfere with any such inspec-
tion. The owner or operator of the premises shall receive
a report, if requested, setting forth all facts found which
relate to compliance status.
(2) An inspection pursuant to subsection (1) may be
conducted only after:
(a) Consent for the inspection is received from the
owner, operator, or person in charge; or
(b) The appropriate inspection warrant as provided
in this section is obtained.
(3)(a) An inspection warrant as authorized by this
chapter may be issued by a judge of any county court
or circuit court of this state which has jurisdiction of the
place or thing to be searched.
(b) Upon proper affidavit being made, an inspection
warrant may be issued under the provisions of this chap-
ter or ss. 376.30-376.319:
1. When it appears that the properties to be
inspected may be connected with or contain evidence
of the violation of any of the provisions of this chapter
or ss. 376.30-376.319 or any rule properly promulgated
thereunder; or
2. When the inspection sought is an integral part of
a larger scheme of systematic routine inspections which
are necessary to, and consistent with, the continuing
efforts of the department to ensure compliance with the
provisions of this chapter or ss. 376.30-376.319 and any
rules adopted thereunder.
(c) The judge shall, before issuing the warrant, have
the application for the warrant duly sworn to and sub-
scribed by a representative of the department; and he
may receive further testimony from witnesses, support-
ing affidavits, or depositions in writing to support the
application. The affidavit and further proof, if had or
required, shall set forth the facts tending to establish the
grounds specified in paragraph (b) or the reasons for
believing that such grounds exist.
(d) Upon examination of the application and proofs
suomitied and if satisfied tha: cause exists for the issu-
ing of the inspection warrant, the judge shall thereupon
issue a warrant, signed by him with the name of his
office, to any department representative, which warrant
will authorize the representative forthwith to inspect the
property described in the warrant.
History.—i. 10. en. 67-*38: •>. 26. 35. ch. 69-106: ». t, eft. 00-302: ». 6. ai.
62-27: 1. 26. ch. 84-338: •. 25. ch. 86-159: • 9. ch. 89-188: a. 89. ch. 91-221.
403.092 Package sewage treatment facilities;
inspection.—The Department of Environmental Regula-
tion shall implement a program to conduct regular and
continuing inspection of package sewage treatment
facilities. To the greatest extent possible consistent with
the abilities and the financial resources of local govern-
ments, the inspection program shall be delegated to
local governments.
History.—¦. 4. ch. 83-310.
M03.101 Classification and reporting; regulation of
operators of water purification plants and wastewater
treatment plants.—
(1) The department, by rule, may classify air and
water contaminant sources, which sources in its judg-
ment may cause or contribute to air or water pollution,
according to levels and types of emissions and other
characteristics which relate to air or water pollution, and
may require reporting for any such class or classes.
Classifications made pursuant to this section may be
made for application to the state as a whole or to any
designated area of the state, and shall be made with
special reference to physical effects on property and
effects on health, economic, social, and recreational fac-
tors.
(2) Any person operating, or responsible for the
operation of, air or water contaminant sources of any
class for which the rules of the department require
reporting shall make reports containing information as
may be required concerning location, size, and height of
contaminant outlets, processes employed, fuels used,
and the nature and time period or duration of emissions,
and such other information as is relevant to air and water
pollution and available or reasonably capable of being
assembled.
(3) The department is authorized to establish qualifi-
cations for, and to examine and certify, water and waste-
water treatment plant operators; to issue, deny, revoke,
and suspend operator certificates pursuant to its rules
and chapter 120; to charge a fee not in excess of $50
for processing an application for certification; and to
charge a fee not in excess of $50 for renewal of certifica-
tion. In assessing fees authorized by this subsection, the
department is directed to adjust the fees as needed
within the established limits to ensure that generated
revenues from the certification program will equal or
exceed the cost of operation. Certificate renewal shall
be biennial from the date of the original certification. This
provision on the timing of renewals applies both retroac-
tively and prospectively to all operators, whenever certi-
fied. A fee not to exceed $5 may be charged for the issu-
ance of a duplicate certificate. Such fees shall be nonre-
fundable. Renewals of certification, issued as requested
by the applicant pursuant to this section, shall be
18
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
exempt from ;he provisions of s. 120.60(3). if the depart-
ment provides eacn applicant wilh written notice either
personally or by mail of the certification or renewal.
(4) No person shall perform the duties of operator of
a water or wastewater treatment plant unless he holds
a current operator's certificate issued by the depart-
ment. However, this section shall not apply to public
lodging establishments licensed under chapter 509. No
owner of a water or wastewater plant shall employ any
person to perform the duties of an operator unless such
person possesses a valid certificate at the required level
of certification.
(5) The department may promulgate rules and mini-
mum standards to effectuate the provisions of this sec-
tion and to ensure efficient, hygienic water purification
and wastewater treatment operations in this state.
(6) For purposes of this section;
(a) "Operator" means any person, including the
owner, who is principally engaged in, and is in charge
of, the actual operation, supervision, and maintenance
of a drinking water purification plant or a domestic
wastewater treatment plant and includes the person in
charge of a shift or period of operation during any pari
of the day.
(b) "Public water system" shall have the same mean-
ing provided in s. 403.852(2).
Mlttory.—i n, cn. 67-438: •>. 26. 35. eft. 89-106: i. 18. cn. 77-337: ¦ 161. at.
79—*00: s. 3. cn. 00-66: i. 2. eft. 81 -318: u. 1. 2. 3. en. 82-": i 17. cn. 86-188:
>. 32 cn. 91-305
'hot*.—'Expires October 1. 1992. pursuant to •. 3. cn. 82*44. ana !¦ scheduled
for rrvew purautnt lo b. 11.61 n advance of thai date.
403.111 Confidential records.—
(1) Any information, other than effluent data, relating
to secret processes or secret method:, of manufacture
or production which may be required, ascertained, or
discovered by inspection or investigation shall be
exempt from the provisions of s. 119.07(1), shall not be
disclosed in public hearings, and shall be kept confiden-
tial by any member, officer, or employee of the depart-
ment, upon a showing satisfactory to the department
that the information should be kept confidential. The per-
son from whom the information is obtained must request
that the department keep such information confidential
and must inform the department of the basis for the
claim of confidentiality. The department shall, subject to
notice and opportunity for hearing, determine whether
the information requested to be kept confidential should
or should not be kept confidential. When making a deter-
mination pursuant to this section, 1he department shall
consider the public purpose specified in s.
119.14(4)(b)3. This exemption is subject to the Open
Government Sunset Review Act in accordance with s.
119.14.
(2) Nothing in this section shall be construed to pre-
vent the use of such records in judicial or administrative
proceedings when ordered to be produced by appropri-
ate subpoena or by order of the court or a hearing offi-
cer. No such subpoena or order of the court or hearing
officer shall abridge or alter the rights or remedies of per-
sons affected in the protection of trade secrets or secret
processes, in the manner provided by law, and such per-
sons affected may take any and all steps available by
law to protect such trade secrets or processes.
Hfttory.—t. 12. eft. 67-436: ••. 26. 35. cn. 69-106: •. 6. cn. 74-133: i 1. eft.
90-74.
403.121 Enforcement, procedure; remedies.—The
department shall have the following judicial and adminis-
trative remedies available to it for violations of this chas-
ter, as specified in s. 403.161(1).
(1) Judicial remedies:
(a) The department may institute a civil action in a
court of competent jurisdiction to establish liability and
to recover damages for any injury to the air. waters, or
property, including animal, plant, and aquatic life, of the
state caused by any violation.
(b) The department may institute a civil action in a
court of competent jurisdiction to impose and to recover
a civil penalty for each violation in an amount of not more
than $10,000 per offense. However, the court may
receive evidence in mitigation. Each day during any por-
tion of which such violation occurs constitutes a sepa-
rate offense.
(c) It shall not be a defense to, or ground for dismis-
sal of, these judicial remedies for damages and civil pen-
alties that the department has failed to exhaust its
administrative remedies, has failed to serve a notice of
violation, or has failed to hold an administrative hearing
prior to the institution of a civil action.
(2) Administrative remedies:
(a) The department may institute an administrative
proceeding to establish liability and to recover damages
for any injury to the air, waters, or property, including ani-
mal, plant, or aquatic life, of the state caused by any vio-
lation. The department may order that the violator pay
a specified sum as damages to the state. Judgment for
the amount of damages determined by the department
may be entered in any court having jurisdiction thereof
and may be enforced as any other judgment.
(b) If the department has reason to believe a viola-
tion has occurred, it may institute an administrative pro-
ceeding to order the prevention, abatement, or control
of the conditions creating the violation or other appropri-
ate corrective action.
(c) An administrative proceeding shall be instituted
by the department's serving of a written notice of viola-
tion upon the alleged violator by certified mail. The
notice shall specify the provision of the law, rule, regula-
tion, permit, certification, or order of the department
alleged to be violated and the facts alleged to constitute
a violation thereof. An order for corrective action may be
included with the notice. However, no order shall
become effective until after service and an administra-
tive hearing, if requested within 20 days after service.
Failure to request an administrative hearing within this
time period shall constitute a waiver thereof.
(d) Nothing herein shall be construed as preventing
any other legal or administrative action in accordance
with law.
(3)(a) In addition to any judicial or administrative
remedy authorized by this part, the department may
assess a noncompliance fee for failure of any owner or
operator of a domestic wastewater treatment facility to
comply with a permit condition that requires the submit-
tal of monthly operating reports or the reporting of the
characteristics of the waste stream or the effects of the
facility on surface or ground water. For the first and sec-
ond violations of the reporting requirements, the fee
shall not be assessed until the department has given the
19
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
owner or operator at least 30 days to comply with the
reporting requirement. The time shall not begin until the
department has given the owner or operator written
notice of the facts alleged to constitute the reporting vio-
lation, the specific provision of law, rule, or order alleged
to have been violated by the owner or operator, the cor-
rective action needed to bring the facility into compli-
ance, and the potential penalties that may be imposed
as a result of the owner's or operator's failure to comply
with the notice. For subsequent violations, the depart-
ment does not have to provide 30 days' written notice
of the violations prior to assessing a noncompliance fee,
except as follows:
1. If any additional reporting violations occur prior
to the expiration of either of the 30-day notices issued
by the department, the department must provide the
owner or operator with 30 days' written notice to correct
these violations as well.
2. Upon the renewal of the permit, the department
shall reinstate the 30-day notice requirements provided
in this subsection prior to assessing a noncompliance
fee during the new permit period.
(b) At the time of assessment of a noncompliance
fee, the department shall give the owner or operator writ-
ten notice setting forth the amount assessed, the spe-
cific provision of law, rule, or order alleged to be violated,
the facts alleged to constitute the violation, the correc-
tive action needed to bring the party into compliance,
and the rights available under chapter 120 to challenge
the assessment. The assessment shall be final and
effective unless an administrative proceeding is
requested within 20 days after receipt of the written
notice, and shall be enforceable pursuant to s. 120.69.
Once the assessment has become final and effective,
the department may refuse to issue, modify, transfer, or
renew a permit to the facility until the fee has been paid.
(c) Before assessing a noncompliance fee, the
department shall adopt rules to implement the provi-
sions of this subsection. The rules shall establish spe-
cific procedures and assessment amounts for noncom-
pliance fees authorized by paragraph (a). Noncompli-
ance fees shall be set on a sliding scale based upon the
type of violation, the degree of noncompliance, and the
potential for harm. Such rules shall also authorize the
application of adjustment factors subsequent to the ini-
tial assessment to increase or decrease the total amount
assessed, such as the good faith efforts or the lack of
good faith efforts of the owner or operator to comply with
the reporting requirement, the lack of or degree of willful-
ness or negligence on the part of the owner or operator,
the economic benefits associated with the owner's or
operator's failure to comply, the owner's or operator's
previous history of reporting violations, and the owner's
or operator's ability to pay the noncompliance fee. No
noncompliance fee shall exceed $250, and total non-
compliance fees assessed shall not exceed $1.000 per
assessment for all reporting violations attributable to a
specific facility during any one month. No noncompli-
ance fee may be assessed unless the department has,
within 90 days of the reporting violation, provided the
owner or operator written notice of the violation.
(d) The department's assessment of a noncompli-
ance fee shall be in lieu of any civil action which may be
instituted by the department in a court of competent
jurisdiction to impose and recover civil penalties tor any
violation that resulted in the fee assessment, unless the
department initiates a civil action for nonpayment of a
fee properly assessed pursuant to this subsection.
(e) Fees collected pursuant to this subsection shall
be deposited in the Pollution Recovery Fund. The
department may use a portion of the fund to contract for
services to help in the collection of the fees assessed
pursuant to this subsection.
Hlnory.—• 13. ch. 67-436: it. 28. 35. cn. 69-106: a. i. en. 70-iU; ». I. eft.
70-139: •. 349: en 71-136: • .112. eft. 71-3SS t. l. eft. 72-286: i. 138. eft. 77-104:
• . I. eft. 77-117: i 14. eh. 78-9S: t. 283. eft. 01-2S9: i. 3. eft. 90-82.
403.131 Injunctive relief, cumulative remedies.—
(1) The department may institute a civil action in a
court of competent jurisdiction to seek injunctive relief
to enforce compliance with this chapter or any rule, reg-
ulation, permit certification, or order: to enjoin any viola-
tion specified in s. 403.161(1); and to seek injunctive
relief to prevent irreparable injury to the air, waters, and
property, including animal, plant, and aquatic life, of the
state and to protect human health, safety, and welfare
caused or threatened by any violation.
(2) All the judicial and administrative remedies in this
section and s. 403.121 are independent and c mulative
except that the judicial and administrative 'emedies to
recover damages are alternative and mutually exclusive.
Hlitory.—«. 14. ch. 67-436: »• 26. 35. ch. 69-106: • 1. cn. 70-139: l. 1, en.
70-439: «. 2. en. 72-2B6
403.135 Persons who accept wastewater for spray
irrigation; civil liability.—
(1) Any person who in good faith accepts from any
owner or operator of a permitted wastewater treatment
or disposal plant any wastewater permitted and
intended to be used for disposal through spray irrigation
is not liable for any civil damages as a result of the
acceptance and disposal of such wastewater through
approved spray irrigation practices.
(2) Subsection (1) does not limit or otherwise affect
the liability of:
(a) Any person for damages resulting from such per-
son's negligence, gross negligence, or reckless, wan-
ton, or intentional misconduct;
(b) Any person for the improper management and
use of the wastewater after its delivery to such person
by any permitted wastewater treatment or disposal plant
owner or operator; or
(c) The owner or operator of the plant for damages
caused as a result of the spray irrigation.
(3) Nothing in this section shall prohibit any govern-
mental entity from taking such action within its jurisdic-
tion as may be necessary to protect the public health,
safety, or welfare or the environment.
(4) Terms used in this section have the meaning
specified in this chapter and in the rules of the Depart-
ment of Environmental Regulation under this chapter.
Mlatory.—«. 1. eft. 07-207.
403.141 Civil liability; Joint and several liability.—
(1) Whoever commits a violation specified in s.
403.161(1) is liable to the state for any damage caused
to the air, waters, or properly, including animal, plant, or
aquatic life, of the state and for reasonable costs and
20
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F.S. 199",
ENVIRONMENTAL CONTROL
Ch. 403
expenses cf the state m tracing "Me source c! the dis-
charge. in ccntro|liriS anc aoatin? the source anc trie
pcilutarv.s, and in restoring ins air, waters, anc property,
including animal. plant. and aquatic '''e- of the state to
tneir former condition, ana furthermore is subject to tne
judicial imposition of a civii penalty for each offense in
an amount of no', more than $10,000 per offense. How-
ever, the court may receive evidence in mitigation. Each
day during any portion 0' which such violation occurs
constitutes a separate offense. Nothing herein shall give
the department the right to bring an action on behalf of
any private person.
(2) Whenever two or more persons pollute the air or
waters of the state in violation of this chapter or any rule,
regulation, cr order of the department so tha; tne dam-
age is indivisible, each violator shall be jomt'y and sever-
ally liable for such damage anc for the reasonable cost
and expenses of the state incurred in tracing the source
of discharge, in controlling and abating the source and
the pollutants, and in restoring the air, waters, and prop-
erty, including the animal, plant, and aquatic life of the
state, to their former condition. However, if said damage
is divisible and may be attributed 10 a particular violator
or violators, each violator is liable only for that damage
attributable to his violation.
(3) In assessing damages for fish killed, the value of
the fish is to be determined in accordance with a table
of values for individual categories of fish which shall be
promulgated by the department. At the time the table is
aoopted, the department shall utilize tables of values
established by the Department of Natural Resources
and the Game and Fresh Water Fish Commission. The
total number of fish killed may be estimated by standard
practices used in estimating fish population.
(4) The damage provisions of this section shall not
apply to damage resulting from the application of feder-
ally approved or state-approved chemicals to the
waters in the state for the control of insects, aquatic
weeds, or algae, provided the application of such chemi-
cals is done in accordance with a program approved
pursuant to s. 403.088(1) and provided said application
is not done negligently.
History.—1. 15. en. 67-«36. is. 26. 25. ea. 65-106. i. 1, ch. 70-ui: ». 1. en.
71-204:». 3. en. 72-2B6:». 7. en. 74-133: j 1. en. 76-112: i. 3. en. 78-9e.
403.151 Compliance with rules or orders of depart-
ment.—All rules or orders of the department which
require action to comply with standards adopted by it,
or orders to comply with any provisions of this act, may
specify a reasonable time for such compliance.
History.—s. eft. 67-*3£. ss. 26. 25. cn. €5-106.
403.161 Prohibitions, violation, penalty, intent.—
(1) It shall be a violation of this chapter, and it shall
be prohibited for any person:
(a) To cause pollution, except as otherwise provided
in this chapter, so as to harm or injure human health or
welfare, animal, plant, or aquatic life or property.
(b) To fail to obtain any permit required by this chap-
ter or by rule or regulation, or to violate or fail to comply
with any rule, regulation, order, permit, or certification
adoDted or issued by the department pursuant to its
lawful authority.
(c) Tc ¦•.r.ow:nc,y make any !a:se statement. repre-
sentation, or certification in any application, reccrc.
reccrt. p. an. cr other cocumerv. tilec or recjirec tc ce
me:n;amec uncer :r,is chaster, cr ;o falsify, tamper w:;-..
cr kncwmg:y rencer maccurate any mcnr.orir.c; cevice cr
method recuirec to be maintained uncer this cnap'.er or
by any permit, rule, regulation, or oroer issued unae' this
chaster.
(d) For any person who owns or operates a facility
to fail to report to the representative of the department,
as established by department rule, within one workinc
day of discovery ol a release of hazardous substances
trom the facility if the owner or operator is reouired to
report the release to the United States Environmental
Protection Agency in accordance with A2 U.S.C. s. 5502.
(2) Whoever commits a violation specifiec in subsec-
tion (1) is liaDle lo the state for any damage causec ana
fo: civil penalties as provided in s. 403.141.
(3} Any person who willfully commits a violation
specified in paragraph (1)(a) is guilty of a feiony of the
third degree punisnable as provided in ss. 775.082(3)(g)
and 775.083(1 )(g) by a fine of not more than $50,000 or
by imprisonment for 5 years, or by both, for each
offense. Each day during any portion of which sucn vio-
lation occurs constitutes a separate offense.
(4) Any person who commits a violation specified in
paragraph (1)(a) due to reckless indifference or cross
careless disregard is guilty of a miscemeanor of the sec-
ond degree, punishable as provided in ss. 775.082f4)(b)
and 775.033(1 )(Q) by a fine of no; more than S5.003 c:
by 60 oays in jail, or by both, for each offense.
(5) Any person whe willfully commits a violation
specified in paragraph (1)(b) or paragraph (1)(c) is guilty
of a misdemeanor of the first degree punishable as pro-
vided in ss. 775.082(4)(a) and 775.083(1 )(g) by a fine of
not more than 510,000 or by 6 months in jail, or by both
for each offense.
(6) It is the legislative intent that the civil penalties
and criminal fines imposed by the court be of such
amount as to ensure immediate and continued compli-
ance with this section.
Mittory.—t. 17. cn 67-^36: it. 26. 35. eft. 69-106: *. i. cn. 7Ck3S6: i. 1. cn
7CM39: s *, cn. 72-266: v e. ct\. 7c-;3}; s. 133, cn. 77-10*: 4. \. cn. 77-17*; 5.
21. cn. 66-393: 8. 2. cn. 69-143: t. 6. cn. 89-324.
403.165 Use of pollution awards; pollution recovery
fund.—There is hereby created a Pollution Recovery
Fund which is to be supervised and used by the depart-
ment to restore polluted areas of the state, as defined
by the department, to the condition they were in oefore
pollution occurred or to otherwise enhance pollution
control activities in polluted areas. The fund shall consist
of all moneys recovered by the state as a result of
actions against any person for violation of any of the pro-
visions of this chapter. The moneys shall be disbursed
first to pay all amounts necessary to restore the respec-
tive polluted areas which were the subjects of state
actions or to otherwise enhance pollution control activi-
ties in such areas. Any moneys remaining in the fund
shall then be used by the department, as it sees fit. to
pay for any work needed to restore areas which required
more money than the state was able to obtain by court
action or otherwise or to restore other polluted areas. In
determining what other areas should be chosen, the
aepartment shall give priority to restoring areas that are
21
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Ch. <03
ENVIRONMENTAL CONTROL
F.S. 1991
wi;nm tne same districts. as defined 'n s 372.069. as the
areas wnere ne violations occurred.
i i. c*; ». '6. 66-'8c. • n, cn. 86-393.
403.1655 Environmental short-term emergency
response program.—
(1) I; is the purpose ol 'his section to provide a
mechanism through wnich the state can immediately
respond to short-term emergencies involving a threat to
or an actual contamination of surface and ground water.
It is the intent of the Legislature that the department pro-
vide net only technical assistance when responding to
these short-term emergencies, but aiso financial
resources to responc to emergencies which pose an
immediate environmental or puolic health threat.
(2) The department snail be the lead agency for
interdepartmental coordination relating to water pollu-
tion, toxic substances, and hazardous waste and other
environmental and health emergencies not specifically
designated within other slatutes.
(3) Based upon the nature of the incident, the Water
Quality Assurance Trust Fund or the Inland Protection
Trust Fund, whichever is appropriate, shall be utilized to
enable the department to respond during an emergency
to incidents wnich threaten the environment or public
health when otherwise responsible parties do not ade-
quately respond.
(•i) The department shall adopt rules for the pur-
poses of this section.
Nlatory.—i. 42. cn. 85-310. >. 26. ch. 86-1SS.
'403.1659 Florida Groundwater Protection Task
Force.—
(1) The Florida Groundwater Protection Task Force
is created within the Department of Environmental Reg-
ulation.
(a) The Groundwater Protection Task Force shall
consist of the following members:
1. The Secretary of Community Affairs or his desig-
nee;
2. The Secretary of Environmental Regulation or his
designee;
3. The Secretary of Health and Rehabilitative Ser-
vices or his designee:
4. The Commissioner of Agriculture or his desig-
nee:
5. The Secretary of Transportation or his designee;
and
6. Any additional state agency members as deter-
mined and appointed by the Governor in order to prop-
erly implement the provisions of this act.
(b) The Secretary of Environmental Regulation or a
designee shall chair the task force.
(2) The Florida Groundwater Protection Task Force
shall:
(a) Coordinate the temporary provision of potable
water to every citizen whose drinking water supply has
been deemed by the state to be unsafe, until such time
as a permanent source of potable water has been made
available.
(b). Ensure that public information is provided to all
citizens and local governments in any area in which
drinking water has been deemed by the state to be
unsafe. The task force shall assure:
1. The cevelccmer.t and mamienance of a mailing
list o! each citizen anc e2" 'oca! government ir. an area
v.-i;n con:aminaiec drinkinc wate' wells.
2. The preparation and cistribution of information ;o
all affected citizens and locai governments aescribina
state agency functions in the event of groundwater con-
tamination.
3. The preparation and distribution of a newsletter
as needed to all affected citizens and local govern-
ments, which newsletter shall contain a listing of upcom-
ing scheduled activities, the answers to frecuentlv sub-
mitted questions, and a listing of possible solutions or
remedies to water ccniaminaticn problems.
4. The availability cf a toll-free telephone numoer tc
allow citizens of the state access to information record-
ing contaminated water supplies.
(c) Make recommendations to any person or govern-
mental agency regarding groundwater contamination
affecting public or private wells.
(d) Ensure that a current inventory of all groundwa-
ter contamination research activities by public and pri-
vate universities in the state: federal, state, and local
agencies: and private industry is developed and main-
tained. This inventory shall include, but is not limited tc,
a statewide listing of all facilities with groundwater test-
ing capabilities in order to ensure that all citizens nave
their water tested within a reasonable period of time dur-
ing a crisis situation.
(e) File, by October 1 annually, a report summarizing
the activities of the task force during the past year. The
report shall include, but is not limited to, a chronological
listing of all groundwater contamination incidents,
response strategy used by the state for each incident,
actual costs for each incident, and an evaluation and
recommendation concerning the needs of the state for
the coming year with respect to groundwater contami-
nation problems. A copy of the report shall be sent to tne
Governor, the President of the Senate, and the Speaker
of the House of Representatives.
(3) The Florida Groundwater Protection Task Force
shall meet as needed, at the caJi of the chairman, to
carry out the provisions of this section.
History. —v 2?. civ %. 2. eft. &S-61
Octoo* i. 1965. by • Z. cn. 85-65
403.1815 Construction of water distribution mains
and sewage collection and transmission systems;
local regulation.—Notwithstanding any other provision
of this chapter to the contrary, the department may,
upon request, allow any county or municipality to inde-
pendently regulate the construction of water distribution
mains of 12 inches or less, gravity sewage collection
systems of 12 inches or less, and sewage force mams
of 12 inches or less, and pump stations appurtenant to
such force mains, provided the plant is owned by the
county or municipality making the request for approval.
The approval may apply to all or any part of such sys-
tems. In considering such request, the department shall
determine the administrative and engineering ability of
a county or municipality to administer and comply with
the requirements of this section. In the event the depart-
ment allows any county or municipality to independently
regulate the construction of such systems, these con-
22
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 4C3
struction projects shall be exempt from department per-
mit requirements. However, notning in this section shall
relieve a county or a municipality from any requirement
to obtain the necessary permits for construction activi-
ties in waters of the state or of the United States or from
complying with all other provisions of this chapter and
rules promulgated thereunder. The exemption provided
by this section shall not apply lo any connection to any
water or sewerage system which the department has
deemed to be in substantial noncompliance with appli-
cable laws and standards if the department has so noti-
fied the respective county or municipality. Each county
or municipality granted such authority shall submit
monthly reports to the department of the number of con-
nections and geographical location of such connections
made to any water or sewerage system owned by such
county or municipality and shall, not later t ian July 1 of
each year, submit an updated map of any water distribu-
tion system and sewage collection and transmission
system owned by the county or municipality. Such map
shall indicate the extensions of such systems con-
structed for the preceding year.
Hlttory.—s. I. cn. 80-394: j. 33. eft. 91-306.
403.182 Local pollution control programs.—
(1) Each county and municipality or any combination
thereof may establish and administer a local pollution
control program if it complies with this act. Local pollu-
tion control programs in existence on the effective date
of this act shall not be ousted of jurisdiction if such local
program complies with this act. All local pollution control
programs, whether established before or after the effec-
tive date of this act, must:
(a) Be approved by the department as adequate to
meet the requirements of this act and any applicable
rules and regulations pursuant thereto.
(b) Provide by ordinance, regulation, or local law for
requirements compatible with, or stricter or more exten-
sive than those imposed by this act and regulations
issued thereunder.
(c) Provide for the enforcement of such require-
ments by appropriate administrative and judicial proc-
ess.
(d) Provide for administrative organization, staff,
financial and other resources necessary to effectively
and efficiently carry out its program.
(2) The department shall have the exclusive author-
ity and power to require and issue permits; provided,
however, that the department may delegate its power
and authority to local pollution control organizations if
the department finds it necessary or desirable to do so.
(3) If the department finds that the location, charac-
ter or extent of particular concentrations of population,
contaminant sources, the geographic, topographic or
meteorological considerations, or any combinations
thereof, are such as to make impracticable the mainte-
nance of appropriate levels of air and water quality with-
out an areawide pollution control program, the depart-
ment may determine the boundaries within which such
program is necessary and require it as the only accept-
able alternative to direct state administration.
(4)(a) If the department has reason to believe that a
pollution control program in force pursuant to this sec-
tion is inadequate to prevent and control pollution in the
jurisdiction to which such program reiates. or that such
program is being administered in a manner inconsistent
with the requirements of this act, it shall proceed lo
determine tne matter.
(b) If the department determines thai such program
is inadequate to prevent and control pollution in the
municipality or county or municipalities or counties to
which such program relates, or that such program is not
accomplishing the purposes of this act, it shall require
that necessary corrective measures be taken within a
reasonable period of time, not to exceed 90 days.
(c) If the municipality, county, or municipalities or
counties fail to take such necessary corrective action
within the time required, the department shall adminis-
ter within such municipality, county, or municipalities or
counties all of the regulatory provisions of this act. Such
pollution control program shail supersede all municipal
or county pollution iaws, regulations, ordinances and
requirements in the affected jurisdiction.
(d) If the department finds that the control of a par-
ticular class of contaminant source because of its com-
plexity or magnitude is beyond the reasonable capability
of the local pollution control authorities or may be more
efficiently and economically performed at the state level,
it may assume and retain jurisdiction over that class of
contaminant source. Classifications pursuant to this
paragraph may be either on the basis of the nature of the
sources involved or on the basis of their relationship to
the size of the communities in which they are located.
(5) Any municipality or county in which the depart-
ment administers its pollution control program pursuant
to subsection (4) of this section may with the approval
of the department establish or resume a municipal or
county pollution control program which meets the
requirements of subsection (1) of this section.
(6) Notwithstanding the existence of any local pollu-
tion control program, whether created by a county or
municipality or a combination thereof or by a special law,
the department shall have jurisdiction to enforce the pro-
visions of this chapter and any rules, regulations, or
orders issued pursuant to this chapter throughout the
state; however, whenever rules, regulations, or orders of
a stricter or more stringent nature have been adopted
by a local pollution control program, the department, if
it elects to assert its jurisdiction, shall then enforce the
stricter rules, regulations, or orders in the jurisdiction
where they apply.
(7) It shall be a violation of this chapter to violate, or
fail to comply with, a rule, regulation, or order of a stricter
or more stringent nature adopted by a local pollution
control program, and the same shall be punishable as
provided by s. 403.161. If any local program changes
any rule, regulation, or order, whether or not of a stricter
or more stringent nature, such change shall not apply to
any installation or source operating at the time of such
change in conformance with a currently valid permit
issued by the Department of Environmental Regulation.
(8) Nothing in this act shall prevent any local pollu-
tion control program from enforcing its own rules, regula-
tions, or orders. All remedies of the Department of Envi-
ronmental Regulation under this chapter shall be avail-
able, as an alternative to local enforcement provisions,
23
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
to each local pollution control program to enforce any
provision of local law. When the department and a local
program institute separate lawsuits against the same
party for violation of a state or local pollution law, rule,
regulation, or order arising out of the same act, the suits
shall be consolidated when possible.
(9) Each local pollution control program shall coop-
erate with and assist the department in carrying out its
powers, duties, and functions.
History.—>¦ 19. eft. 67-436: ts. 26. 35. ch. 69-106: t. 2. ch. 71-137; ts. 1. 2, ch.
73-256; % U. ch. 7&-9S: t. 76. ch. 79-65; s 6. ch. 89-143.
403.1821 Water pollution control and sewage treat-
ment.—Sections 403.1821-403.1832 shall be known
and cited as the "Florida Water Pollution Control and
Sewage Treatment Plant Grant Act."
History-—'• '• Ch. 70-251; *. 47. ch 83-310.
403.1822 Definitions for ss. 403.1821-403.1832.—
As used in ss. 403.1821-403.1832, the term:
(1) "Department" refers to the Department of Envi-
ronmental Regulation.
(2) "Grants," "grant," "state grants," or "state grant"
refers to disbursements from the State Water Pollution
Control Trust Fund pursuant to s. 403.1825.
(3) 'Local governmental agencies" refers to any
municipality, county, district, or authority, or any agency
thereof, or a combination of two or more of the foregoing,
acting jointly in connection with a project, having juris-
diction over collection, transmission, treatment, or dis-
posal of sewage, industrial wastes, stormwater, or other
wastes and includes a district or authority the principal
responsibility of which is to provide airport, industrial or
research park, or port facilities to the public.
(4) ¦Project* means all or part of a sewage treatment
or disposal facility, or other cost-effective alternative,
and may include the construction or reconstruction of
existing sewage collection or transmission lines.
Htttory.—• 2. eft.'70-251: ». I.ch. 70-439; t. i eft. 71-137; ». 113. eft. 71-355:
•. 77. en. 79-65: a. 48. eft. 83-310: t. 1, eft. 87-107; a. 35. ch. 80-279.
403.1823 Department of Environmental Regulation;
rulemaking authority; administration of funds.—The
department shall:
(1) Promulgate rules and regulations to carry out the
purposes of ss. 403.1821-403.1832.
(2) Administer and control all funds appropriated to
or received by the department for the purposes of ss.
403.1821-403.1832.
History.—s. 3. en. 70-251: ». I. en. 70-«39: ». <9, eft. 83-310.
403.1824 State Water Pollution Control Trust Fund.
A trust fund to be known as the "State Water Pollution
Control Trust Fund" is established in the State Treasury
to be used for state grants to local governmental agen-
cies for the construction or reconstruction of sewage
collection, transmission, treatment, or disposal facilities
or cost-effective alternatives. All funds received by the
department to carry out the purposes of ss. 403.1821-
403.1832 shall be deposited in this fund; however, at
least 45 percent of the funds received by the depart-
ment and deposited in this fund shall be transferred to
the Small Community Sewer Construction Assistance
Trust Fund. The department may expend up to 2 per-
cent of the State Water Pollution Control Trust Fund to
cover the cost of reviewing and acting upon gran: appli-
cations by a local governmental agency and the cost of
surveillance and other field services associated with the
application.
Hlttory.—I. 4. Ch. 70-251; » 1. cn 70-439. i. 50. eft. 83-310.
403.1825 Grant payments.—Warrants for the pay-
ment of grants to local governmental agencies or incre-
ments thereof from the Water Pollution Control Trust
Fund shall be issued by the State Comptroller upon cer-
tification to him by the department that such payments
are due and payable under the department's published
rules and regulations.
HJitory.—$. 5. ch. 70-251; » i. ch. 70-439.
403.1826 Grants, requirements for eligibility.—
(1) Grants shall be made under ss. 403.1821-
403.1832 for projects eligible as provided in rules of the
department. Only those projects to be constructed after
the effective date of this act are eligible for grants pursu-
ant to this act.
(2) No grant may be made for any project unless
such project and the plans and specifications therefor
are aoproved by the department, subject to such
requirements as the department imposes. The costs for
advanced waste treatment facilities, or portions thereof,
required for discharge to surface waters or g. jnd water
protection or protection of public health are eligible for
funding.
(3) No grant may be made until the local governmen-
tal agency has available to it that part of the total cost
of the project which is in excess of the applicable grant.
(4) The department shall require local governmental
funds in the amount of 45 percent of eligible project
costs as determined by rules of the department. The
department is authorized to establish a maximum grant
for each local governmental agency pursuant to this act.
(5) Grants made under ss. 403.1821-403.1832 shall
be paid to the local governmental agency as provided
by department rule.
(6) A grant may not be made unless the local gov-
ernmental agency assures the department of the proper
and efficient operation and maintenance of the project
after construction. Revenue sufficient to ensure that the
facility will be self-supporting shall be generated from
sources which include, but are not limited to, service
charges and connection fees. The revenue generated
shall provide for financing future sanitary sewerage capi-
tal improvements. The grantee shall accumulate, during
the design life of the grant-funded project, moneys in
an amount equivalent to the grant amount adjusted for
inflationary cost increases.
(7) No grant may be made unless the local govern-
mental agency has filed properly executed forms and
applications prescribed by the department.
(8) Any local governmental agency receiving assist-
ance under ss. 403.1821-403.1832 shall keep such rec-
ords as the department prescribes, including records
which fully disclose the amount and disposition by the
recipient of the proceeds of such assistance, the total
cost of the project or undertaking in connection with
such assistance given or used, the amount of that por-
tion of the cost of the project or undertaking supplied by
other sources, and such other records as will facilitate
24
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
an effective audit. The department and the Auditor Gen-
eral or any of their duly authorized representatives shall
have access, for the purpose of audit and examination,
to any books, documents, papers, and records of the
recipient that are pertinent to grants received under ss.
403.1821-403.1832. Upon project completion, the local
governmental agency shall submit to the department a
separate audit, by an independent certified public
accountant, of the grant expenditures.
(9) Any project satisfactorily planned and designed
in accordance with the requirements of the United
States Environmental Protection Agency is eligible for
funding under this act.
Mlitory.—J. 6. ch. 70-25I-. i. I. ch. 70-439: s. 51. ch. 83-310: s. 28. eft. 84-338"
J. 52. CO. 85-81: s. 36. eh. 89-279.
403.1829 Funding of projects; priorities.—Eligible
projects shall be funded according to priorities estab-
lished by department rule. Such priorities shall be estab-
lished according to the extent each project is intended
to remove, mitigate, or prevent adverse effects on sur-
face or ground water quality and public health.
Advanced waste treatment facilities or portions thereof
which are required for discharge to surface waters or
ground water protection or protection of public health,
which are required by the department, and which are
determined to be ineligible for federal funding are eligi-
ble for supplemental state funding under this act.
History.—«. 9. en. 70-251: i. 1. cn. 70-439: «. 52. en. 83-310.
403.1832 Department to accept federal aid.—The
department is designated as the administrative agency
of the state to apply for and accept any funds or other
aid and to cooperate and enter into contacts and agree-
ments with the Federal Government relating to the plan-
ning, design, construction, operation, maintenance, and
enforcement activities of the program to provide clean
water and pollution abatement of the waters of the state
or to any other related purpose which the Congress of
the United States has authorized or may authorize. The
department is authorized in the name of the state to
make such applications, sign such documents, give
such assurances, and do such other things as are nec-
essary to obtain such aid from or cooperate with the
United States Government or any agency thereof. The
department may consent to enter into contracts and
agreements and cooperate with any other state agency,
local governmental agency, person, or other state when
it is necessary to carry out the provisions of ss.
403.1821-403.1832.
History.—t. 12. eh. 70-251: *. 1. en. 70-439: >. S3, eh. 83-310.
403.1834 State bonds to finance or refinance facili-
ties; exemption from taxation.—
(1) The issuance of state bonds to finance or refi-
nance the construction of water supply and distribution
facilities, stormwater control and treatment facilities, and
air and water pollution control and abatement and solid
waste disposal facilities, payable primarily from the
pledged revenues provided for by s. 14, Art. VII of the
State Constitution or from such pledged revenues and
the full faith and credit of any county, municipality, dis-
trict, authority, or any agency thereof, and pledging the
full faith and credit of the state as additional security, is
authorized, subject and pursuant to the provisions of s.
14, Art. VII of the State Constitution, the provisions of the
State Bond Act, ss. 215.57-215.83. as amended, and
the provisions of this section.
(2) The State Board of Administration is designated
as the state fiscal agency to make the determinations
required by s. 14, Art. VII of the State Constitution in con-
nection with the issuance of such bonds.
(3) The amount of the state bonds to be issued shall
be determined by the Division of Bond Finance of the
Department of General Services. However, the total
principal amount issued shall not exceed $300 million in
any state fiscal year. This limitation does not apply to
bonds issued to refinance outstanding bonds that were
issued pursuant to this section in a previous fiscal year.
(4) The facilities to be financed or refinanced with
the proceeds of such state bonds shall be determined
and approved by the Department of Environmental Reg-
ulation and may be constructed, acquired, maintained,
and operated by any county, municipality, district, or
authority, or any agency thereof, or by the department.
(5) The Department of Environmental Regulation
and the Division of Bond Finance of the Department of
General Services are hereby authorized to enter into
lease-purchase agreements between such depart-
ments or to enter into lease-purchase agreements or
loan agreements between either of such departments
and any county, municipality, district, or authority, or any
agency thereof, for such periods and under such other
terms and conditions as may be mutually agreed upon
by the parties thereto in order to carry out the purposes
of s. 14, Art. VII of the State Constitution and this section.
(6) The Department of Environmental Regulation
shall have power to fix, establish, and collect fees, rent-
als, or other charges for the use or benefit of said facili-
ties or may delegate such power to any county, munici-
pality, district, authority, or any agency thereof under
such terms and conditions and for such periods as may
be mutually agreed upon.
(7) It is found and declared that said facilities will
constitute a public governmental purpose necessary for
the health and welfare of all the inhabitants of the state,
and none of said facilities or said state bonds or the
interest thereon shall ever be subject to taxation by the
state or any political subdivision or agency thereof. How-
ever, a leasehold interest in property of the state or the
facilities thereon may not be exempted from ad valorem
taxation when a nongovernmental lessee uses such
property for the operation of a multipurpose hazardous
waste treatment facility. The exemption granted by this
subsection shall not be applicable to any tax imposed
by chapter 220 on interest, income, or profits on debt
obligations owned by corporations.
(8) As used in this section, 'water supply and distri-
bution facilities' means a waterworks system as defined
in s. 159.02(9) which is constructed, owned, or operated
by a county, municipality, water management district
created by chapter 373, or regional water supply author-
ity created pursuant to chapter 373, or a water facility of
an authority created by chapter 76-441, Laws of Florida,
as amended by chapter 80-546, Laws of Florida.
History.—ss. 1. 2. 3. «. 5. 6. 7. eft. 70-270: s. 1. ch. 70-439; s. 2. ch. 71-137: s.
*. eh. 73-256: s. 14. ch. 73-327: s. 78. ch. 79-65: «. 1. ch. 81-21: s. 61. ch. 83-218:
». 19. Ch. 86-186: s. I. ch. 87-203: s. 82. en. 88-130.
25
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
403.1835 Sewage treatment facilities revolving
loan program.—
(1) The purpose of this section is to assist in imple-
menting the legislative declaration of public policy as
contained in s. 403.021 by establishing a loan program
to accelerate construction of sewage treatment facilities
by local governmental agencies and to assist local gov-
ernmental agencies.
(2) For the purposes of this section, the term:
(a) "Local governmental agencies" means local gov-
ernmental agencies as defined in s. 403.1822(3).
(b) "Sewage treatment facilities' means all facilities
necessary, including land, for the collection, treatment,
or disposal of domestic wastewater.
(c) "Bonds' means state bonds, certificates, or other
obligations of indebtedness issued by the Division of
Bond Finance of the Department of General Services
pursuant to this section and the State Bond Act.
(3) The department is authorized to make loans to
local governmental agencies to assist them in planning,
designing, and constructing sewage treatment facilities.
The department is authorized to use the funds to pro-
vide loan guarantees, to purchase loan insurance, and
to refinance local debt through the issue of new loans
for projects approved by the department. Local govern-
mental agencies are authorized to borrow funds made
available pursuant to this section and may pledge any
revenue available to them to repay any funds borrowed.
The department shall administer loans to local govern-
mental agencies so that at least 15 percent of each
annual allocation for loans is reserved for small commu-
nities.
(4) The term of loans made pursuant to this section
shall not exceed 30 years. The interest rate on loans
shall be no greater than that paid on the last bonds sold
pursuant to s. 14, Art. VII, State Constitution.
(5Xa) The department is authorized to make rules
necessary to carry out the purpose of this section,
including rules to administer the state revolving fund
authorized pursuant to the Federal Water Pollution Con-
trol Act, as amended.
(b) The department shall prepare an annual report
detailing the amount loaned, interest earned, and loans
outstanding at the end of each fiscal year.
(6) Prior to approval of a loan, the local government
shall:
(a) Provide a repayment schedule.
(b) Submit plans and specifications for sewage
treatment facilities.
(c) Provide assurance that records will be kept using
accepted government accounting standards and that
the department, the Auditor General, or their agents will
have access to all records pertaining to the loan.
(d) Provide assurance that the facility will be prop-
erly operated and maintained.
(e) Document that the revenues generated will be
sufficient to ensure that the facilities will be self-
supporting.
(f) Provide assurance that annual financial audit
reports, and a separate project audit prepared by an
independent certified public accountant upon project
completion, will be submitted to the department.
(7) Eligible projects shall be given priority according
to the extent each project is intended to remove, miti-
gate, or prevent adverse effects on surface or ground
water quality and public health.
(8) If a local governmental agency becomes delin-
quent on its loan, the department shall so certify to the
Comptroller who shall forward the amount delinquent to
the department from any unobligated funds due 10 the
local governmental agency under any revenue sharing
or tax sharing fund established by the state, except as
otherwise provided by the State Constitution. Certifica-
tion of delinquency shall not limit the department from
pursuing other remedies available for default on a loan.
The department may impose a penalty for delinquent
loan payments in the amount of 6 percent of the amount
due in addition to charging the cost to handle and proc-
ess the debt. Penalty interest shall accrue on any
amount due and payable beginning on the 30th day fol-
lowing the date upon which payment is due.
(9) A nonlapsing trust fund with revolving loan provi-
sions to be known as the "Sewage Treatment Revolving
Loan Fund" is hereby established in the State Treasury
to be used as a revolving fund by the department to
carry out the purpose of this section. Any funds therein
which are not needed on an immediate basis for loans
may be invested pursuant to s. 215.49. The cost of
administering the program shall, to the extent possible,
be paid from federal funds and, when federal funds
become no longer available, from reasonable service
fees that may be imposed upon loans. Grants awarded
by the Federal Government to fund revolving loans for
local governmental agencies' sewage treatment facili-
ties shall be deposited into the fund. All moneys avail-
able in the fund are hereby designated to carry out the
purpose of this section. The principal and interest of all
loans repaid and investment earnings shall be depos-
ited into this fund.
Hlttory.—«. I, eft. 72-723: «. 79. eft. 79-65: s. 20. eft. 86-186: •. 37. eh. 8»-279:
i. 34. en. 91-305.
403.1838 Small Community Sewer Construction
Assistance Act.—
(1) This section may be cited as the "Small Commu-
nity Sewer Construction Assistance Act.*
(2)(a) There is established within the Department of
Environmental Regulation the Small Community Sewer
Construction Assistance Trust Fund.
(b) The funds shall be used by the department to
assist small communities with their needs for adequate
sewer facilities. The term "small community" means an
incorporated municipality with a population of 35,000 or
less, according to the latest decennial census.
(3) The department may provide grants to small
communities. Grants shall be made from the Small Com-
munity Sewer Construction Assistance Trust Fund in
accordance with rules adopted by the Environmental
Regulation Commission. The department may grant up
to $3 million to any small community.
(4) The Environmental Regulation Commission shall:
(a) Require a 45-percent nonstate match, except
that, for a grant of less than $50,000, the commission
may waive all or a part of the matching requirement:
26
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 4C3
1. Where water quality standards have been
exceeded by an amount that constitutes an immediate
health hazard; or
2. In a community where the gross per capita
income is below the state average, as determined by the
United States Department of Commerce, and where
sewer systems have failed to meet department stand-
ards.
(b) Require appropriate user charges and connec-
tion fees sufficient to ensure the long-term operation
and maintenance of the facility to be constructed under
any grant.
(c) Require compliance with all water quality stand-
ards.
(d) Establish a system to determine eligibility and
relative priority for applications for grants bv small com-
munities.
(e) Require applications for grants to be submitted
on appropriate forms with appropriate supporting docu-
mentation, require construction to be in accordance with
plans approved by the department, and require record-
keeping.
(5) Any project satisfactorily planned and designed
in accordance with the requirements of the United
States Environmental Protection Agency is eligible for
funding under this act.
(6) A grant may not be made unless the local gov-
ernmental agency assures the department of the proper
and efficient operation and maintenance of the project
after construction. Revenue sufficient to ensure that the
facility will be self-supporting shall be generated from
sources which include, but are not limited to, service
charges and connection fees. The revenue generated
shall provide for financing future sanitary sewerage capi-
tal improvements. The grantee shall accumulate, during
the design life of the grant-funded project, moneys in
an amount equivalent to the grant amount adjusted for
inflationary cost increases.
(7) Any local government agency which receives
assistance under this section shall keep such records as
the department prescribes, including records which fully
disclose the amount and disposition by the recipient of
the proceeds of such assistance, the total cost of the
project, the amount of that portion of the project sup-
plied by other sources, and such other records as will
facilitate effective audit. The department and the Auditor
General or any of their duly authorized representatives
shall have access, for the purpose of audit and examina-
tion, to any books, documents, papers, and records of
the recipient that are pertinent to grants received under
this section. Upon project completion, the local govern-
ment agency shall submit to the department a separate
audit, by an independent certified public accountant, of
the grant expenditures.
Hlttery.—1. 55. eft. 83-310: i. 29. cn. 84-338: «. S3, ch. 85-61: l. 38. eft. 89-Z79.
403.191 Construction in relation to other law.—
(1) It is the purpose of this act to provide additional
and cumulative remedies to prevent, abate, and control
the pollution of the air and waters of the state. Nothing
contained herein shall be construed to abridge or alter
rights of action or remedies in equity under the common
law or statutory law, criminal or civil, nor shall any provi-
sions of this act, or any act done by virtue thereof, be
construed as estopping the state or any municipality, or
person affected by air or water pollution, in the exercise
of their rights in equity or unc'er tne common law or stat-
utory law to suppress nuisances or to abate pollution.
(2) No civil or criminal remedy for any wrongful
action which is a violation of any rule or regulation of the
department shall be excluded or impaired by the provi-
sions of this chapter.
(3) This act shall limit and restrict the application of
chapter 24952, 1947, Laws of Florida, to any person
operating any industrial plant that has located in the
State of Florida in reliance thereon and exercised rights
and powers granted thereby on and before the effective
date of this act; provided such person shall henceforth
in the exercise of such rights and powers install and use
treatment works or control measures generally equiva-
lent to those installed and used by other similar indus-
trial plants pursuant to the requirements of the depart-
ment.
Hltioiy.—j. 20. eft. 67-436: ts. 26, 35. cn. 69-106.
403.201 Variances.—
(1) Upon application, the department in its discre-
tion may grant a variance from the provisions of this act
or the rules and regulations adopted pursuant hereto.
Variances and renewals thereof may be granted for any
one of the following reasons:
(a) There is no practicable means known or availabie
for the adequate control of the pollution involved.
(b) Compliance with the particular requirement or
requirements from which a variance is sought will neces-
sitate the taking of measures which, because of their
extent or cost, must be spread over a considerable
period of time. A variance granted for this reason shall
prescribe a timetable for the taking of the measures
required.
(c) To relieve or prevent hardship of a kind other
than those provided for in paragraphs (a) and (b). Vari-
ances and renewals thereof granted under authority of
this paragraph shall each be limited to a period of 24
months, except that variances granted pursuant to part
II may extend for the life of the permit or certification.
(2) No variance shall be granted from any provision
or requirement concerning hazardous waste manage-
ment which would result in the provision or requirement
being less stringent than a comparable federal provision
or requirement, except as provided in s. 403.7221.
(3) The department shall publish notice, or shall
require a petitioner for a variance to publish notice, in the
Florida Administrative Weekly and in a newspaper of
general circulation in the area affected, of proposed
agency action; and the department shall afford inter-
ested persons an opportunity for a hearing on each
application for a variance. If no request for hearing is
filed with the department within 14 days of published
notice, the department may proceed to final agency
action without a hearing.
(4) The department may require by rule a process-
ing fee for and may prescribe such time limits and other
conditions to the granting of a variance as it deems
appropriate.
History.—i. 21. ch. 67-436: ». 26. 35. eh. 69-106: «. 1. ch. 74-170: r 14. cn.
78-95: 9. 7. cn. 82-27: a. 21. ch. 86-186.
27
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
403.221 Pending proceedings.—No legal proceed-
ings snail be abated because of any transfers made in
this section, but the appropriate party exercising like
authority or performing like duties or functions shall be
substituted in said proceedings.
Mlitoty.—>. 23. ch. 67-
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(d) The nature and object of the weather modifica-
tion operation which the applicant proposes to conduct,
including a general description ol such operation.
(e) The method and type of equipment and the type
and composition of materials that the applicant pro-
poses to use.
(f) Such other pertinent inlormation as the depart-
ment may require.
(2) Each application shall be accompanied by a filing
fee in the sum of $1,000 and proof of financial responsi-
bility as required by s. 403.321.
History.—i. 4. ch. 57-128: »>. 26. 3S. en. 69-106: >. 18. cn. 88-333.
Note.—Former s. 373.291.
403.321 Proof of financial responsibility.—
(1) No license shall be issued to any person until he
has filed with the department proof of abili1 / to respond
in damages for liability on account of acc-.dents arising
out of the weather modification operations to be con-
ducted by him in the amount of $10,000 because of bod-
ily injury to or death of one person resulting from any one
incident, and subject to said limit for one person, in the
amount of $100,000 because of bodily injury to or death
of two or more persons resulting from any one incident,
and in the amount of $100,000 because of injury to or
destruction of property of others resulting from any one
incident.
(2) Proof of financial responsibility may be given by
filing with the department a certificate of insurance or a
bond in the required amount.
History.—s. 5. en. 57-128; >». 26. 35. en. 69-106.
Net#.—Former s. 373,301.
403.331 Issuance of license; suspension or revo-
cation; renewal.—
(1) The department shall issue a license to each
applicant who:
(a) By education, skill and experience appears to be
qualified to undertake the weather modification opera-
tion proposed in his application.
(b) Files proof of his financial responsibility as
required by s. 403.321.
(c) Pays filing fee required in s. 403.311.
(2) Each such license shall entitle the licensee to
conduct the operation described in the application for
the calendar year for which the license is issued unless
the license is sooner revoked or suspended. The con-
ducting of any weather modification operation or the use
of any equipment or materials other than those
described in the application shall be cause for revoca-
tion or suspension of the license.
(3) The license may be renewed annually by pay-
ment of a filing fee in the sum of $50.
Hlttory.—%. 6. cfi 57-128: •«. 26. 3S. eft. 69-106.
Note.—Former s. 373.311.
403.341 Filing and publication of notice of intention
to operate; limitation on area and time.—Prior to under-
taking any operation authorized by the license, the
licensee shall file with the department and cause to be
published a notice of intention. The licensee shall then
confine his activities substantially within the time and
area limits set forth in the notice of intention.
History.—i 7, ch. 57-128. ji 26. 35. ch. 69-106.
Not*.—Fofmef t. 373.321.
403.351 Contents of notice of intention.—The
notice of intention shall set forth all of the following:
(1) The name and post-office address of the
licensee.
(2) The name and post-office address of the per-
sons on whose behalf the weather modification opera-
tion is to be conducted if other than the licensee.
(3) The nature and object of the weather modifica-
tion operation which licensee proposes to conduct,
including a general description of such operation.
(4) The method and type of equipment and the type
and composition of the materials the licensee proposes
to use.
(5) The area in which and the approximate time dur-
ing which the operation will be conducted.
(6) The area which will be affected by the operation
as nearly as the same may be determined in advance.
History.—a. Q. cn. 57-*25
Note.—Former 5. 373.331.
403.361 Publication of notice of intention.—The
licensee shall cause the notice of intention to be pub-
lished at least once a week for 2 consecutive weeks in
a newspaper having general circulation and published
within any county wherein the operation is to be con-
ducted and in which the affected area is located, or if the
operation is to be conducted in more than one county
or if the affected area is located in more than one county
or is located in a county other than the one in which the
operation is to be conducted, then such notice shall be
published in like manner in a newspaper having a gen-
eral circulation and published within each of such coun-
ties. In case there is no newspaper published within the
appropriate county, publication shall be made in a news-
paper having a general circulation within the county.
MlttorY-—1. 9. Qti, 57-128.
Note.—Former s. 373.341.
403.371 Proof of publication.—Proof of publication
shall be filed by the licensee with the department 15
days from the date of the last publication of notice. Proof
of publication shall be by copy of the notice as pub-
lished, attached to and made a part of the affidavit of the
publisher or foreman of the newspaper publishing the
notice.
History.—s. 10. cn. 57-128: a». 26. 35. ch. 69-106.
Note.—Former s. 373.351.
403.381 Record and reports of operations.—
(1) Each licensee shall keep and maintain a record
of all operations conducted by him pursuant to his
license showing the method employed, the type and
composition of materials used, the times and places of
operation, the name and post office address of each per-
son participating or assisting in the operation other than
licensee and such ether information as may be required
by the department and shall report the same to the
department at such times as it may require.
(2) The records of the department and the reports
of all licensees shall be available for public examination.
NUto»y.—«. 11. en. 57-128: n. 26. 35. ch. 69-106.
Note.—Former a. 373361.
403.391 Emergency licenses.—Notwithstanding
any provisions of this act to the contrary, the department
may grant a license permitting a weather modification
29
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
operation without compliance by the licensee with the
provisions of ss. 403.351-403.371, and without publica-
tion of notice of intention as required by s. 403.341 if the
operation appears to the department to be necessary or
desirable in aid of the extinguishment of fire, dispersal
of fog, or other emergency.
Mlttory.—j 12. eh. 57-128: is. 26. 3S. ch. 69-106.
Not*.—Fornet ». 373371.
403.401 Suspension or revocation of license.—Any
license may be revoked or suspended if the department
finds that the licensee has failed or refused to comply
with any of (he provisions of this act.
History.—a. 13. ch. 57-128: • 21. ch. 63-512: as. 26. 35. en. W-106: a. u. ch.
78-95
Not®.—Fofmer s. 373.381,
403.411 Penalty.—Any person conducting a
weather modification operation without first having pro-
cured a license, or who shall make a false statement in
his application for license, or who shall fail to file any
report or reports as required by this act, or who shall
conduct any weather modification operation after revo-
cation or suspension of his license, or who shall violate
any other provision of this act, shall be guilty of a misde-
meanor of the second degree, punishable as provided
in s. 775.082 or s. 775.083; and, if a corporation, shall be
guilty of a misdemeanor of the second degree, punish-
able as provided in s. 775.083. Each such violation shall
be a separate offense.
Hlitary.—a. u. cn. 57-128: •. 351. eft. 71-136.
Not*.—Former » 373491.
403.412 Environmental Protection Act.—
(1) This section shall be known and may be cited as
the "Environmental Protection Act of 1971."
(2)(a) The Department of Legal Affairs, any political
subdivision or municipality of the state, or a citizen of the
state may maintain an action for injunctive relief against:
1. Any governmental agency or authority charged
by law with the duty of enforcing laws, rules, and regula-
tions for the protection of the air, water, and other natu-
ral resources of the state to compel such governmental
authority to enforce such laws, rules, and regulations;
2. Any person, natural or corporate, or governmen-
tal agency or authority to enjoin such persons, agencies,
or authorities from violating any laws, rules, or regula-
tions for the protection of the air, water, and other natu-
ral resources of the state.
(b) In any suit under paragraph (a), the Department
of Legal Affairs may intervene to represent the interests
of the state.
(c) As a condition precedent to the institution of an
action pursuant to paragraph (a), the complaining party
shall first file with the governmental agencies or authori-
ties charged by law with the duty of regulating or prohib-
iting the act or conduct complained of a verified com-
plaint setting forth the facts upon which the complaint
is based and the manner in which the complaining party
is affected. Upon receipt of a complaint, the governmen-
tal agency or authority shall forthwith transmit, by regis-
tered or certified mail, a copy of such complaint to those
parties charged with violating the laws, rules, and regu-
lations for the protection of the air, water, and other natu-
ral resources of the state. The agency receiving such
complaint shall have 30 days after the receipt thereof
within which to take appropriate action. If such action is
not taken within the lime prescribed, the complaining
parly may institute the judicial proceedings authorized
in paragraph (a). However, failure to comply with this
subsection shall not bar an action for a temporary
restraining order to prevent immediate and irreparable
harm from the conduct or activity complained of.
(d) In any action instituted pursuant to paragraph
(a), the court, in the interest of justice, may add as party
defendant any governmental agency or authority
charged with the duty of enforcing the applicable laws,
rules, and regulations for the protection of the air, water,
and other natural resources of the state.
(e) No action pursuant to this section may be main-
tained if the person (natural or corporate) or governmen-
tal agency or authority charged with pollution, impair-
ment, or destruction of the air, water, or other natural
resources of the state is acting or conducting operations
pursuant to currently valid permit or certificate covering
such operations, issued by the appropriate governmen-
tal authorities or agencies, and is complying with the
requirements of said permits or certificates.
(f) In any action instituted pursuant to this section,
other than an action involving a state NPDES permit
authorized under s. 403.0885, the prevailing party or par-
ties shall be entitled to costs and attorney's fees. Any
award of attorney's fees in an action involving such a
state NPDES permit shall be discretionary with the
court. If the court has reasonable ground to doubt the
solvency of the plaintiff or the plaintiff's ability to pay any
cost or judgment which might be rendered against him
in an action brought under this section, the court may
order the plaintiff to post a good and sufficient surety
bond or cash.
(3) The court may grant injunctive relief and impose
conditions on the defendant which are consistent with
and in accordance with law and any rules or regulations
adopted by any state or local governmental agency
which is charged to protect the air, water, and other nat-
ural resources of the state from pollution, impairment, or
destruction.
(4) The doctrines of res judicata and collateral estop-
pel shall apply. The court shall make such orders as nec-
essary to avoid multiplicity of actions.
(5) In any administrative, licensing, or other proceed-
ings authorized by law for the protection of the air,
water, or other natural resources of the state from pollu-
tion, impairment, or destruction, the Department of
Legal Affairs, a political subdivision or municipality of the
state, or a citizen of the state shall have standing to inter-
vene as a party on the filing of a verified pleading assert-
ing that the activity, conduct, or product to be licensed
or permitted has or will have the effect of impairing, pol-
luting, or otherwise injuring the air, water, or other natu-
ral resources of the state.
(6) Venue of any causes brought under this law shall
lie in the county or counties wherein the cause of action
is alleged to have occurred.
History.—«a. I. 2. 3. 4. S. 6. eh. 71-3*3: s. 24. eft. 88-393
1403.413 Florida Utter Law.—
(1) SHORT TITLE.—This section may be cited as the
"Florida Litter Law."
30
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(2) DEFINITIONS.—As used in this section:
(a) "Litter" means any garbage: rubbish; trash:
refuse; can: bottle; box; container; paper; tobacco prod-
uct; tire; appliance: mechanical equipment or part; build-
ing or construction malerial; lool; machinery; wood;
motor vehicle or motor vehicle part: vessel: aircraft: farm
machinery or equipment; sludge from a waste treatment
facility, water supply treatment plant, or air pollution con-
trol facility; or substance in any form resulting from
domestic, industrial, commercial, mining, agricultural, or
governmental operations.
(b) "Person" means any individual, firm, sole propri-
etorship, partnership, corporation, or unincorporated
association.
(c) "Law enforcement officer" means any officer of
the Florida Highway Patrol, a county sheriff's depart-
ment, a municipal law enforcement depar ment, a law
enforcement department of any other political subdivi-
sion, the Department of Natural Resources, or the Game
and Fresh Water Fish Commission. In addition, and
solely for the purposes of this section, "law enforcement
officer" means any employee of a county or municipal
park or recreation department designated by the depart-
ment head as a litter enforcement officer.
(d) "Aircraft" means a motor vehicle or other vehicle
that is used or designed to fly but does not include a
parachute or any other device used primarily as safety
equipment.
(e) "Commercial purpose" means for the purpose of
economic gain.
(f) "Commercial vehicle" means a vehicle that is
owned or used by a business, corporation, association,
partnership, or sole proprietorship or any other entity
conducting business for a commercial purpose.
(g) "Dump" means to dump, throw, discard, place,
deposit, or dispose of.
(h) "Motor vehicle" means an automobile, motorcy-
cle, truck, trailer, semitrailer, truck tractor, or semitrailer
combination or any other vehicle that is powered by a
motor.
(i) 'Vessel" means a boat, barge, or airboat or any
other vehicle used for transportation on water.
(3) RESPONSIBILITY OF LOCAL GOVERNING
BODY OF A COUNTY OR MUNICIPALITY—The local
governing body of a county or a municipality shall deter-
mine the training and qualifications of any employee of
the county or municipality or any employee of the county
or municipal park or recreation department designated
to enforce the provisions of this section if the designated
employee is not a regular law enforcement officer.
(4) DUMPING LITTER PROHIBITED.—Unless other-
wise authorized by law or permit, it is unlawful for any
person to dump litter in any manner or amount:
(a) In or on any public highway, road, street, alley,
or thoroughfare, including any portion of the right-of-
way thereof, or any other public lands, except in contain-
ers or areas lawfully provided therefor. When any litter
is thrown or discarded from a motor vehicle, the operator
or owner of the motor vehicle, or both, shall be deemed
in violation of this section;
(b) In or on any freshwater lake, river, canal, or
stream or tidal or coastal water of the state, including
canals. When any litter is thrown or discarded from a
boat, the operator or owner of the boat, or both, shail be
deemed in violation of this section; or
(c) In or on any private property, unless prior con-
sent of the owner has been given and uniess such litter
will not cause a public nuisance or be in violation ot any
other state or local law, rule, or regulation.
'(5) PENALTIES; ENFORCEMENT.—
(a) Any person who dumps litter in violation of sub-
section (4) in an amount not exceeding 15 pounds in
weight or 27 cubic feet in volume and not for commercial
purposes is guilty of a noncriminal infraction, punishable
by a civil penalty of £50. in addition, the court may
require the violator to pick up litter or perform other labor
commensurate with the offense committed.
(b) Any person who dumps iitter in violation of sub-
section (4) in an amount exceeding 15 pounds in weight
or 27 cubic feet in volume, but not exceeding 500
pounds in weight or 100 cubic feet in volume and not for
commercial purposes is guilty of a misdemeanor of the
first degree, punishable as provided in s. 775.082 or s.
775.083. In addition, the court shall require the violator
to pick up litter or perform other community service com-
mensurate with the offense committed. Further, if the
violation involves the use of a motor vehicle, upon a find-
ing of guilt, whether or not adjudication is withheld or
whether imposition of sentence is withheld, deferred, or
suspended, the court shall forward a record of the find-
ing to the Department of Highway Safety and Motor
Vehicles, which shall record a penalty of three points on
the violator's driver's license pursuant to the point sys-
tem established by s. 322.27.
(c) Any person who dumps litter in violation of sub-
section (4) in an amount exceeding 500 pounds in
weight or 100 cubic feet in volume or in any quantity for
commercial purposes, or dumps litter which is a hazard-
ous waste as defined in s. 403.703, is guilty of a felony
of the third degree, punishable as provided in s. 775.082
or s. 775.083. In addition, the court may order the violator
to:
1. Remove or render harmless the litter that he
dumped in violation of this section;
2. Repair or restore property damaged by, or pay
damages for any damage arising out of, his dumping lit-
ter in violation of this ssction; or
3. Perform public service relating to the removal of
litter dumped in violation of this section or to the restora-
tion of an area polluted by litter dumped in violation 9!
this section.
(d) A courl may enjoin a violation of this section.
(e) A motor vehicle, vessel, aircraft, container,
crane, winch, or machine used to dump litter that
exceeds 500 pounds in weight or 100 cubic feet in vol-
ume is declared contraband and is subject to forfeiture
in the same manner as provided in ss. 932.703 and
932.704.
(f) If a person sustains damages arising out of a vio-
lation o< this section that is punishable as a felony, a
court, in a civil action for such damages, shall order the
person to pay the injured party threefold the actual dam-
ages or $200, whichever amount is greater. In addition,
the court shall order the person to pay the injured party's
court costs and attorney's fees. A final judgment ren-
dered in a criminal proceeding against a defendant
31
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
under this section estops the defendant from asserting
any issue in a subsequent civil action under this para-
graph which he would be estopped from asserting if
such judgment were rendered in the civil action unless
the criminal judgment was based upon a plea of no con-
test or nolo contenaere.
(g) For the purposes of this section, if a person
dumps litter from a commercial vehicle, that person is
presumed to have dumped the litter for commercial pur-
poses.
(h) In the criminal trial of a person charged with vio-
lating this section, the state does not have the burden
of proving that the person did not have the right or
authority to dump the litter or that litter dumped on pri-
vate property causes a public nuisance. The defendant
has the burden of proving that he had authority to dump
the litter and that the litter dumped does not cause a
public nuisance.
(i) It shall be the duty of all law enforcement officers
to enforce the provisions of this section.
(6) ENFORCEMENT BY CERTAIN COUNTY OR
MUNICIPAL EMPLOYEES.—Employees of counties or
municipalities whose duty it is to ensure code compli-
ance or to enforce codes and ordinances may be desig-
nated by the governing body of the county or the munici-
pality to enforce the provisions of this section. Designa-
tion of such employees shall not provide the employees
with the authority to bear arms or to make arrests.
(7) ENFORCEMENT OF OTHER REGULATIONS —
This section does not limit the authority of any state or
local agency to enforce other laws, rules, or ordinances
relating to litter or solid waste management.
Htetory.—is. 1.2. 3.4. 4A, eh. 71-239: >. I.c/v 75-266; ». I. eh. 77-82; •. l.ch.
78-202; >. 7. ch. 80-382; t. 1. en. 82-63. ». 1, en. 88-79: «. 56, eh. 88-130. ». 12.
cn. 89-175: t. M, ch. 89-2S8:1.1. ch. 90-76: n 16.17. ch. 91-286.
'Not*.—Section 1. eft. 90-76. effective October 1,1993. creeled now eub sect mi
(5) and renumbered present subsection (S) as subsection (6) and amended it. Sec-
tion 17. ch. 91 -296. reenected subeection (6). as emended by a. l.ch. 90-76. Effec-
tive October i. 1993. subsections (5) and (6) w* read.
(5) DUMPING RAW HUMAN WASTE PflOHBITEO.—Unless otherwise author-
ized by law or permit, it 9 trtawful (or any perion to dump raw human waste from
any train, ereraft. motor vehide. or nam upon the puttie or privtf e landa or wtf era
of the state.
(6) PENALTES: ENFORCEMENT.—
(a) Any person who dumps titter in violation of subsection (4) in an amount not
eiceading 15 pounds in weight or 27 cubic feet r> volume end not tor oommercial
purposes a guilty of a noncrminaJ infraction, punishable by a cut peneJty of ISO.
in eddition. the court mey requ*e the violator to pefc up litter or perform other labor
oommensurste with the offense committed.
(D) Any person who dumps litter in vvtalion of aubeection (4) in en amount
exceeding 15 pounds n weight or 27 cubic feet in volume, but not exceeding 500
pounds r weight or 100 cubic feet in vofcme and not tor commercial purposes is
gmtty o< a misdemeanor of the first degree, punishable as provided r s. 775.062 or
s. 775.083. m addition, the court shell require the violator to pick up fetter or perform
other community service commensurate with the offense committed. Further. if the
vioiat)on invokes the use of a motor vehicle, upon a findtftg of guflt. whether or not
adjudication is withheld or whether imposition of sentence is withheld, deferred, or
suspended, the court shad forward a record of the fining to the Department of Hqh-
wey Salary end Motor Vehicles, when shel record a penalty of three points on the
violator's dm*r's fecenee pirsuant to the point system established by s. 32227.
(c) Artf person who dumps fetter cn violainn of aubeection (4) in an amouit
exceeding 500 pounds m weight or 100 cube feet in volume or in any quantity for
oommercmi purposes, or dumps litter which is e hazardous wests aa defined n a.
403.703. is gurfty of a felony of the thrd degree, pumhebte aa prowded r s. 775.082
or s 775.063. in eddilcn. the ooixi mey order the Motetor to:
1. Remove or render harmless the litter thtf he dumped In vioMion of this sec-
tion-.
2. Aepeir or restore property damaged by. or pay damages for any damage aria-
ing out of. his dumping fetter in violation of this section; or
3 Perform public serves relating to the removal of fetter dumped in viotifion of
this section or to the restoration of an area poluted by litter dunped in violation of
this section.
(d) A court mey enjoin s violation of this section.
(e) A motor vehicle, vessel, aircraft, container, crane, winch, or machine used to
dumo fetter that exceeds 500 poinds in weight or 100 cube feet In volume is
declared contraband and is subtect to (overture in the seme manner as prowled in
ss. 932.703 and 932.704.
(f) if a person sustains carnages arising out of s v*th violating ih* section, the state
does not have the burden of proving that the person ao not have the ngnt or author-
ity to dump the iittsr or that fetter dumped on pnvaie property causes s public nui-
sance. The defendant has the Purden of proving thai he had authority to dump the
litter and that the litter dumped does not cause a puWc nmaanoe.
(>) It shall be (he duty of all law enforcement officers to enforce the prcansont
of this sectcn
(j) Any person wno violates the d'Ovisjoos of subsection (5) is gui'ty of 8 misde-
meanor of the seoono degree, ounnnaoie as orov»oec n s. 775.C62 or s. 775.083.
provoed. however, thai any person wno dumos more man 500 pounds or more man
100 cube feet of raw human waste, or who dumoa any duentity of such waste for
commercial purposes. »s guilty o< a foiony of the tn*rd degree, puntsneole as provided
in paragraph (c).
403.4131 "Keep Florida Beautiful, Incorporated";
Clean Florida Commission; placement of signs.—
(1) It is the intent of the Legislature that a coordi-
nated effort of interested state and local agencies of
government and other public and private organizations
and interests be developed to plan for and implement
a solution to the litter problems in this state and that the
state provide financial assistance for the establishment
of a nonprofit organization with the name of "Keep Flor-
ida Beautiful, Incorporated" which shall be registered,
incorporated, and operated in compliance with chapter
617. This nonprofit organization shall operate as the
grassroots arm of the state's effort and shall serve as an
umbrella organization for volunteer-based community
programs dedicated to a cleaner environment through
sustained litter prevention. The membership of the
board of directors of this nonprofit organization may
include representatives of the following organizations:
the Florida League of Cities, the Florida Association of
Counties, the Florida Chapter of the National Solid
Waste Management Association, the Florida Audubon
Society, the Florida Nature Conservancy, the Florida
Chapter of the Sierra Club, the Associated Industries of
Florida, the Florida Soft Drink Association, the Florida
Petroleum Council, the Florida Retail Grocers Associa-
tion, the Florida Retail Federation, the Pulp and Paper
Association, the Florida Automobile Dealers Associa-
tion, the Beer Industries of Florida, the Florida Beer
Wholesalers Association, and the Distilled Spirits Whole-
salers.
(2) As used in this section:
(a) "Department' means the Department of Trans-
portation.
(b) "Litter" means any garbage, rubbish, trash,
refuse, can, bottle, container, paper, lighted or unlighted
cigarette or cigar, or flaming or glowing material.
(c) "Littering" means the act of throwing, discarding,
placing, depositing, or otherwise disposing of litter
improperly along public highways, on public or private
lands, or in public waters.
1(3) There is created within the Department of Trans-
portation the Clean Florida Commission, which shall be
responsible for coordinating a statewide litter prevention
program involving state agencies, local governments,
local organizations, and individuals. The Clean Florida
32
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
Commission shall consist of the following members or
their designees:
(a) The Secretary of Environmental Regulation, who
shall be the chairman.
(b) The Secretary of Transportation.
(c) The Executive Director of the Department of Nat-
ural Resources.
(d) The Commissioner of Education.
(e) The Secretary of Commerce.
These members shall serve as ex officio members of the
commission and shall be considered as the base mem-
bers of the commission. Additional members from inter-
ested state agencies, local governments, and state and
local organizations may serve on the commission by
unanimous consent of the commission's base members.
'(4) The commission shall have the folic wing powers
and duties:
(a) To appoint an executive director, who may
employ such other administrative staff and clerical staff
as are necessary to carry out the purpose of litter pre-
vention in this state as identified in this section. Such
employment by the commission may be pursuant to
contract with a public or private entity.
(b) To establish an "adopt-a-highway" program to
allow local organizations to be identified with specific
highway cleanup and beautification projects.
(c) To contract for the development of a highly visi-
ble antilitter campaign which shall at a minimum:
1. Identify groups that habitually litter.
2. Design appropriate advertising to promote
proper disposal of litter by groups that habitually litter.
3. Foster public awareness of the litter problem in
this state and the litter prevention program.
4. Develop educational programs and materials to
promote proper disposal of litter.
5. Use talent, equipment or expertise donated from
the private sector for producing multimedia materials.
(d) To make and execute contracts necessary to the
exercise of its powers, including interagency agree-
ments.
(e) To engage in the planning of a litter prevention
program.
(f) To conduct, direct, encourage, coordinate, and
organize a continuous program of public education relat-
ing to litter prevention.
(g) To review, upon request, all plans and activities
pertinent to reducing litter and littering and to coordi-
nate these activities with the various levels of govern-
ment as well as other local organizations.
(h) To coordinate with state and local organizations
to market programs promoting litter prevention and to
facilitate the exchange of such programs between local
organizations through annual conferences.
(i) To make available to elementary and secondary
schools and other public forums educational programs
and materials to promote proper disposal of litter.
(j) To develop and implement statewide incentive
programs designed to motivate individual citizens, local
organizations, local governments, and other groups
interested in participating in litter prevention program
activities.
(k) To provide grants to local governments and non-
profit organizations to be used to implement litter pre-
vention programs through education and broad-based
citizen involvement at the community level. Except as
specifically appropriated, such grants may provide up to
one-half of the first year costs to initiate and operate
such programs, or $25,000, whichever is less. Such
grants shall be awarded on a priority basis with appli-
cants requesting funding for the establishment of local
litter prevention systems receiving first priority.
(I) To monitor the effectiveness of the litter preven-
tion program on an annual basis and to prepare an
annual report of operations that includes the results of
such monitoring. The annual report shall be submitted
to the Governor, the President of the Senate, and the
Speaker of the House of Representatives no later than
February 1 of each yaar, beginning on February 1,1990.
(5) The department shall place signs discouraging
litter at all off-ramps of the interstate highway system in
the state. The department shall place other highway
signs as necessary to discourage littering through use
of the antilitter program developed by the commission.
Hlftory.—a. 55. cfi. 88-130: •- 1. eft. 89-37; a. 2. ch. 89-296.
'Not#.—R©oeai®d effective Octooer 1. 1998. by •. 2. cn. 89-296. and tcftoautod
lor rove* pursuant to i. 11.611.
403.4132 Litter pickup and removal.—The Florida
Youth Conservation Corps and local governments are
encouraged to initiate programs to supplement the
existing litter removal program for public places and
highway systems operated by the Department of Trans-
portation. To the extent that funds are available from the
department for litter pickup and removal programs
beyond those annually available to the Department of
Corrections, priority shall be given to contracting for
supplemental litter removal programs that use youth
employment programs.
Hlatory.—s. S8. c#v 88-130.
403.4135 Litter receptacles.—
(1) DEFINITIONS.—As used in this section "litter"
and 'vessel" have the same meanings as provided in s.
403.413.
(2) RECEPTACLES REQUIRED—All ports, terminal
facilities, boatyards, marinas, and other commercial
facilities which house vessels and from which vessels
disembark shall provide or ensure the availability of litter
receptacles of sufficient size and capacity to accommo-
date the litter and other waste materials generated on
board the vessels using its facilities, except for large
quantities of spoiled or damaged cargos not usually dis-
charged by a ship. The Department of Environmental
Regulation may enforce violations of this section pursu-
ant to ss. 403.121 and 403.131.
Hlttory.—i. 13. eft. 09-175: • 18. cf). 91-286
403.414 Environmental award program.—
(1) The department shall administer an environmen-
tal award program to recognize outstanding efforts in
the protection, conservation, or restoration of the air,
water, or other natural resources of the state by agen-
cies, municipalities, counties, and other governmental
units; private organizations, institutions, and industries;
the communications media; and individuals.
33
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(2) Awards may be approved by the secretary in the
following areas:
(a) Water resources and quality.
(b) Air quality.
(c) Solid and hazardous waste management.
(d) Communications through any media.
(3) The department shall adopt rules to govern
administration of the program. An agency, municipality,
county, or other governmental unit; a private organiza-
tion, institution, or industry; the communications media:
or an individual may submit a nomination lor an award
to the department at any time. A nomination must be
submitted on a form adopted by the department and
must include information required by the department to
consider that nomination.
(4) The department may accept money from any
public agency or other source to be used for the environ-
mental award program.
History-—ss. 1.2.3.4.5.6.cn. 74-60:«. 81, eft 79-65;». 264. ch. 81-2». 1.35.
crv 91-305.
403.415 Motor vehicle noise.—
(1) SHORT TITLE.—This act shall be known and
may be cited as the "Florida Motor Vehicle Noise Preven-
tion and Control Act o< 1974.*
(2)(a) LEGISLATIVE INTENT—The intent of the Leg-
islature is to implement the state constitutional mandate
of s. 7, Art. II of the State Constitution to improve the
quality of life in the state by limiting the noise of new
motor vehicles sold in the state and the noise of motor
vehicles used on the highways of the state.
(b) It is also the intent of the Legislature to recognize
the proposed United States Environmental Protection
Act Noise Commission Standards Regulations for
medium and heavy-duty trucks as being the most com-
prehensive available and in the best interest of Florida's
citizenry and, further, that such regulation shall preempt
all state standards not identical to such regulation.
(3) DEFINITIONS.—The following words and
phrases when used in this section shall have the mean-
ings respectively assigned to them in this subsection,
except where the context otherwise requires:
(a) "dB A* means the composite abbreviation lor
A-weighted sound level, and the unit of sound level, the
decibel.
(b) "Gross combination weight rating" or "GCWR"
means the value specified by the manufacturer as the
loaded weight of a combination vehicle.
(c) "Gross vehicle weight rating' or "GVWR" means
the value specified by the manufacturer as the loaded
weight of a single vehicle.
(d) "Motor vehicle" means any vehicle which is self-
propelled and any vehicle which is propelled by electric
power obtained from overhead trolley wires, but not
operated upon rails.
(e) "Motorcycle" means any motor vehicle having a
seat or saddle for the use of the rider and designed to
travel on not more than three wheels in contact with the
ground, but excluding a tractor or a moped.
(f) "Moped* means any vehicle with pedals to permit
propulsion by human power, having a seat or saddle for
the use of the rider and designed to travel on not more
than three wheels, with a motor rated not in excess of
2 brake horsepower and not capable of propelling the
vehicle at a speed greater than 30 miles per hour on level
ground, and with a power-drive system that functions
directly or automatically without clutching or shifting
gears by the operator after the drive system is engaged.
If an internal combustion engine is used, the displace-
ment may not exceed 50 cubic centimeters.
(g) "Sound level" means the A-weighted sound pres-
sure level measured with fast response using an instru-
ment complying with the specification for sound level
meters of the American National Standards Institute.
Inc., or its successor bodies, except that only
A-weighting and fast dynamic response need be pro-
vided.
(h) "Vehicle" means any device in, upon, or by which
any person or property is or may be transported or
drawn upon a highway, except devices moved by
human power or used exclusively upon stationary rails
or tracks.
(i) "Department" means the Department of Environ-
mental Regulation.
(4) NEW VEHICLE NOISE LIMITS.—No person shall
sell, offer for sale, or lease a new motor vehicle that pro-
duces a maximum sound level exceeding the following
limits at a distance of 50 feet from the center of the lane
of travel under test procedures established under sub-
section (5).
(a) For motorcycles:
Date ol manufacture Sound level limit
From January 1, 1973,
to December 31, 1974 86 dB A
On or after January 1, 1975 83 dB A
(b) For any motor vehicle with a GVWR over 10,000
pounds, for any school bus, and for any multipurpose
passenger vehicle, which is defined as a motor vehicle
with motive power designed to carry 10 persons or less
and constructed either on a truck chassis or with special
features for occasional off-road operation:
Date of manufacture Sound level limit
From January 1, 1973,
to December 31, 1976 86 dB A
On or after January 1, 1977 83 dB A
(5) TEST PROCEDURES.—The test procedures 1or
determining compliance with this section shall be estab-
lished by regulation of the Department of Environmental
Regulation and in cooperation with the Department of
Highway Safety and Motor Vehicles in substantial con-
formance with applicable standards and recommended
practices established by the Society of Automotive
Engineers, Inc., or its successor bodies, and the Ameri-
can National Standards Institute, Inc., or its successor
bodies, for the measurement of motor vehicle sound lev-
els. Regulations establishing these test procedures shall
be promulgated no later than December 1, 1974.
(6) CERTIFICATION.—The manufacturer, distribu-
tor. importer, or designated agent thereof shall file a writ-
ten certificate with the department stating that the spe-
cific makes and models of motor vehicles described
thereon comply with the provisions of this section. No
new motor vehicle shall be sold, offered for sale, or
leased unless such certificate has been filed.
34
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F.S. 1991 ENVIRONMENTAL CONTROL Ch. 403
(7) NOTIFICATION of CERTIFICATION. —The
department shall notify the Department of Highway
Safety and Motor Vehicles of all makes and models of
motor vehicles for which valid certificates of compliance
with the provisions of this section are filed.
(8) REPLACEMENT EQUIPMENT.—
(a) No person shall sell or offer for sale for use as a
pari of the equipment of a motor vehicle any exhaust
muffler, intake muffler, or other noise abatement device
which, when installed, will permit the vehicle to be oper-
ated in a manner that the emitted sound level of the vehi-
cle is increased above that emitted by the vehicle as
originally manufactured and determined by the test pro-
cedures for new motor vehicle sound levels established
under this section.
(b) The manufacturer, distributor, or importer, or
designated agent thereof, shall file a written certificate
with the department that his products sold within this
state comply with the requirements of this section for
their intended applications.
(9) OPERATING VEHICLE NOISE MEASUREMENTS.
The department shall establish, with the cooperation of
the Department of Highway Safety and Motor Vehicles,
measurement procedures for determining compliance of
operating vehicles with the noise limits of s. 316.293(2).
The department shall advise the Department of Highway
Safety and Motor Vehicles on technical aspects of motor
vehicle noise enforcement regulations, assist in the
training of enforcement officers, and administer a
sound-level meter loan program for local enforcement
agencies.
(10) ENACTMENT OF LOCAL ORDINANCES LIM-
ITED.—The provisions of this section sl".all be applicable
and uniform throughout this state and in all political sub-
divisions and municipalities therein, and no local author-
ity shall enact or enforce any ordinance on a matter cov-
ered by this section unless expressly authorized. How-
ever, this subsection shall not prevent any local author-
ity from enacting an ordinance when such enactment is
necessary to vest jurisdiction of violation of this section
in the local court.
History.—ss. 1. 2. 3, ch. 74-110; si. 1. 2. ch. 75-59: s. 1. c*i. 76-289: a. 1. cft.
76-280: ¦. 82. eft 79-65; s. 98. ch. 79-164: •. 1. ch. 80-338: s. 1. ch. 62-49; s. 22.
en. 87-161.
403.4151 Exempt motor vehicles.—The provisions
of this act shall not apply to any motor vehicle which is
not required to be licensed under the provisions of chap-
ter 320.
History.—*. 7. eft. 74-110.
403.4153 Federal preemption.—On and after the
date of promulgation of noise emission standards by the
administrator of the United States Environmental Protec-
tion Agency for a class of new motor vehicles as
described in paragraphs 403.415(4)(a), (b), or '(c), the
state sound level limits in effect at that time for that class
of vehicles shall be maintained until the federal stand-
ards become effective.
History.—s. 2. ch. 76*289
'Net#.—A# pee led by s. 22. ch. 07-161.
PART II
ELECTRICAL POWER PLANT SITING
-03.501 Short title.
403.502 Legislative intent.
^03.503 Definitions.
403.504 Department of Environmental Regulation;
powers and duties enumerated.
403.506 Applicability and certification.
403.5063 Notice of intent to file application.
403.5064 Distribution of application; schedules.
403.5065 Appointment of hearing officer.
403 5066 Determination of completeness.
403.5067 Determination of sufficiency.
403.507 Preliminary statements of issues, reports,
and studies.
403.508 Land use and certification proceedings, par-
ties, participants.
403.509 Final disposition of application.
403.5095 Alteration of time limits.
403.510 Superseded laws, regulations, and certifica-
tion power.
403.511 Effect of certification.
403.5115 Notice; costs of proceeding.
403.5116 County and municipal authority unaffected
by ch. 75-22.
403.512 Revocation or suspension of certification.
403.513 Review.
403.514 Enforcement of compliance.
403.515 Availability of information.
403.516 Modification of certification.
403.517 Supplemental applications for sites certified
for ultimate site capacity.
403.518 Fees; disposition.
403.519 Exclusive forum for determination of need.
403.52 Short title.
403.521 Legislative intent.
403.522 Definitions.
403.523 Department of Environmental Regulation;
powers and duties.
403.524 Applicability and certification.
403.525 Appointment of hearing officer.
403.5251 Distribution of application; schedules.
403.5252 Determination of completeness.
403.5253 Determination of sufficiency.
403.526 Preliminary statements of issues, reports,
and studies.
403.527 Notice, proceedings, parties, participants.
403.5271 Alternate corridors.
403.5272 Local governments; informational public
meetings
403.5275 Amendment to the application.
403.528 Alteration of time limits.
403.529 Final disposition of application.
403.531 Effect of certification.
403.5312 Recording of notice of certified corridor
route.
403.5315 Modification of certification.
403.532 Revocation or suspension of certification.
403.533 Enforcement of compliance.
403.536 Superseded laws, regulations, and certifica-
tion power.
403.5365 Fees; disposition,
403.5369 Applicability.
403.537 Determination of need for transmission line;
powers and duties.
35
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
4C3.539 Certification admissible in eminent domain
proceedings; attorney's lees and costs.
403.501 Short title.—Sections 403.501-403.518
snail be known and may be cited as the "Florida Electri-
cal Power Plant Siting Act."
Hiitory — s 1. eft. 73-33: f I. eft. 76-76: s. 1. eft. 90-331.
403.502 Legislative intent.—The Legislature finds
that the present and predicted growth in electric power
demands in this state requires the development of a pro-
cedure for the selection and utilization of sites for electri-
cal generating facilities and the identification of a stale
position with respect to each proposed site. The Legisla-
ture recognizes tna: the selection of sites and the rout-
ing of associated transmission lines will have a signifi-
cant impact upon the welfare of the population, the loca-
tion and growth of industry, and the use of the natural
resources of the state. The Legislature finds that the effi-
ciency of the permit application and review process at
both the state and local level would be improved with
the implementation of a process whereby a permit appli-
cation would be centrally coordinated and all permit
decisions could be reviewed on the basis of standards
and recommendations of the deciding agencies. It is the
policy of this state that, while recognizing the pressing
need for increased power generation facilities, the state
shall ensure through available and reasonable methods
that the location and operation of electrical power plants
will produce minimal adverse effects on human health,
the environment, the ecology of the land and its wildlife,
and the ecology of state waters and their aquatic life and
will not unduly conflict with the goals established by the
applicable local comprehensive plans. It is the intent to
seek courses of action that will fully balance the increas-
ing demands for electrical power plant location and
operation with the broad interests of the public. Such
action will be based on these premises:
(1) To assure the citizens of Florida that operation
safeguards are technically sufficient for their welfare
and protection.
(2) To effect a reasonable balance between the
need for the facility and the environmental impact result-
ing from construction and operation of the facility,
including air and water quality, fish and wildlife, and the
water resources and other natural resources of the state.
(3) To meet the need for electrical energy as estab-
lished pursuant to s. 403.519.
History.—t 1. eft 73-33: ». 2. eft. 90-331.
403.503 Definitions.—As used in this act:
(1) "Act" means the Florida Electrical Power Plant
Siting Act.
(2) "Agency," as the context requires, means an offi-
cial, officer, commission, authority, council, committee,
department, division, bureau, board, section, or other
unit or entity of government, including a regional or local
governmental entity.
(3) "Amendment" means a material change in the
information provided by the applicant to the application
for certification made after the initial application filing.
(4) "Applicant" means any electric utility which
applies for certification pursuant to the provisions of this
act.
(5) "Application" means the documents required by
the department to be filed lo initiate a certification pro-
ceeding and shall include the documents necessary for
the department to render a decision on any permit
required pursuant to any federally delegated or
approved permit program.
(6) "Board" means the Governor and Cabinet sitting
as the Siting Board.
(7) "Certification" means the written order of the
board approving an application in whole or with such
changes or conditions as the board may deem appropri-
ate.
(8) "Completeness" means that the aDplication has
addressed all applicable sections of the prescnbec
application format, but does not mean that those sec-
tions are sufficient in comprenensiveness of data or m
quality of information provided.
(9) "Corridor" means the proposed area within which
an associated linear facility right-of-way is to be
located. The width of the corridor proposed for certifica-
tion as an associated facility, at the option of the appli-
cant, may be the width of the right-of-way or a wider
boundary, not to exceed a width of 1 mile. The area
within the corridor in which a right-of-way may be
located may be further restricted by a cl edition of certifi-
cation. After all property interests required for the right-
of-way have been acquired by the applicant, the bound-
aries of the area certified shall narrow to only that land
within the boundaries of the right-of-way.
(10) "Department" means the Department of Environ-
mental Regulation.
(11) " Designated hearing officer" means the hearing
officer assigned by the Division of Administrative Hear-
ings pursuant to chapter 120 to conduct the hearings
required by this act.
(12) "Electrical power plant" means, for the purpose
of certification, any steam or solar electrical generating
facility using any process or fuel, including nuclear mate-
rials, and includes associated facilities which directly
support the construction and operation of the electrical
power plant and those associated transmission lines
which connect the electrical power plant to an existing
transmission network or rights-of-way to which the
applicant intends to connect, except that this term does
not include any steam or solar electrical generating facil-
ity of less than 75 megawatts in capacity unless the
applicant for such a facility elects to apply for certifica-
tion under this act. An associated transmission line may
include, at the applicant's option, any proposed terminal
or intermediate substations or substation expansions
connected to the associated transmission line.
(13) "Electric utility" means cities and towns, coun-
ties, public utility districts, regulated electric companies,
electric cooperatives, and joint operating agencies, or
combinations thereof, engaged in, or authorized to
engage in. the business of generating, transmitting, or
distributing electric energy.
(14) 'Federally delegated or approved permit pro-
gram" means any environmental regulatory program
approved by an agency of the Federal Government so
as to authorize the department to administer and issue
licenses pursuant to federal law, including, but not lim-
ited to, new source review and prevention of significant
36
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
deterioration permits under the Clean Air Act (42 U.S.C.
s. 7401 et sea.), permits under ss. 402 and 404 of the
Clean Water Act (33 U.S.C. s. 1251 et seq.), and permits
under the Resource Conservation and Recovery Act (42
U.S.C. s. 6901 et seq.).
(15) "License" means a franchise, permit, certification,
registration, charter, comprehensive plan amendment,
development order or permit as defined in chapters 153
and 380, or similar form of authorization required by law,
including permits issued under federally delegated or
approved permit programs, but it does not include a
license required primarily for revenue purposes when
issuance of the license i i merely a ministerial act.
(16) "Local government* means a municipality or
county in the jurisdiction of which the electrical power
plant is proposed to be located.
(17) "Modification" means any change in the certifica-
tion order after issuance, including a change in the con-
ditions of certification.
(18) "Nonprocedural requirements of agencies"
means any agency's regulatory requirements estab-
lished by statute, rule, ordinance, or comprehensive
plan, excluding any provisions prescribing forms, fees,
procedures, or time limits for the review or processing
of information submitted to demonstrate compliance
with such regulatory requirements.
(19) "Notice of intent" means that notice which is filed
with the department on behalf of an applicant prior to
submission of an application pursuant to this act and
which notifies the department of an intent to file an appli-
cation.
(20) 'Person* means an individual, jartnership, joint
venture, private or public corporation, association, firm,
public service company, political subdivision, municipal
corporation, government agency, public utility district, or
any other entity, public or private, however organized.
(21) "Preliminary statement of issues" means a listing
and explanation of those issues within the agency's
jurisdiction which are of major concern to the agency in
relation to the proposed electrical power plant.
(22) 'Public Service Commission" or "commission"
means the agency created pursuant to chapter 350.
(23) "Regional planning council" means a regional
planning council as defined in s. 186.503(4) in the juris-
diction of which the electrical power plant is proposed
to be located.
(24) "Right-of-way" means land necessary for the
construction and maintenance of a connected associ-
ated linear facility, such as a railroad line, pipeline, or
transmission line. The typical width of the right-of-way
shall be identified in the application. The right-of-way
shall be located within the certified corridor and shall be
identified by the applicant subsequent to certification in
documents filed with the department prior to construc-
tion.
(25) "Site" means any proposed location wherein an
electrical power plant, or an electrical power plant alter-
ation or addition resulting in an increase in generating
capacity, will be located, including offshore sites within
state jurisdiction.
<26) "State comprehensive plan" means that plan set
forth in chapter 187.
(27) 'Sufficiency" means that the application is not
only complete but that all sections are sufficient in the
comprehensiveness of data or in the quality cf informa-
tion provided to allow the department to determine
whether the application provides the reviewing agencies
adequate information to prepare the reports required by
s. 403.507.
(28) "Water management district" means a water man-
agement district, created pursuant to chapter 373, in the
jurisdiction of which the electrical power plant is pro-
posed to be located.
Hltwry.—s. 1. ch. 73-33: 9. l. ch. 76-76: s. 1. ch. 79-76; s. 3. ch. 8»-131: s. 14,
ch. 86-173. ». 22. ch. 86-186. s. 3. ch. 90-331.
403.504 Department of Environmental Regulation;
powers and duties enumerated.—The Department of
Environmental Regulation shall have the following pow-
ers and duties in relation to this act:
(1) To adopt, promulgate, or amend reasonable
rules to implement the provisions of this act, including
rules setting forth environmental precautions to be fol-
lowed in relation to the location and operation of electri-
cal power plants.
(2) To prescribe the form and content of the public
notices and the notice of intent and the form, content,
and necessary supporting documentation and studies
to be prepared by the applicant for electrical power
plant site certification applications.
(3) To receive applications for electrical power plant
site certifications and to determine the completeness
and sufficiency thereof.
(4) To make, or contract for, studies of electrical
power plant site certification applications.
(5) To administer the processing of applications for
electric power plant site certifications and to ensure that
the applications are processed as expeditiously as pos-
sible.
(6) To require such fees as allowed by this act.
(7) To conduct studies and prepare a written analy-
sis under s. 403.507.
(8) To prescribe the means for monitoring the
effects arising from the construction and operation of
electrical power plants to assure continued compliance
with terms of the certification.
(9) To notify all affected agencies of the filing of a
notice of intent within 15 days after receipt of the notice.
(10) To issue, simultaneously with the electrical
power plant certification, any license required pursuant
to any federally delegated or approved permit program.
Hlttory.—». 1. ch. 73-33: 5. 1. ch. 76-76. s. 1. eft. 77-174; ». 132, ch. 79-190: s.
4. ch. 81-131: •. 35. ch. 61-167: t. 3S. ch. 83-SS; s. 23. ch. 86-166: s. 4. ch. 90-331.
403.506 Applicability and certification.—
(1) The provisions of this act shall apply to any elec-
trical power plant as defined herein, except that the pro-
visions of this act shall not apply to any electrical power
plant or steam generating plant of less than 75 mega-
watts in capacity or to any substation to be constructed
as part of an associated transmission line unless the
applicant has elected to apply for certification of such
plant or substation under this act. No construction of any
new electrical power plant or expansion in steam gener-
ating capacity of any existing electrical power plant may
be undertaken after October 1, 1973, without first
37
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
obtaining certification in the manner as herein provided,
except tnat this act shall not apply to any such electrical
power plant which is presently operating or under con-
struction or which has, upon the effective date of chap-
ter 73-33, Laws of Florida, applied for a permit or certifi-
cation under requirements in force prior to the effective
date of such act.
(2) Except as provided in the certification, modifica-
tion of nonnuclear fuels, internal related hardware, or
operating conditions not in conflict with certification
which increase the electrical output of a unit to no
greater capacity than the maximum operating capacity
of the existing generator shall not constitute an alter-
ation or addition to generating capacity which requires
certification pursuant to this act.
(3) The application for any related department
license which is required pursuant to any federally dele-
gated or approved permit program shall be processed
within the time periods allowed by this act. in lieu of
those specified in s. 120.60.
History.—« 1. ch. 73-33: •. 3. ch. 76-76: •. 2. ch. 79-76; s. 5. ch. 61-131: •. 15.
ch. 86-173: t. 24. cft. 86-166: ». 5. ch. 90-331.
403.5063 Notice of intent to file application.—
(1) To expedite the processing of the application
which may be filed subsequently, the applicant for a pro-
posed power plant may file a notice of intent to file an
application with the department.
(2) The department shall establish, by rule, a proce-
dure by which an applicant, after public notice, may
enter into binding written agreements with the depart-
ment and other affected agencies as to the scope, quan-
tity, and level of information to be provided in the appli-
cation, as well as the methods to be used in providing
such information and the nature of the supporting docu-
ments to be included in the application.
HUtory.—•. 6. ex. 81-131.
403.5064 Distribution of application; schedules.—
(1) Within 7 days after the filing of an application, the
department shall provide to the applicant and the Divi-
sion of Administrative Hearings the names and
addresses of thoie affected or other agencies entitled
to notice and copies of the application and any amend-
ments.
(2) Within 7 days after completeness has been
determined, the department shall prepare a schedule of
dates for submission of statements of issues, determina-
tion of sufficiency, and submittal of final reports from
affected and other agencies and other significant dates
to be followed during the certification process, including
dates for filing notices of appearance to be a party pur-
suant to s. 403.508(4), This schedule shall be timely pro-
vided by the department to the applicant, the hearing
officer, all agencies identified pursuant to subsection
(1), and all parties.
(3) Within 7 days after completeness has been
determined, the applicant shall distribute copies of the
application to all agencies identified by the department
pursuant to subsection (1). Copies of changes and
amendments to the application shall be timely distrib-
uted by the applicant to all affected agencies and par-
ties.
Htttofy.—» 6. eh. 90-331.
403.5065 Appointment of hearing officer.—Within
7 days after receipt of an aoolication, whether complete
or not, the aepartment shall request the Division of
Administrative Hearings to designate a hearing officer to
conduct the hearings required by this act. The division
director shall designate a hearing officer within 7 days
after receipt of the request from the department. In des-
ignating a hearing officer for this purpose, the division
director shall, whenever practicable, assign a hearing
officer who has had prior experience or training in electri-
cal power plant site certification proceedings. Upon
being advised that a hearing officer has been appointed,
the department shall immediately file a copy of the appli-
cation and all supporting documents with the desig-
nated hearing officer, who shall docket the application.
History.—s. 4. ch. 76-76: I. i. ch. 77-174. $. 7, ch. 81-131: s. 7, c.*v 90-351.
403.5066 Determination of completeness.—Within
15 days after receipt of an application, the department
shall file a statement with the Division of Administrative
Hearings and with the applicant declaring its position
with regard to the completeness, not the sufficiency, of
the application.
(1) If the department declares the application to be
incomplete, the applicant, within 15 days after the filing
of the statement by the department, shall file with the
Division of Administrative Hearings and with the depart-
ment a statement:
(a) Agreeing with the statement of the department
and withdrawing the application;
(b) Agreeing with the statement of the department
and agreeing to amend the application without with-
drawing it. The time schedules referencing a complete
application under this act shall not commence until the
application is determined complete; or
(c) Contesting the statement of the department.
(2) If the applicant contests the determination by the
department that an application is incomplete, the hear-
ing officer shall schedule a hearing on the statement of
completeness. The hearing shall be held as expedi-
tiously as possible, but not later than 30 days after the
filing of the statement by the department. The hearing
officer shall render a decision within 10 days after the
hearing.
(a) If the hearing officer determines that the applica-
tion was not complete as filed, the applicant shall with-
draw the application or make such additional submittals
as necessary to complete it. The time schedules refer-
encing a complete application under this act shall not
commence until the application is determined complete.
(b) If the hearing officer determines that the applica-
tion was complete at the time it was filed, the time
schedules referencing a complete application under this
act shall commence upon such determination.
B. ch. 90-331. .
403.5067 Determination of sufficiency.—Within 45
days after the distribution of the complete application or
amendment, the department shall file a statement with
the Division of Administrative Hearings and with the
applicant declaring its position with regard to the suffi-
ciency of the application or amendment. The depart-
ment's statement shall be based upon consultation with
the affected agencies, which shall submit to the depart-
38
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
ment recommendations on the application's sufficiency
within 30 days alter distribution of the complete applica-
tion.
(1) II the department declares the application or
amendment insufficient, the applicant may withdraw the
application or amendment. If the applicant declines to
withdraw the application or amendment, the applicant
may. at its option:
(a) Within 40 days after the department filed its
statement of insufficiency or such later date as author-
ized by deparlment rules, file additional information nec-
essary to make the application or amendment sufficient.
If the applicant makes its application or amendment suf-
ficient within this time period, the time schedules under
this act shall not be tolled by the department's state-
ment of insufficiency:
(b) Advise the department and the f aaring officer
that the information necessary to make the application
or amendment sufficient cannot be supplied within the
time period authorized in paragraph (a). The time sched-
ules under this acf shall be tolled from the date of the
notice of insufficiency until the application or amend-
ment is determined sufficient; or
(c) Contest the statement of insufficiency by filing a
request for hearing with the hearing officer within 15
days after the filing of the statement of insufficiency. If
a hearing is requested by the applicant, all time sched-
ules under this act shall be tolled as of the department's
statement of insufficiency, pending the hearing officer's
decision concerning the dispute. A hearing shall be held
no later than 30 days after the filing of the statement by
the department, and a decision shall t"? rendered within
10 days after the hearing.
(2)(a) If the hearing officer determines, contrary to
the department, that an application or amendment is
sufficient, all time schedules under this act shall resume
as of the date ol the hearing officer's determination.
(b) If the hearing officer agrees that the application
is insufficient, all time schedules under this act shall
remain tolled until the applicant files additional informa-
tion and the application or amendment is determined
sufficient by the department or the hearing officer.
(3) If. within 30 days after receipt of the additional
information submitted pursuant to paragraph (1)(a),
paragraph (l)(b), or paragraph (2)(b), based upon the
recommendations of the affected agencies, the depart-
ment determines that the additional information sup-
plied by an applicant does not render the application or
amendment sufficient, the applicant may exercise any
of the options specified in subsection (1) as often as
may be necessary to resolve the dispute.
History.—s. 9. ch. 90-33'.
403.507 Preliminary statements of issues, reports,
and studies.—
(1) Each affected agency identified in paragraph
(2)(a) shall submit a preliminary statement of issues to
the deparlment and the applicant no later than 60 days
after the distribution of the complete application. The
failure to raise an issue in this statement shall not pre-
clude the issue from being raised in the agency's report.
(2)(a) The following agencies shall prepare reports
as provided below and shall submit them to the depart-
ment and the applicant within 150 days after distribution
of the complete application:
1. The Department of Community Affairs snail ore-
pare a report containing recommendations which
address the impact upon the public of the proposed
electrical power plant, based on the degree to which the
electrical power plant is consistent with the applicable
portions of the state comprehensive plan and other such
matters within its jurisdiction. The Department of Com-
munity Affairs may also comment on the consistency of
the proposed electrical power plant with applicable
comprehensive regional policy plans or local compre-
hensive plans and land development regulations.
2. The Public Service Commission shall prepare a
report as to the present and future need for the electrical
generating capacity to be supplied by the proposed
electrical power plant. The report shall include the com-
mission's determination pursuant to s. 403.519 ana may
include the commission's comments with respect to any
other matters within its jurisdiction.
3. The water management district shall prepare a
report as to matters within its jurisdiction.
4. Each local government in whose jurisdiction the
proposed electrical power plant is to be located shall
prepare a report as to the consistency of the proposed
electrical power plant with all applicable local ordi-
nances. regulations, standards, or criteria that apply to
the proposed electrical power plant, including adopted
local comprehensive plans, land development regula-
tions, and any applicable local environmental regula-
tions adopted pursuant to s. 403.182 or by other means.
5. The Department of Natural Resources shall pre-
pare a report as to matters within its jurisdiction.
6. The Game and Fresh Water Fish Commission
shall prepare a report as to matters within its jurisdiction.
7. The regional planning council shall prepare a
report containing recommendations that address the
impact upon the public of the proposed electrical power
plant, based on the degree to which the electrical power
plant is consistent with the applicable provisions of the
comprehensive regional policy plan adopted pursuant to
chapter 186 and other matters within its jurisdiction.
8. Any other agency, if requested by the depart-
ment, shall also perform studies or prepare reports as
to matters within that agency's jurisdiction which may
potentially be affected by the proposed electrical power
plant.
(b) As needed to verify or supplement the studies
made by the applicant in support of the application, it
shall be the duty of the department to conduct, or con-
tract for, studies of the proposed electrical power plant
and site, including, but not limited to, the following,
which shall be completed no later than 210 days after
the complete application is filed with the department:
1. Cooling system requirements.
2. Construction and operational safeguards.
3. Proximity to transportation systems.
4. Soil and foundation conditions.
5. Impact on suitable present and projected water
supplies for this and other competing uses.
6. Impact on surrounding land uses.
7. Accessibility to transmission corridors.
39
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
8. Environmental impacts.
9. necuirements applicable under any federally del-
egated cr approved permit program.
(c) Each report described in paragraphs (a) and (b)
shall contain all information on variances, exemptions,
exceptions, or other relief which may be required by s.
403.511(2) and any proposed conditions of certification
on matters within the jurisdiction of such agency. For
each condition proposed by an agency in its report, the
agency shall list the specific statute, rule, or ordinance
wnicn authorizes the proposed condition.
(d) The agencies shall initiate the activities required
by 'his section no later than 30 days after the complete
application is distributed. The agencies shall keep the
applicant and the department informed as to the prog-
ress of the studies and any issues raised thereby.
(3) The department shall prepare a written analysis,
which shall be filed with the designated hearing officer
and served on all parties no later than 240 days after the
complete application is filed with the department, but no
later than 60 days prior to the hearing, and which shall
include:
(a) A statement indicating whether the proposed
electrical power plant and proposed ultimate site capac-
ity will be in compliance with the rules of the depart-
ment.
(b) Copies of the studies and reports required by
this section and s. 403.519.
(c) The comments received by the department from
any other agency or person.
(d) The recommendation of the department as to the
disposition of the application, of variances, exemptions,
exceptions, or other relief identified by any party, and of
any proposed conditions of certification which the
department believes should be imposed.
(e) A recommendation of the department regarding
disposition of the application and any license required
pursuant to a federally delegated or approved permit
program.
(4) Except when good cause is shown, the failure of
any agency to submit a preliminary statement of issues
or a report, or to submit its preliminary statement of
issues or report within the allowed time, shall not be
grounds for the alteration of any time limitation in this
act. Neither the failure to submit a preliminary statement
of issues or a report nor the inadequacy of the prelimi-
nary statement of issues or report shall be grounds to
deny or condition certification.
Htttery.—I l. cn. 73-33:1. 5, Ch. 76-76:1 133. ch. 79-190: «. 8. cn. 81-131:1
33. cn. 81--.E3: v 36. cn. 83-SS; ». 2S. cn. 86-186: l. 10. ch. 90-331.
403.508 Land use and certification proceedings,
parties, participants.—
(1) The designated hearing officer shall conduct a
land use hearing in the county of the proposed site
within 90 days after receipt of a complete application for
electrical power plant site certification by the depart-
ment. The place of such hearing shall be as close as
possible to the proposed site.
(2) The sole issue for determination at the land use
hearihg shall be whether or not the proposed site is
consistent and in compliance with existing land use
plans and zoning ordinances. The designated hearing
officer's recommended O'der s^all be issued within 30
aays after completion of the hearing and snail be
reviewed by the boarc within ^5 days after receipt of the
recommended order by the board. If it is determined by
the board that the proposed site does conform with
existing land use plans and zoning ordinances in effect
as of the date of the application, the responsible zoning
or planning authority shall not thereafter change such
land use plans or zoning ordinances so as to affect the
proposed site unless certification is subsequently
denied or withdrawn. If it is determined by the board that
the proposed site does not conform, it shall be the
responsibility of the aDplicant to make the necessary
application for rezomr.g. Should the application for
rezoning be denied, the apDlicant may appeal this deci-
sion to the board, which may, if it determines after notice
and hearing that it is in the public interest to authorize
the use of the land as a site for an electrical power plant,
authorize a variance to the adopted land use plan and
zoning ordinances. In the event a variance is denied, no
further action may be taken on the complete application
by the department until the proposed site conforms to
the adopted land use plan or zoning ordinances.
(3) A certification hearing shall be h. 'd by the desig-
nated hearing officer no later than 300 days after the
complete application is filed with the department: how-
ever, an affirmative determination of need by the PuDlic
Service Commission pursuant to s. 403.519 shall be a
condition precedent to the conduct of the certification
hearing. The certification hearing shall be held at a loca-
tion in proximity to the proposed site. The certification
hearing shall also constitute the sole hearing allowed by
chapter 120 to determine the substantial interest of a
party regarding any required agency license or any
related permit required pursuant to any federally dele-
gated or approved permit program. At the conclusion of
the certification hearing, the designated hearing officer
shall, after consideration of all evidence of record, sub-
mit to the board a recommended order no later than 60
days after the filing of the hearing transcript. In the event
the hearing officer fails to issue a recommended order
within 60 days after the filing of the hearing transcript,
the hearing officer shall submit a report to the board with
a copy to all parties within 60 days after the filing of the
hearing transcript to advise the board of the reason for
the delay in the issuance of the recommended order and
of the date by which the recommended order will be
issued

(4)(a) Parties to the proceeding shall include:
1.
The applicant.
2.
The Public Service Commission.
3.
The Department of Community Affairs.
4.
The Department of Natural Resources.
5.
The Game and Fresh Water Fish Commission.
6.
The water management district.
7.
The department.
8.
The regional planning council.
9.
The local government.
(b)
Any party listed in paragraph (a) other than the
department or the applicant may waive its right to partic-
ipate in these proceedings. If such listed party fails to file
a notice of its intent to be a party on or before the 90th
40
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
day prior to the certification hearing, such party shall be
deemed to have waived its right to be a party.
(c) Upon the filing with the hearing officer of a notice
of intent to be a party at least 15 days prior to the date
ol the land use hearing, the following shall also be par-
ties to the proceeding:
1. Any agency not listed in paragraph (a) as to mat-
ters within its jurisdiction.
2. Any domestic nonprofit corporation or associa-
tion formed, in whole or in part, to promote conservation
or natural beauty; to protect the environment, personal
health, or other biological values: to preserve historical
sites: to promote consumer interests: to represent labor,
commercial, or industrial groups: or to promote compre-
hensive planning or orderly development of the area in
which the proposed electrical power plant is to be
located.
(d) Notwithstanding paragraph (e), failure of an
agency described in subparagraph (c)1. to file a notice
of intent to be a party within the time provided herein
shall constitute a waiver of the right of that agency to
participate as a party in the proceeding.
(e) Other parties may include any person, including
those persons enumerated in paragraph (c) who have
failed to timely file a notice of intent to be a party, whose
substantial interests are affected and being determined
by the proceeding and who timely file a motion to inter-
vene pursuant to chapter 120 and applicable rules. Inter-
vention pursuant to this paragraph may be granted at
the discretion of the designated hearing officer and
upon such conditions as he may prescribe any time prior
to 30 days before the commencement: f the certification
hearing.
(f) Any agency, including those whose properties or
works are being affected pursuant to s. 403.509(4), shall
be made a party upon the request of the department or
the applicant.
(5) When appropriate, any person may be given an
opportunity to present oral or written communications to
the designated hearing officer. If the designated hearing
officer proposes to consider such communications, then
all parties shall be given an opportunity to cross-
examine or challenge or rebut such communications.
(6) The designated hearing officer shall have all
powers and duties granted to hearing officers by chap-
ter 120 and this chapter and by the rules of the depart-
ment and the Administration Commission, including the
authority to resolve disputes over the completeness and
sufficiency of an application for certification.
(7) The order of presentation at the certification hear-
ing, unless otherwise changed by the hearing officer to
ensure the orderly presentation of witnesses and evi-
dence, shall be:
(a) The applicant.
(b) The department.
(c) State agencies.
(d) Regional agencies, including regional planning
councils and water management districts.
(e) Local governments.
(f) Other parties.
Hlitory.—• l. ch. 73-33: «. 6. eft. 76-76; i. 1. ch. 77-174; «. 134. cn. 79-190: s.
9, ch. 81-131;». 36. ch. 81-167; i. 37. ch. S3-SS: s. 26. ch. 86-186; s. 11. cn. 90-331.
403.509 Final disposition of application.—
(1) Within 60 days after receipt of the designated
hearing officer's recommended order, the board shall
act upon the application by written order, approving cer-
tification or denying the issuance of a certificate, in
accordance with the terms of this act, and stating the
reasons for issuance or denial. If the certificate is denied,
the board shall set forth in writing the action the appli-
cant would have to take to secure the board's approval
of the application.
(2) The issues that may be raised in any hearing
before the board shall be limited to those matters raised
in the certification proceeding before the hearing officer
or raised in the recommended order. All parties, or their
representatives, or persons who appear before the
board shall be subject to the provisions of s. 120.66.
(3) Simultaneously with the board's action on the
application, the department shall issue or deny any
license required pursuant to any federally delegated or
approved permit program. The department's decision to
issue or deny the license shall be based upon the record
and recommended order of the certification hearing.
Unless the federally delegated or approved permit pro-
gram provides otherwise, licenses issued by the depart-
ment under this subsection shall be effective for the
term of the certification issued by the board. If renewal
of any license issued by the department pursuant to a
federally delegated or approved permit program is
required, such renewal shall not affect the certification
issued by the board.
(4) In regard to the properties and works of any
agency which is a party to the certification hearing, the
board shall have the authority to decide issues relating
to the use, the connection thereto, or the crossing
thereof, for the electrical power plant and site and to
direct any such agency to execute, within 30 days after
the entry of certification, the necessary license or ease-
ment for such use, connection, or crossing, subject only
to the conditions set forth in such certification.
(5) The issuance or denial of the certification by the
board and the issuance or denial of any related depart-
ment license required pursuant to any federally dele-
gated or approved permit program shall be the final
administrative action required as to that application.
History.—3. 1. ch. 73-33: ». 7. ch. 76-76; •. 141. cn. 77-104: • 27. cn. 86-186
5. 12.cn. 90-331.
403.5095 Alteration of time limits.—Any time limita-
tion in this act may be altered by the designated hearing
officer upon stipulation between the department and the
applicant, unless objected to by any party within 5 days
after notice, or for good cause shown by any party.
History.—*. 0. eft. 76-76: s. 13. ch. 90-331.
403.510 Superseded Iaw9, regulations, and certifi-
cation power.—
(1) If any provision of this act is in conflict with any
other provision, limitation, or restriction under any law,
rule, regulation, or ordinance of this state or any political
subdivision, municipality, or agency, this act shall gov-
ern and control, and such law. rule, regulation, or ordi-
nance shall be deemed superseded for the purposes of
this act.
41
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(2) The slate hereby preempts the regulation and
certification ot electrical power plant sites and electrical
power plants as defined in this act.
(3) The board shall have the power to adopt reason-
able procedural rules to carry out its duties under this
act and to give effect to the legislative intent that this act
is to provide an efficient, simplified, centrally coordi-
nated. one-stop licensing process.
History.—t. I, en. 73-33; ». 9. en. 76-76. >. 14. eft. 90-331.
403.511 Effect of certification.—
(1) Subject to the conditions set forth therein, any
certification signed by the Governor shall constitute the
sole license of the state and any agency as to the
approval of the site and the construction and operation
of the proposed electrical power plant, except for :he
issuance of department licenses required under any fed-
erally delegated or approved permit program and
except as otherwise provided in subsection (4).
(2)(a) The certification shall authorize the applicant
named therein to construct and operate the proposed
electrical power plant, subject only to the conditions of
certification set forth in such certification, and except for
the issuance of department licenses or permits required
under any federally delegated or approved permit pro-
gram.
(b) Except as provided in subsection (4), the certifi-
cation may include conditions which constitute vari-
ances, exemptions, or exceptions from nonprocedural
requirements of the department or any agency which
were expressly considered during the proceeding
unless waived by the agency as provided below and
which otherwise would be applicable to the construction
and operation of the proposed electrical power plant. No
variance, exemption, exception, or other relief shall be
granted from a state statute or rule for the protection of
endangered or threatened species, aquatic preserves,
Outstanding National Resource Waters, or Outstanding
Florida Waters or for the disposal of hazardous waste,
except to the extent authorized by the applicable stat-
ute or rule or except upon a finding by the siting board
that the public interests set forth in s. 403.502 in certify-
ing the electrical power plant at the site proposed by the
applicant overrides the public interest protected by the
statute or rule from which relief is sought. Each party
shall notify the applicant and other parties at least 60
days prior to the certification hearing of any nonprocedu-
ral requirements not specifically listed in the application
from which a variance, exemption, exception, or other
relief is necessary in order for the board to certify any
electrical power plant proposed for certification. Failure
of such notification by an agency shall be treated as a
waiver from nonprocedural requirements of the depart-
ment or any other agency. However, no variance shall
be granted from standards or regulations of the depart-
ment applicable under any federally delegated or
approved permit program, except as expressly allowed
in such program.
(3) The certification shall be in lieu of any license,
permit, certificate, or similar document required by any
agency pursuant to. but not limited to. chapter 125.
chapter 161, chapter 163, chapter 166, chapter 186,
chapter 253, chapter 298, chapter 370, chapter 373,
chapter 376. chapter 380. chapter 381. chapter 387,
chapter 403. chapter 404, the Florida Transportation
Code, or 33 U.S.C. s. 1341.
(4) This act shall not affect in any way the ratemak-
ing powers of the Pubiic Service Commission under
chapter 366; nor shall this act in any way affect the rignt
of any local government to charge appropriate fees or
require that construction be in compliance with applica-
ble building construction codes.
(5)(a) An electrical power plant certified pursuant to
this act shall comply with rules adopted by the depart-
ment subsequent to the issuance of the certification
which prescribe new or stricter criteria, to the extent that
the rules are applicable to eleclrical power plants.
Except when express variances, exceptions, exemp-
tions, or other relief have been granted, subsequently
adopted rules which prescribe new or stricter criteria
shall operate as automatic modifications to certifica-
tions.
(b) Upon written notification to the department, any
holder of a certification issued pursuant to this act may
choose to operate the certified electrical power plant in
compliance with any rule subsequently adopted by the
department which prescribes criteria more lenient than
the criteria required by the terms and conditions in the
certification which are not site-specific.
(c) No term or condition of certification shall be inter-
preted to preclude the postcertification exercise by any
party of whatever procedural rights it may have under
chapter 120, including those related to rulemaking pro-
ceedings. This subsection shall apply to previously
issued certifications.
History.—t. t. eft. 73-33: • 2. eft. 74-170: s. 10. eft. 76-76: ». 1. eft. 77-174: s.
S3, eft. 79-65: s. 28. eft. 66-186: s. IS. eft. 90-331.
403.5115 Notice; costs of proceeding.—
(1) The following notices are to be published by the
applicant:
(a) A notice of the filing of a notice of intent under
s. 403.5063, which shall be published within 21 days
after the filing of the notice. The notice shall be pub-
lished as specified by subsection (2), except that the
newspaper notice shall be one-fourth page in size in a
standard size newspaper or one-half page in size in a
tabloid size newspaper.
(b) A notice of filing of the application, which shall be
published as specified in subsection (2), within 15 days
after the application has been determined complete.
Such notice shall give notice of the provisions of s.
403.511(1) and (2).
(c) Notice of the land use hearing, which shall be
published as specified in subsection (2), no later than 45
days before the hearing.
(d) Notice of the certification hearing, which shall be
published as specified in subsection (2), no later than 45
days before the hearing.
(e) Notice of modification when required by the
department, based on whether the requested modifica-
tion of certification will significantly increase impacts to
the environment or the public. Such notice shall be pub-
lished as specified under subsection (2):
1. Within 21 days after receipt of a request for modi-
fication, except that the newspaper notice shall be of a
42
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
size as directed by the department commensurate with
the scope of the modification.
2. II a hearing is to be conducted in response to the
request for modification, then notice shall be provided
as specified in paragraph (d).
(f) Notice of a supplemental application, which shall
be published as follows:
1. Notice of receipt of the supplemental application
shall be published as specified in paragraph (b).
2. Notice of the certification hearing shall be pub-
lished as specified in paragraph (d).
(2) Notices provided by the applicant shall be pub-
lished in newspapers of general circulation within the
county or counties in which the proposed electrical
power plant will be located. The newspaper notices shall
be at least one-half page in size in a standard size news-
paper or a full page in a tabloid size ne- /spaper and
'shall be published in a section of the newspaper other
than the legal notices section. These notices shall
include a map generally depicting the project and all
associated facilities corridors. A newspaper of general
circulation shall be the newspaper which has the largest
daily circulation in that county and has its principal office
in that county. If the newspaper with the largest daily cir-
culation has its principal office outside the county, the
notices shall appear in both the newspaper having the
largest circulation in that county and in a newspaper
authorized to publish legal notices in that county.
(3) All notices published by the applicant shall be
paid for by the applicant and shall be in addition to the
application fee.
(4) The department shall:
(a) Publish in the Florida Admir strative Weekly
notices of the filing of the notice of intent: of the filing
of the application; of the land use hearing; of the certifi-
cation hearing; of the hearing before the board; and of
stipulations, proposed agency action, or petitions for
modification; and
(b) Provide copies of those notices to any persons
who have requested to be placed on the departmental
mailing list for this purpose.
(5) The applicant shall pay those expenses and
costs associated with the conduct of the hearings and
the recording and transcription of the proceedings.
Hlitory.—t. 16. cn. 90-331.
1 Note.—The words 'snail be' we*e marled t>y trw editors.
403.5116 County and municipal authority unaf-
fected by ch. 75-22.—Except as provided in ss.
403.510 and 403.511, nothing in chapter 75-22, Laws of
Florida, shall be construed to have altered the authority
of county and municipal governments as provided by
law.
Hlttory.— j. 22. CM. 75-22. •. 17. eft. 90-331.
Note-—Forme* i. 4Q3.5i 11.
403.512 Revocation or suspension of certification.
Any certification may be revoked or suspended:
(1) For any material false statement in the applica-
tion or in the supplemental or additional statements of
fact or studies required of the applicant when a true
answer would have warranted the board's refusal to rec-
ommend a certification in the first instance.
(2) For failure to comply with the terms or conditions
of the certification.
(3) For violation of the provisions of this act or regula-
tions or orders issued hereunder.
History.—j. 1. cri 73—33: e. n. crt 76-76. a 18. cn. 90-331.
403.513 Review.—Proceedings under this act shall
be subject to judicial review as provided in chapter 120.
Separate appeals of the certification order issued by the
board and of any department permit issued pursuant to
a federally delegated or approved permit program shall
be consolidated for purposes of judicial review.
Hlttory.— >. I. cn. 73-33: •. 12. cn. 76-76: a. 29. cn. 86-106; ». 19. cn. 90-331.
403.514 Enforcement of compliance.—Failure to
obtain a certification, or to comply with the conditions
thereof, or to comply with this act shall constitute a viola-
tion of chapter 403.
Hlitory.—5. I. cn. 73-33; ». 12. cn. 76-76: s. 20. cn. 90-331.
403.515 Availability of information.—The depart-
ment shall make available fcr public inspection and
copying during regular office hours, at the expense of
any person requesting copies, any information filed or
submitted pursuant to this act.
Mlitory.—s. l. eft. 73-33.
403.516 Modification of certification.—
(1) A certification may be modified after issuance in
any one of the following ways:
(a) The board may delegate to the department the
authority to modify specific conditions in the certifica-
tion.
(b) The department may modify the terms and con-
ditions of the certification if no party to the certification
hearing objects in writing to such modification within 45
days after notice by mail to such party's last address of
record, and if no other person whose substantial inter-
ests will be affected by the modification objects in writ-
ing within 30 days after issuance of public notice. If
objections are raised, the applicant may file a petition for
modification pursuant to paragraph (c).
(c) A petition for modification may be filed by the
applicant or the department setting forth:
1. The proposed modification,
2. The factual reasons asserted for the modifica-
tion, and
3. The anticipated effects of the proposed modifi-
cation on the applicant, the public, and the environment.
The petition for modification shall be filed with the
department and the Division of Administrative Hearings.
(d) As required by s. 403.511(5).
(2) Petitions filed pursuant to paragraph (1)(c) shall
be disposed of in the same manner as an application,
but with time periods established by the hearing officer
commensurate with the significance of the modification
requested.
(3) Any agreement or modification under this section
must be in accordance with the terms of this act. No
modification to a certification shall be granted that con-
stitutes a variance from standards or regulations of the
department applicable under any federally delegated or
approved permit program, except as expressly allowed
in such program.
Hlttory.—«. 13. cn. 76-76: s. 10, cn. 81-131; t. 30. cn. 86-186: i. 21. eft. 90-331.
43
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
403.517 Supplemental applications for sites certi-
fied for ultimate site capacity.—
(1)(a) The department shall adopt rules governing
the processing of supplemental applications for certifi-
cation of the construction and operation of electrical
power plants to be located at sites which have been pre-
viously certified for an ultimate site capacity pursuant to
this act. Supplemental applications shall be limited to
electrical power plants using the fuel type previously
certified for that site. The rules adopted pursuant to this
section shall include provisions for:
1. Prompt appointment of a designated hearing offi-
cer.
2. The contents of the supplemental application.
3. Resolution of disputes as to the completeness
and sufficiency of supplemental applications by the des-
ignated hearing officer.
4. Public notice of the filing of the supplemental
applications.
5. Time limits for prompt processing of supplemen-
tal applications.
6. Final disoosition by the board within 215 days of
the filing of a complete supplemental application.
(b) The time limits shall not exceed any time limita-
tion governing the review of initial applications for site
certification pursuant to this act. it being the legislative
intent to provide shorter time limitations for the process-
ing of supplemental applications for electrical power
plants to be constructed and operated at sites which
have been previously certified for an ultimate site capac-
ity.
(c) Any time limitation in this section or in rules
adopted pursuant to this section may be altered by the
designated hearing officer upon stipulation between the
department and the applicant, unless objected to by
any party within 5 days after notice, or for good cause
shown by any party. The parties to the proceeding shall
adhere to the provisions of chapter 120 and this act in
considering and processing such supplemental applica-
tions.
(2) Supplemental applications shall be reviewed as
provided in ss. 403.507-403.511, except that the time
limits provided in this section shall apply to such supple-
mental applications.
(3) The land use hearing requirements of s.
403.508( 1) and (2) shall not be applicable to the process-
ing of supplemental applications pursuant to this section
so long as:
(a) The previously certified ultimate site capacity is
not exceeded; and
(b) The lands required for the construction or opera-
tion of the electrical power plant which is the subject of
the supplemental application are within the boundaries
of the previously certified site.
(4) For the purposes of this act, the term "ultimate
site capacity' means the maximum generating capacity
for a site as certified by the board.
HUtery.—1. 14. ch. 76-76: a. 11. eft. 81-131: «. 34. cft. 81-1®. i. 38. eft. 83-45:
t. 22. eh. 90-331.
403.518 Fees; disposition.—The department shall
charge the applicant the following fees, as appropriate,
which shall be paid into the Operating Trust Fund:
(1) A fee for a notice of intent pursuant to 's.
403.5065, in the amount of $2,50C, to be submitted to
the departmenl at the time of filing of a notice of intent.
The notice-of-intent fee shall be used and disbursed in
the same manner as the application fee.
(2) An application fee, which shall not exceed
$150,000. The fee shall be fixed by rule on a sliding scale
related to the size, type, ultimate site capacity, increase
in generating capacity proposed by the application or
the number and size of local governments in whose juris-
diction the electrical power plant is located.
(a) Sixty percent of the fee shall go to the depart-
ment to cover any costs associated with reviewing and
acting upon the application, to cover any field services
associated with monitoring construction and operation
of the facility, and to cover the costs of the public
notices published by the department.
(b) Upon written request with proper itemized
accounting within 90 days after final agency action by
the board or withdrawal of the application, the depart-
ment shall reimburse the Department of Community
Affairs, the Department of Natural Resources, the Game
and Fresh Water Fish Commission, and any water man-
agement district created pursuant *o chapter 373.
regional planning council, and local government in the
jurisdiction of which the proposed electrical power plant
is to be located, and any other agency from which the
department requests special studies pursuant to s.
403.507(2)(a)8. Such reimbursement shall be authorized
for tne preparation of any studies required of the agen-
cies by this act, and for agency travel and per diem to
attend any hearing held pursuant to this act. and for
local governments to participate in the proceedings. In
the event the amount available for allocation is insuffi-
cient to provide for complete reimbursement to the
agencies, reimbursement shall be on a prorated basis.
(c) If any sums are remaining, the department shall
retain them for its use in the same manner as is other-
wise authorized by this act; provided, however, that if
the certification application is withdrawn, the remaining
sums shall be refunded to the applicant within 90 days
after withdrawal.
(3) A certification modification fee, which shall not
exceed $15,000. The fee shall be submitted to the
department with a formal petition for modification to the
department pursuant to s. 403.516. This fee shall be
established, disbursed, and processed in the same
manner as the application fee in subsection (2).
(4) A supplemental application fee, not to exceed
$50,000, to cover all reasonable expenses and costs of
the review, processing, and proceedings of a supple-
mental application. This fee shall be established, dis-
bursed, and processed in the same manner as the certi-
fication application fee in subsection (2).
Mlttwy.—t. 23. eh. 90-331
'Not#.—Th* ot*d »ctk>n contorts no reference to • f*e for a rtofca of int«ni.
403.519 Exclusive forum for determination of need.
On request by an applicant or on its own motion, the
commission shall begin a proceeding to determine the
need for an electrical power plant subject to the Florida
Electrical Power Plant Siting Act. The commission shall
publish a notice of the proceeding in a newspaper of
44
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
general circulation in each county in which the proposed
electrical power plant will be located. The notice shall be
at least one-quarter of a page and published at least 45
days prior :o the scheduled date for the proceeding. The
commission shall be the sole forum for the determination
of this matter, which accordingly shall not be raised in
any other forum or in the review of proceedings in such
other forum. In making its determination, the commis-
sion shall take into account the need for electric system
reliability and integrity, the need for adequate electricity
at a reasonable cost, and whether the proposed plant
is the most cost-effective alternative available. The com-
mission shall also expressly consider the conservation
measures taken by or reasonably available to the appli-
cant or its members which might mitigate the need for
tne proposed plant and other matters within its jurisdic-
tion which it deems relevant. The commissi -n's determi-
nation of need for an electrical power plant shall create
a presumption of public need and necessity and shall
serve as the commission's report required by s.
403.507(2)(a)2. An order entered pursuant to this sec-
tion constitutes final agency action.
Hlttwy.—». 5. cft. 80-65: s. 24. ch. 90-331.
403.52 Short title.—Sections 403.52-403.5365 may
be cited as the Transmission Line Siting Act."
History.—9. I. en. 80-65. >. 25. cn. 90-33).
403.521 Legislative intent.—The legislative intent of
this act is to establish a centralized and coordinated per-
mitting process for the location of transmission line corri-
dors and the construction and maintenance of transmis-
sion lines, which necessarily involve- several broad
interests of the public addressed through the subject
matter jurisdiction of several agencies. The Legislature
recognizes that transmission lines will have an effect
upon the welfare of the population. Recognizing the
need to ensure electric power system reliability and
integrity, and in order to meet electrical energy needs
in an orderly and timely fashion, the centralized and
coordinated permitting process established by this act
is intended to further the legislative goal of ensuring
through available and reasonable methods that the loca-
tion of transmission line corridors and the construction
and maintenance of transmission lines produce minimal
adverse effects on the environment and public health,
safety, and welfare while not unduly conflicting with the
goals established by the applicable local comprehen-
sive plan. It is the intent of this act to fully balance the
need for transmission lines with the broad interests of
the public in order to effect a reasonable balance
between the need for the facility as a means of providing
abundant low-cost electrical energy and the impact on
the public and the environment resulting from the loca-
tion of the transmission line corridor and the construc-
tion and maintenance of the transmission lines. The Leg-
islature intends that the provisions of chapter 120 apply
to this act and to proceedings pursuant to it except as
otherwise expressly exempted by other provisions of
this act.
Hlitory.—». l. en. 80-65: >. t eh. 83-222: s. 26. cn. 90-331.
403.522 Definitions.—As used in this act:
(1) "Act* means the Transmission Line Siting Act.
(2) "Agency," as the context requires, means an offi-
cial. officer, commission, authority, council, committee,
department, division, bureau, board, section, or other
unit or entity of government, including a county, munici-
pality, or other regional or local governmental entity.
(3) "Amendment" means a material change in infor-
mation provided by the applicant to the application for
certification made after the ir.inal application filing.
(4) "Applicant" means any electric utility which
applies for certification pursuant to the provisions of this
act.
(5) "Application" means the documents required by
the department to be filed to initiate a certification pro-
ceeding. An electric utility may file a comprehensive
application encompassing all or a pan cf one or more
proposed transmission lines.
(6) "Board" means the Governor and Cabinet sitting
as the siting board.
(7) "Certification" means the approval by the board
of a corridor proper for certification pursuant to subsec-
tion (10) and the construction and maintenance of trans-
mission lines within such corridor with such changes or
conditions as the board deems appropriate. Certification
shall be evidenced by a written order of the board.
(8) "Commission" means the Florida Public Service
Commission.
(9) "Completeness" means that the application has
addressed all applicable sections of the prescribed
application format, but does not mean that those sec-
tions are sufficient in comprehensiveness of data or in
quality of information provided.
(10) "Corridor" means the proposed area within which
a transmission line right-of-way is to be located. The
width of the corridor proposed for certification by an
applicant or other party, at the option of the applicant,
may be the width of the transmission line right-of-way,
or a wider boundary, not to exceed a width of 1 mile. The
area within the corridor in which a right-of-way may be
located may be further restricted by a condition of certifi-
cation. After all property interests required for the trans-
mission line right-of-way have been acquired by the
applicant, the boundaries of the area certified shall nar-
row to only that land within the boundaries of the trans-
mission line right-of-way. The corridors proper for certi-
fication shall be those addressed in the application, in
amendments to the application filed pursuant to s.
403.5275, and in notices of acceptance of proposed
alternate corridors filed by an applicant and the depart-
ment pursuant to s. 403.5271 for which sufficient infor-
mation for the preparation of agency supplemental
reports was filed.
(11) "Department" means the Department of Environ-
mental Regulation.
(12) "Electric utility" means cities and towns, coun-
ties, public utility districts, regulated electric companies,
electric cooperatives, and joint operating agencies, or
combinations thereof, engaged in, or authorized to
engage in, the business of generating, transmitting, or
distributing electric energy.
(13) "License" means a franchise, permit, certification,
registration, charter, comprehensive plan amendment,
development order or permit as defined in chapters 163
and 380, or similar forrti of authorization required by law,
45
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
but it does not include a license required primarily for
revenue purposes when issuance of the license is
merely a ministerial act.
(14) "Local government" means a municipality or
county in the jurisdiction of which the project is pro-
posed to be located.
(15) "Modification" means any change in the certifica-
tion order after issuance, including a change in the con-
ditions of certification.
(16) "Nonprocedural requirements of agencies'
means any agency's regulatory requirements estab-
lished by statute, rule, ordinance, or comprehensive
plan, excluding any provisions prescribing forms, fees,
procedures, or time limits for the review or processing
of information submitted to demonstrate compliance
with such regulatory requirements.
(17) "Person* means an individual, partnership, joint
venture, private or public corporation, association, firm,
public service company, political subdivision, municipal
corporation, government agency, public utility district, or
any other entity, public or private, however organized.
(18) "Preliminary statement of issues" means a listing
and explanation of those issues within the agency's
jurisdiction which are of major concern to the agency in
relation to the proposed electrical transmission line corri-
dor.
(19) "Regional planning council" means a regional
planning council as defined in s. 186.503(4) in the juris-
diction of which the project is proposed to be located.
(20) "Sufficiency" means that the application is not
only complete but that all sections are adequate in the
comprehensiveness of data and in the quality of informa-
tion provided to allow the department to determine
whether the application provides the reviewing agencies
adequate information to prepare the reports authorized
by s. 403.526.
(21) "Transmission line" means any electrical trans-
mission line extending from, but not including, an exist-
ing or proposed substation or power plant to, but not
including, an existing or proposed transmission network
or rights-of-way or substation to which the applicant
intends to connect which defines the end of the pro-
posed project and which is designed to operate at 230
kilovolts or more. The starting point and ending point of
a transmission line must be specifically defined by the
applicant and must be verified by the commission in its
determination of need. A transmission line includes
structures and maintenance and access roads that need
to be constructed for the project to become operational.
The transmission line may include, at the applicant's
option, any proposed terminal or intermediate substa-
tions or substation expansions necessary to serve the
transmission line.
(22) "Transmission line right-of-way" means land
necessary for the construction and maintenance of a
transmission line. The typical width of the right-of-way
shall be identified in the application. The right-of-way
shall be located within the certified corridor and shall be
identified by the applicant subsequent to certification in
documents filed with the department prior to construc-
tion.
(23) "Water management district" means a water man-
agement district created pursuant to chapter 373 in the
jurisdiction of which the project is proposed to be
located.
History.—s. I. cn 80-65. s. 3. cn 63-222; 5. $4. c.1 85—81. >. 27. cn. SO-33i.
403.523 Department ol Environmental Regulation;
powers and duties.—The department shall have the fol-
lowing powers and duties:
(1) To adopt or amend reasonable procedural rules
to implement the provisions of this act and to adopt or
amend rules to implement the provisions of subsection
(10).
(2) To prescribe the form and content of the public
notices and the form, content, and necessary support-
ing documentation, and any required studies, for certifi-
cation applications. Ail such data and studies shall be
related to the jurisdiction of the agencies relevant to the
application.
(3) To receive applications for transmission line and
corridor certifications and initially determine the com-
pleteness and sufficiency thereof.
(4) To make or contract for studies of certification
applications. All such studies shall be related to the juris-
diction of the agencies relevant to the application. For
studies in areas outside the jurisdiction of the depart-
ment and in the jurisdiction of another agency, the
department may initiate such studies, but only with the
consent of such agency.
(5) To administer the processing of applications for
certification and ensure that the applications are pro-
cessed as expeditiously as possible.
(6) To require such fees as allowed by this act.
(7) To prepare a report and written analysis as
required by s. 403.526.
(8) To prescribe the means for monitoring the
effects arising from the location of the transmission line
corridor and the construction and maintenance of the
transmission lines to assure continued compliance with
the terms of the certification.
(9) To make a determination of acceptability of any
alternate corridor proposed for consideration pursuant
to s. 403.5271.
(10) To set requirements that reasonably protect the
public health and welfare from the electric and magnetic
fields of transmission lines for which an application is
filed after the effective date of this act.
(11) To present rebuttal evidence on any issue prop-
erly raised at the certification hearing.
Hlttory.—r l. eft. 60-65: • 37. ch, 81-167: i 265. cn. 81-259: $. 39. cn. 83-55:
r 4. ch. 83-222: i 6. ch. 8S-173; t. 55, cn. 0&-186: ». 28, ch. 90-331.
403.524 Applicability and certification.—
(1) The provisions of this act apply to each transmis-
sion line, except a transmission line certified pursuant to
the Florida Electrical Power Plant Siting Act.
(2) Except as provided in subsection (1), no con-
struction of any transmission line may be undertaken
without first obtaining certification under this act, but the
provisions of this act do not apply to:
(a) Transmission lines for which development
approval has been obtained pursuant to chapter 380.
(b) Transmission lines which have been exempted
by a binding letter of interpretation issued under s.
380.06(4), or in which the Department ol Community
Affairs or its predecessor agency has determined the
46
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F.S. 1991
environmental CONTROL
Ch. 403
utility to have vested development rights within the
meaning of s. 380.05(18) or s. 380.06(20).
(c) Transmission line development in which all con-
struction is limited to established rights-of-way. Estab-
lished rights-of-way include such rights-of-way for
roads, highways, railroads, gas, water, oil, electricity, or
sewage and any other public purpose rights-of-way.
Except for transmission line rights-of-way, established
rights-of-way include rights-of-way created before or
after October 1, 1983. For transmission line rights-of-
way. established rights-of-way include rights-of-way
created before October 1, 1983.
(d) Transmission lines which are less than 15 miles
in length or which do not cross a county line, unless the
applicant has elected to apply for certification under the
act.
(3) The exemption of a transmission li;.e cinder this
act does no; constitute an exemption for the transmis-
sion line from other applicable permitting processes
under other provisions of law or local government ordi-
nances.
(4) A utility shall notify the department in writing,
prior to the start of construction, of its intent to construct
a transmission line exempted pursuant to this section.
Such notice shall be only for information purposes, and
no action by the department shall be required pursuant
to such notice.
History.—i. i. en. 80-65. s. 14. ch. BI-131: t. 38, eft. 81-167: ». 40. ch. 83-55:
j. S. cn. 83-222. >. 49, eh. 85-55: ». 29. ch. 90-331.
403.525 Appointment of hearing officer.—Within 7
days after receipt of an application, whether complete
or not, the department shall reques'. the Division of
Administrative Hearings to designate a hearing officer to
conduct the hearings required by this act. The division
director shall designate a hearing officer to conduct the
hearings required by this act within 7 days after receipt
of the request from the department. Whenever practica-
ble, the division director shall assign a hearing officer
who has had prior experience or training in this type of
certification proceeding. Upon being advised that a
hearing officer has been designated, the department
shall immediately file a copy of the application and all
supporting documents with the hearing officer, who
shall docket the application.
Hl«t
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(a) Within 15 days after the department filed its
statement of insufficiency, file additional information
necessary to make the application or amendment suffi-
cient. if the applicant makes its application or amend-
ment sufficient within this time period, the time sched-
ules under this act shall not be tolled by the depart-
ment's statement of insufficiency;
(b) Advise the department and the hearing officer
that the information necessary to make the application
or amendment sufficient cannot be supplied within 15
days after the notice of the insufficiency. The time
schedules under this act shall be tolled from the date of
the statement of insufficiency until the application or
amendment is determined sufficient; or
(c) Contest the notice of insufficiency by filing a
request for hearing with the hearing officer within 15
days after the filing of the statement of insufficiency. If
a hearing is requested by the applicant, all time sched-
ules under this act shall be tolled as of the date of the
department's statement of insufficiency, pending the
hearing officer's decision concerning the dispute. A
hearing shall be held no later than 30 days after the filing
of the statement by the department, and a decision shall
be rendered within 10 days after the hearing, unless oth-
erwise agreed by the department and the applicant.
(2)(a) If the hearing officer determines, contrary to
the department, that an application or amendment is
sufficient, all time schedules under this act shall resume
as of the date of the hearing officer's determination.
(b) If the hearing officer agrees that the application
is insufficient, all time schedules under this act shall
remain toiled until the applicant files additional informa-
tion and the application or amendment is determined
sufficient by the department or the hearing officer.
(3) If, within 30 days after receipt of the additional
information submitted pursuant to paragraph (1)(a),
paragraph (1)(b), or paragraph (2)(b), based upon the
recommendations of the affected agencies, the depart-
ment determines that the additional information sup-
plied by an applicant does not render the application or
amendment sufficient, the applicant may exercise any
of the options specified in subsection (1) as often as
may be necessary to resolve the dispute.
Hlttory.—«. 33. eft. 90-331.
403.526 Preliminary statements of issues, reports,
and studies.—
(1) Each affected agency which received an applica-
tion in accordance with s. 403.5251(3) shall submit a pre-
liminary statement of issues to the department and the
applicant no later than 60 days after distribution of the
complete application. Such statements of issues shall
be made available to each local government for use as
information for public meetings pursuant to s. 403.5272.
The failure to raise an issue in this preliminary statement
of issues shall not preclude the issue from being raised
in the agency's report.
(2)(a) The affected agencies shall prepare reports
as provided below and shall submit them to the depart-
ment and the applicant within 90 days after distribution
of the complete application;
1. The department shall prepare a report as to the
impact of each proposed transmission line or corridor as
it relates to matters within its jurisdiction.
2. The Department of Natural Resources shall pre-
pare a report as to the impact of each proposed trans-
mission line or corridor on matters within its jurisdiction.
3. Each water management district in the jurisdic-
tion of which a proposed transmission line or corridor is
to be located shall prepare a report as to the impact on
water resources and other matters within its jurisdiction.
4. The Department of Community Affairs shall pre-
pare a report containing recommendations which
address the impact upon the public of the proposed
transmission line or corridor, based on the degree to
which the proposed transmission line or corridor is
consistent with the applicable portions of the state com-
prehensive plan and otner matters within its jurisaiction.
The Department of Community Affairs may also com-
ment on the consistency of the proposed transmission
line or corridor with applicable comprehensive regional
policy plans or local comprehensive plans and land
development regulations.
5. The Game and Fresh Water Fish Commission
shall prepare a report as to the impact of each proposed
transmission line or corridor on fish and wildlife
resources and other matters within its jurisdiction.
6. Each local government shall prep "re a report as
to the impact of each proposed transmission line or cor-
ridor on matters within its jurisdiction, including the con-
sistency of the proposed transmission line or corridor
with all applicable local ordinances, regulations, stand-
ards, or criteria that apply to the proposed transmission
line or corridor, including local comprehensive plans,
zoning regulations, land development regulations, and
any applicable local environmental regulations adopted
pursuant to s. 403.182 or by other means. No change by
the responsible local government or local agency in local
comprehensive plans, zoning ordinances, or other regu-
lations made after the date required for the filing of the
local government's report required by this section shall
be applicable to the certification of the proposed trans-
mission line or corridor unless the certification is denied
or the application is withdrawn.
7. Each regional planning council shall present a
report containing recommendations that address the
impact upon the public of the proposed transmission
line or corridor based on the degree to which the trans-
mission line or corridor is consistent with the applicable
provisions of the comprehensive regional policy plan
adopted pursuant to chapter 186 and other impacts of
each proposed transmission line or corridor on matters
within its jurisdiction.
(b) Each report shall contain the information on vari-
ances required by s. 403.531(2) and proposed condi-
tions of certification on matters within the jurisdiction of
each agency. For each condition proposed by an
agency, the agency shall list the specific statute, rule,
or ordinance, as applicable, which authorizes the pro-
posed condition.
(c) Each reviewing agency shall initiate the activities
required by this section no later than 15 days after the
complete application is distributed. Each agency shall
keep the applicant and the department informed as to
the progress of its studies and any issues raised
thereby.
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(3) The department shall prepare a written analysis
which contains a compilation of agency reports and
summaries of the material contained therein which shall
be filed with tne nearing officer and served on all parties
no later than 135 days after the complete application has
been distributed to the affected agencies, and which
shall include:
(a) The studies and reports required by this section
and s. 403.537.
(b) Comments received from any other agency or
person.
(c) The recommendation of the department as to the
disposition of the application, of variances, exemptions,
exceptions, or other relief identified by any party, and of
any proposed conditions of certification which the
department believes should be imposed.
(4) The failure of any agency to submit a preliminary
statement of issues or a report, or to submit its prelimi-
nary statement of issues or report within the allowed
time, shall not be grounds for the alteration of any time
limitation in this act pursuant to s. 403.528. Neither the
failure to submit a preliminary statement of issues or a
report nor the inadequacy of the preliminary statement
of issues or report shall be grounds to deny or condition
certification.
HIitofY'-s. l. eft. 00—65. $, 39. en. 81-167; s. 41. cn. 03-55; s. 7. cn. 83-222: 3.
X ch. 90-331.
403.527 Notice, proceedings, parties, participants.
(1)(a) No later than 15 days after an application has
been determined complete, the applicant shall arrange
for publication of a notice of the application and of the
proceedings required by this act. Such notice shall give
notice of the provisions of s. 403.531(1) and (2).
(b) The applicant shall arrange for publication of a
notice of the certification hearing and other public hear-
ings provided for in this section and notice of the dead-
line for filing of notice of intent to be a party. Such
notices shall be published at least 80 days before the
date set for the hearing.
(c) The applicant shall arrange for publication of a
reminder notice in the newspapers specified in para-
graph (d) no more than 10 days prior to the certification
hearing, reminding the public of the date and location of
the hearing. This notice shall not constitute a point of
entry for intervention in the proceeding.
(d) Notices to be published by the applicant shall be
published in newspapers of general circulation within
counties crossed by the transmission line corridors
proper for certification. The required newspaper notices,
other than the reminder notice, shall be one-half page
in size in a standard size newspaper or a full page in a
tabloid size newspaper and published in a section of the
newspaper other than the legal notices section. These
notices shall include a map generally depicting all trans-
mission corridors proper for certification. A newspaper
of general circulation shall be the newspaper within a
county crossed by a transmission line corridor proper for
certification which newspaper has the largest daily cir-
culation in that county and has its principal office in that
county. If the newspaper with the largest daily circula-
tion has its prigcipal office outside the county, then the
notices shall appear in both the newspaper having the
largest circulation in that county and in a newspaper
authorized to publish legal notices in that county.
(e) The department shall publish in the Florida
Administrative Weekly notices of the application; of the
certification hearing; of the hearing be'ore the board;
and of stipulations, proposed agency action, or petitions
for modification.
(f) The department shall adopt rules specifying the
content of notices required by this section. All notices
published by the applicant shall be paid for by the appli-
cant and shall be in addition to the application fee.
(2) No later than 185 days after receipt of a complete
application by the department, the hearing officer shall
conduct a certification hearing pursuant to s. 120.57 at
a central location in proximity to the proposed transmis-
sion line or corridor. One oublic hearing where members
of the public who arc not parties to the certification hear-
ing may testify shall be held within the boundaries of
each county, at the option of any local government. The
local government shall notify the hearing officer and all
parties not later than 50 days after the receipt of a com-
plete application as to whether the local government
wishes to have such a public hearing. The local govern-
ment shall be responsible for determining the location of
the public hearing. Within 5 days of such notification, the
hearing officer shall determine the date of such public
hearing, which shall be held before or during the certifi-
cation hearing. In the event two or more local govern-
ments within one county request such a public hearing,
the hearing shall be consolidated so that only one such
public hearing is held in any county. The location of a
consolidated hearing shall be determined by the hearing
officer. If a local government does not request a public
hearing within 50 days after the receipt of a complete
application, persons residing within the jurisdiction of
such local government may testify at the public hearing
portion of the certification hearing.
(3)(a) At the conclusion of the certification hearing,
the hearing officer shall, after consideration of all evi-
dence of record, issue a recommended order disposing
of the application no later than 60 days after the tran-
script of the certification hearing and the public hearings
is filed with the Division of Administrative Hearings.
(b) In the event the hearing officer fails to issue a rec-
ommended order within 60 days after the filing of the
hearing transcript, the hearing officer shall submit a
report to the board with a copy to all parties within 60
days after the filing of the hearing transcript to advise
the board of the reason for the delay in the issuance of
the recommended order and of the date by which the
recommended order will be issued.
(4)(a) Parties to the proceeding shall be;
1. The applicant.
2. The department.
3. The commission.
4. The Department of Community Affairs.
5. The Department of Natural Resources.
6. The Game and Fresh Water Fish Commission.
7. Each water management district in the jurisdic-
tion of which the proposed transmission line or corridor
is to be located.
8. The local government.
9. The regional planning council.
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(b) Any party listed in paragraph (a), other than the
deDanment or the applicant, may waive its right to par-
ticipate in these proceedings. If any listed party fails to
file a notice of its intent to be a party on or before the
30th day prior to the certification hearing, such party
shall be deemed to have waived its right to be a party
unless its participation would not prejudice the rights of
any party to the proceeding.
(c) Notwithstanding the provisions of chapter 120 to
ine contrary, upon the filing with the hearing officer of
a notice of intent to be a party by an agency or corpora-
tion or association described in subparagraphs 1. and
2. or a petition for intervention by a person described in
subparagraph 3. no later than 30 days prior to the date
set for the certification hearing, the following snail also
be parties to the proceeding.
1. Any agency not listed in paragraph (a) as to mat-
ters within its jurisdiction.
2. Any domestic nonprofit corporation or associa-
tion formed, in whole or in part, to promote conservation
of natural beauty; to protect the environment, personal
health, or other biological values; to preserve historical
sites; to promote consumer interests; to represent labor,
commercial, or industrial groups; or to promote compre-
hensive planning or orderly development of the area in
which the proposed transmission line or corridor is to be
located.
3. Any person whose substantial interests are
affected and being determined by the proceeding.
(d) Any agency whose properties or works may be
affected shall be made a party upon the request of the
agency or any party to this proceeding.
(5) When appropriate, any person may be given an
opportunity to present oral or written communications to
the hearing officer. If the hearing officer proposes to con-
sider such communications, ail parties shall be given an
opportunity to cross-examine or challenge or rebut such
communications.
(6) The hearing officer shall have all powers and
duties granted to hearing officers by chapter 120 and by
the laws and rules of the department, including the
authority to resolve disputes over the completeness or
sufficiency of an application for certification.
(7) The order of presentation at the certification hear-
ing, unless otherwise changed by the hearing officer to
ensure the orderly presentation of witnesses and evi-
dence. shall be:
(a) The applicant.
(b) The department.
(c) State agencies.
(d) Regional agencies, including regional planning
councils and water management districts.
(e) Local governments.
(f) Other parties.
(8) The applicant shall pay those expenses and
costs associated with the conduct of the hearings and
the recording and transcription of the proceedings.
History.—». I.eft. 90-65 I 40. ex. 81-167: a. 42, eft. 83-S5: t. B. eft. 83-222: •
SS. eft BS-fll: 1. 35. eft 90-331.
, 403.5271 Alternate corridors.—
(1) No later than 50 days prior to the originally sched-
uled certification hearing, any party may propose alter-
nate transmission line corridor routes for consideration
pursuant to the provisions cf this act.
(a) A notice of any such proposed alternate corridor
shall be filed with the hearing officer, all parties, ana any
local governments in whose jurisdiction the alternate
corridor is proposed. Such filing shall include the most
recent United States Geological Survey 1:24,000 quad-
rangle maps specifically delineating the corridor bound-
aries, a description of the proposed corridor, and a
statement of the reasons the proposed alternate corridor
should be certified.
(b) Within 7 days after receipt of such notice, the
applicant and the department shall file with the hearing
officer and all parties a notice of acceptance or rejection
of a proposed alternate corridor for consideration. If the
alternate corridor is rejected either by the applicant or
the department, the certification hearing and the public
hearings shall be held as scheduled. If both the appli-
cant and the department accept a proposed alternate
corridor for consideration, the certification hearing and
the public hearings shall be reschedulec, if necessary.
If rescheduled, the certification hearing shall be held no
more than 90 days after the previously scheduled certifi-
cation hearing, unless additional time is needed due to
the alternate corridor crossing a local government juris-
diction not previously affected, in which case the
remainder of the schedule listed below shall be appro-
priately adjusted by the hearing officer to allow that local
government to prepare a report pursuant to s.
403.526(2)(a)6.
(c) Notice pursuant to s. 403.527(1)(b) and (c) shall
be published.
(d) Within 25 days after acceptance of an alternate
corridor by the department and the applicant, the party
proposing an alternate corridor shall have the burden of
providing additional data to the agencies listed in s.
403.526 necessary for the preparation of a supplemen-
tary report on the proposed alternate corridor.
(e) If the department determines within 15 days that
this additional data is insufficient, the party proposing
the alternate corridor shall file such additional data that
corrects the insufficiency within 15 days after the filing
of the department s determination. If such additional
data is determined insufficient, such insufficiency of
data shall be deemed a withdrawal of the proposed
alternate corridor. The party proposing an alternate corri-
dor shall have the burden of proof on the certifiability of
the alternate corridor at the certification hearing pursu-
ant to s. 403.529(4). Nothing in this act shall be con-
strued as requiring the applicant or agencies not pro-
posing the alternate corridor to submit data in support
of such alternate corridor.
(f) The agencies listed in s. 403.526 shall file supple-
mentary reports addressing the proposed alternate cor-
ridors no later than 60 days after the additional data is
submitted pursuant to paragraph (e).
(g) The agencies shall submit supplementary notice
pursuant to s. 403.531(2) at the time of filing of their sup-
plemental report.
(h) The department shall prepare a written analysis
consistent with s. 403.526(3) at least 29 days prior to the
rescheduled certification hearing addressing the pro-
posed alternate corridor.
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(2) If the original certification hearing date is res-
cheduled. the rescheduling shall not provide the oppor-
tunity for parties to file additional alternate corridors to
the applicant's proposed corridor or any accepted alter-
nate corridor. However, an amendment to the applica-
tion which changes the alignment of the applicant's pro-
posed corridor shall require rescheduling of the certifica-
tion hearing, if necessary, so as to allow time for a party
to lile alternate corridors to the realigned proposed corri-
dor for which the application has been amended. Any
such alternate corridor proposal shall have the same
starting and ending points as the realigned portion of
the corridor proposed by the applicant's amendment,
provided that the hearing officer for good cause shown
may authorize another starting or ending point in the
area of the applicant's amended corridor.
(3) Notwithstanding the rejection c. a proposed
alternate corridor by the applicant or the department,
any parly may present evidence at the certification hear-
ing to show that a corridor proper for certification does
not satisfy the criteria listed in s. 403.529 or that a
rejected alternate corridor would meet the criteria set
forth in s. 403.529. No evidence shall be admitted at the
certification hearing on any alternate corridor, unless the
alternate corridor was proposed by the filing of a notice
at least 50 days prior to the originally scheduled certifi-
cation hearing pursuant to this section. Rejected alter-
nate corridors shall be considered by the board as pro-
vided in s. 403.529(4) and (5).
(4) If an alternate corridor is accepted by the appli-
cant and the department pursuant to a notice of accept-
ance as provided in this subsection ¦ nd such corridor
is ultimately determined to be the corridor that would
meet the criteria set forth in s. 403.529(4) and (5), the
board shall certify that corridor.
History.—9. 36. en. 90-331.
403.5272 Local governments; informational public
meetings —
(1) Local governments may hold informational public
meetings in addition to the hearings specifically author-
ized by this act on any matter associated with the trans-
mission line proceeding. Such informational public meet-
ings should be held no later than 80 days after the appli-
cation is filed. The purpose of an informational public
meeting is for the local government to further inform the
general public about the transmission line proposed,
obtain comments from the public, and formulate its rec-
ommendation with respect to the proposed transmis-
sion line.
(2) Informational public meetings shall be held solely
at the option of each local government. It is the legisla-
tive intent that local governments attempt to hold such
public meetings. Parties to the proceedings under this
act shall be encouraged to attend; however, no party
shall be required to attend such informational public
hearings.
(3) The failure to hold an informational public meet-
ing or the procedure used for the informational public
meeting shall not be grounds for the alteration of any
time limitation in this act pursuant to s. 403.528 or
grounds to deny or condition certification.
Hlttory.—». 9. eft. 8S-222.
403.5275 Amendment to the application.—
(1) Any amendment made to the application shall be
sent by the applicant to tne nearing officer and to all par-
ties to the proceeding.
(2) Any amendment to the application made prior to
certification shall be disposed of as part of the original
certification proceeding. Amendment of the application
may be considered "good cause" for alteration of time
limits pursuant to s. 403.528.
MUtory.—s. 1. eft. 00-65: «. 10. ch. 63-222: J. 37. ch. 90-331.
403.528 Alteration of time limits.—Any time limita-
tion in this act may be altered by the hearing officer upon
stipulation between the department and the applicant
unless objected to by any party within 5 days after
notice or for good cause shown by any party.
History.—l. cn. 80-65: •. it. cn. 83-222.
403.529 Final disposition of application.—
(1) Within 30 days after receipt of the hearing offi-
cer's recommended order, the board shall act upon the
application by written order, approving in whole, approv-
ing with such conditions as the board deems appropri-
ate, or denying the certification and stating the reasons
for issuance or denial.
(2) The issues that -may be raised in any hearing
before the board shall be limited to matters raised in the
certification proceeding before the hearing officer or
raised in the recommended order. All parties, or their
representatives, or persons who appear before the
board shall be subject to-the provisions of s. 120.66.
(3) If certification is denied, the board shall set forth
in writing the action the applicant would have to take to
secure the approval of the application by the board.
(4) In determining whether an application should be
approved in whole, approved with modifications or con-
ditions, or denied, the board shall consider whether, and
the extent to which, the location of the transmission line
corridor and the construction and maintenance of the
transmission line will:
(a) Ensure electric power system reliability and
integrity;
(b) Meet the electrical energy needs of the state in
an orderly and timely fashion;
(c) Comply with nonprocedural requirements of
agencies;
(d) Be consistent with applicable local government
comprehensive plans: and
(e) Effect a reasonable balance between the need
for the transmission line as a means of providing abun-
dant low-cost electrical energy and the impact upon the
public and the environment resulting from the location
of the transmission line corridor and maintenance of the
transmission lines.
(5)(a) Any transmission line corridor certified by the
board shall meet the criteria of this section. When more
than one transmission line corridor is proper for certifica-
tion pursuant to s. 403.522(10) and meets the criteria of
this section, the board shall certify the transmission line
corridor that has the least adverse impact regarding the
criteria in subsection (4), including costs.
(b) If the board finds that an alternate corridor
rejected pursuant to s. 403.5271 meets the criteria of
subsection (4) and has the least adverse impact regard-
51
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
ing the criteria in subsection (4), including cost, of all cor-
ncors that meet the criteria of subsection (4), then the
board shall deny certification or shall allow the applicant
to submit an amended application to include such corri-
dor.
(c) If the board finds that two or more of the corridors
that comply with the provisions of subsection (4) have
the least adverse impacts regarding the criteria in sub-
section (4), including costs, and that such corridors are
substantially equal in adverse impacts regarding the
criteria in subsection (4), including costs, then the board
shall certify the corridor preferred by the applicant if the
corridor is one proper for certification pursuant to s.
403.522(10).
(6) The issuance or denial of the certification by the
board shall be the final aaministrative action required as
to that application.
Htttory.—i. 1. eft. 80-65: i. 12. eft. 83-222: i. 38. eft. 90-331.
403.531 Effect of certification.—
(1) Subject to the conditions set forth therein, certifi-
cation shall constitute the sole license of the state and
any agency as to the approval of the location of trans-
mission line corridors and the construction and mainte-
nance of transmission lines. The certification shall be
valid for the life of the transmission line, provided that
construction on, or condemnation or acquisition of, the
right-of-way is commenced within 5 years of the date
of certification or such later date as may be authorized
by the board.
(2)(a) The certification shall authorize the applicant
to locate the transmission line corridor and to construct
and maintain the transmission lines subject only to the
conditions of certification set forth in such certification.
(b) The certification may include conditions which
constitute variances and exemptions from nonprocedu-
ral standards or regulations of the department or any
other agency, which were expressly considered during
the proceeding unless waived by the agency as pro-
vided below and which otherwise would be applicable
to the location of the proposed transmission line corridor
or the construction and maintenance of the transmission
lines. Each party shall notify the applicant and other par-
ties at the time scheduled for the filing of the agency
reports of any nonprocedural requirements not specifi-
cally listed in the application from which a variance,
exemption, exception, or other relief is necessary in
order for the board to certify any corridor proposed for
certification. Failure of such notification shall be treated
as a waiver from the nonprocedural requirements of that
agency.
(3) The certification shall be in lieu of any license,
permit, certificate, or similar document required by any
agency pursuant to, but not limited to, chapter 125,
chapter 161, chapter 163, chapter 166, chapter 186,
chapter 253, chapter 258, chapter 298, chapter 370,
chapter 373, chapter 376, chapter 380, chapter 381,
chapter 387, chapter 403, chapter 404, the Florida
Transportation Code, or 33 U.S.C. s. 1341. On certifica-
tion, any license, easement, or other interest in state
lands, except those the title of which is vested in the
Board of Trustees of the Internal Improvement Trust
Fund, shall be issued by the appropriate agency as a
ministerial act. The applicant shall be required to seek
any necessary interest in state lands the title to which
is vested in the Board of Trustees of the Internal
Improvement Trust Fund from the board of trustees
before, during, or after the certification proceeding, and
certification may be made contingent upon issuance of
the appropriate interest in realty. However, neither the
applicant nor any party to the certification proceeding
may directly or indirectly raise or relitigate any matter
which was or could have been an issue in the certifica-
tion proceeding in any proceeding before the Board of
Trustees of the Internal improvement Trust Fund
wherein the applicant is seeking a necessary interest in
state lands, but the information presented in the certifi-
cation proceeding shall be available for review by the
board of trustees and its staff.
(4) This act shall not in any way affect the ratemak-
ing powers of the commission under chapter 366. This
act shall also not in any way affect the right of any local
government to charge appropriate fees or require that
construction be in compliance with the National Electri-
cal Safety Code, as prescribed by the commission.
(5) No term or condition of certification shall be inter-
preted to preclude the postcertification e.- *rcise by any
party of whatever procedural rights it may have under
chapter 120, including those related to rulemaking pro-
ceedings.
Hlttory.—1.1. eh. 80-65: i. 266. eft. 81-259: •. 13. eft. 83-222: i. 39. eft. 90-331.
403.5312 Recording of notice of certified corridor
route.—Within 60 days after certification of a directly
associated transmission line pursuant to ss. 403.501-
403.518 or a transmission line corridor pursuant to ss.
403.52-403.5365, the applicant shall file, in accordance
with s. 28.222, with the clerk of the circuit court for each
county through which the corridor will pass, a notice of
the certified route. The notice shall consist of maps or
aerial photographs in the scale of 1:24,000 which clearly
show the location of the certified route and shall state
that the certification of the corridor will result in the
acquisition of rights-of-way within the corridor. Each
clerk shall record the filing in the official record of the
county for the duration of the certification or until such
time as the applicant certifies to the clerk that all lands
required for the transmission line rights-of-way within
the corridor have been acquired within such county,
whichever is sooner. The recording of this notice shall
not constitute a lien, cloud, or encumbrance on real
property.
HltTory.—t. 12. eft. 81-131: >. 40. ch. 90-331.
403.5315 Modification of certification.—A certifica-
tion may be modified after issuance in any one of the fol-
lowing ways:
(1) The board may delegate to the department the
authority to modify specific conditions in the certifica-
tion.
(2) The department may modify the terms and con-
ditions of the certification if no party objects in writing
to such modification within 45 days after notice by mail
to the last address of record in the certification proceed-
ing, and if no other person whose substantial interests
will be affected by the modification objects in writing
within 30 days after issuance of public notice. If objec-
52
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
tions are raised, the applicant may file a petition lor mod-
ification pursuant to subsection (3).
(3) The applicant or the department may file a peti-
tion for modification with the department and the Divi-
sion of Administrative Hearings setting forth:
(a) The proposed modification;
(b) The factual reasons asserted for the modifica-
tion; and
(c) The anticipated additional environmental efiects
of the proposed modification.
(4) Petitions filed pursuant to subsection (3) shall be
disposed of in the same manner as an application but
with time periods established by the hearing officer
commensurate with the significance of the modification
requested.
History.—a. 1. cn. 80-65: J. 15. cn 83-222: 3. 4i.cn. 90-33' .
403.532 Revocation or suspension o< certification.
Any certification may be revoked or suspended:
(1) For any material false statement in the applica-
tion or in the supplemental or additional statements of
fact or studies required of the applicant when a true
answer would have warranted the board's refusal to rec-
ommend a certification in the first instance.
(2) For failure to comply with the terms or conditions
of the certification.
(3) For violation of the provisions of this act or rules
or orders issued hereunder.
Hiitory.—s. i. civ 80-65.
403.533 Enforcement of compliance.—Failure to
obtain a certification, or to comply with the conditions
thereof, or to comply with this act shall •-onstitute a viola-
tion of chapter 403.
History.—5. 1. ch. 80-65: i. 42. ch. 90-331.
403.536 Superseded laws, regulations, and certifi-
cation power.—
(1) If any provision of this act is in conflict with any
other provision, limitation, or restriction under any law,
rule, regulation, or ordinance of this state or any political
subdivision, municipality, or agency, this act shall con-
trol and such law, rule, regulation, or ordinance shall be
deemed superseded for the purposes of this act.
(2) The state hereby preempts the certification of
transmission lines and transmission line corridors.
(3) The board shall have the power to adopt reason-
able procedural rules to carry out its duties under this
act and to give effect to the legislative intent that this act
provide an efficient, centrally coordinated, one-stop
licensing process.
History.—«. 1,ch. 80-65: » . 43. ch. 90-331.
403.5365 Fees; disposition.—The department shall
charge the applicant the following fees, as appropriate,
which shall be paid into the Operating Trust Fund:
(1) An application fee, which shall be $1,000 for each
mile of the proposed transmission line corridor, plus an
amount not to exceed $50,000, to be fixed by rule on a
sliding scale based on the load-carrying capability and
configuration of the transmission line.
(a) Sixty percent of the fee shall go to the depart-
ment to cover any costs associated with reviewing and
acting upon the application and any costs for field ser-
vices associated with monitoring construction and oper-
ation of the facility.
(b) Upon written request with proper itemized
accounting within 90 days after final agency action by
the board or withdrawal of the application, the depart-
ment shall reimburse the expenses and costs of the
Department of Community Affairs, the Deparlment of
Natural Resources, the Game and Fresh Water Fish
Commission, the water management district, regional
planning council, and local government in the jurisdic-
tion of which the transmission line is to be located. Such
reimbursement shall be authorized for the preparation of
any studies required of the agencies by this act, and for
agency travel and per diem to attend any hearing held
pursuant to this act, and for the local government to par-
ticipate in the proceedings. In the event the amount
available for allocation is insufficient to provide for com-
plete reimbursement to the agencies, reimbursement
shall be on a prorated basis.
(c) If any sums are remaining, the department shall
retain them for its use in the same manner as is other-
wise authorized by this section; provided, however, that
if the certification application is withdrawn, the remain-
ing sums shall be refunded to the applicant within 90
days after withdrawal.
(2) An amendment fee.
(a) If no corridor alignment change is proposed by
the amendment, no amendment fee shall be charged.
(b) If a corridor alignment change is proposed by the
applicant, an additional fee of a minimum of $2,000 and
S750 per mile shall be submitted to the department for
use in accordance with this act.
(c) If an amendment is required to address issues,
including alternate corridors pursuant to s. 403.5271,
raised by the department or other parties, no fee for
such amendment shall be charged.
(3) A certification modification fee.
(a) If no corridor alignment change is proposed by
the applicant, the modification fee shall be $4,000.
(b) If a corridor alignment change is proposed by the
applicant, the fee shall be $1,000 for each mile of realign-
ment plus an amount not to exceed $10,000 to be fixed
by rule on a sliding scale based on the load-carrying
capability and configuration of the transmission line for
use in accordance with subsection (2).
History.—s. *4. eft. 90-331.
403.5369 Applicability.—This act does not apply to
any application for certification of an electrical power
plant or transmission line corridor which has been deter-
mined to be complete prior to July 3,1990. Any applicant
whose application has been determined to be complete
as of July 3, 1990, may elect to have the provisions of
this act apply to that application.
History.—s. 57. ch. 90-331.
403.537 Determination of need for transmission
line; powers and duties.—
(1)(a) Upon request by an applicant or upon its own
motion, the Florida Public Service Commission shall
schedule a public hearing, after notice, to determine the
need for a transmission line regulated by the Transmis-
sion Line Siting Act, ss. 403.52-403.5365. Such notice
shall be published at least 45 days before the date set
53
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
for the hearing ar.z shall be published in at least one-
quarter page size notice in newspapers of general circu-
lation. in the Florida Administrative Weekly, by giving
notice '.o counties and regional planning councils in
whose jurisdiction the transmission line could be placed,
and by giving notice to any persons who have requested
to be placed on the mailing list of the commission for this
purpose. Within 21 days after receipt of a request for
determination by an applicant, the commission shall set
a date for the hearing. The hearing shall be held pursu-
ant to s. 350.01 within 45 days after the filing of the
request, and a decision shall be renaered within 60 days
after such filing.
(b) in the determination of need, the commission
shall take into account the need for electric system reli-
ability and integrity, the need for abundant, low-cost
electrical energy to assure the economic well-being of
the citizens of this state, the appropriate starting and
ending point of the line, and other matters within its juris-
diction deemed relevant to the determination of need.
(c) The determination by the commission of the
need for the transmission line, as defined in s.
403.522(21), is binding on all parties to any certification
proceeding pursuant to the Transmission Line Siting Act
and is a condition precedent to the conduct of the certifi-
cation hearing prescribed therein. An order entered pur-
suant to this section constitutes final agency action.
(2) The commission shall have the following powers
and duties:
(a) To adopt or amend reasonable procedural rules
to implement the provisions of this section.
(b) To prescribe the form, content, and necessary
supporting documentation and the required studies for
the determination of need.
(3) Any time limitation in this section may be altered
by the commission upon stipulation between the com-
mission and the applicant or for good cause shown by
any party.
History.—». 3. eft. 80-65: ». 13. eft. 81-131: «. 19. eft. 83-222: t. *5. eft. 90-331.
403.539 Certification admissible in eminent domain
proceedings; attorney's (ees and costs.—
(1) Certification pursuant to ss. 403.52-403.5365
shall be admissible as evidence of public need and
necessity in proceedings under chapter 73 or chapter
74.
(2) No party may rely on this section or any provision
of chapter 73 or chapter 74 to request the award of attor-
ney's fees or costs incurred as a result of participation
in the certification proceeding.
History.—t. 2. eft. 00-6$: i. 20. ch. 83-222: t. «. en. 90-331.
PART III
INTERSTATE ENVIRONMENTAL
CONTROL COMPACT
403.60 Environmental Control Compact; execution
authorized.
403.60 Environmental Control Compact; execution
authorized.—The Governor on behalf of this state is
hereby authorized to execute a compact, in substan-
tially the following form, with any one or more of the
states of the United States, and the Legislature hereby
signifies in advance its approval and ratification of such
compact:
MEMBER JURISDICTION.—The environmental com-
pact is entered into with all jurisdictions legally joining
therein and enacted into law in the following form:
INTERSTATE ENVIRONMENTAL COMPACT
ARTICLE I
FINDINGS, PURPOSES AND RESERVATIONS OF
POWERS.—
A. Findings.—Signatory states hereby find and
declare:
1. The environment of every state is affected with
local, state, regional and national interests and its pro-
tection, under appropriate arrangements for intergov-
ernmental cooperation, is a public purpose of the
respective signatories.
2. Certain environmental pollution problems tran-
scend state boundaries and thereby become common
to adjacent states requiring cooperative efforts.
3. The environment of each state is subject to the
effective control of the signatories, and coordinated,
cooperative or joint exercise of control measures is in
their common interests.
B. Purposes —The purposes of the signatories in
enacting this compact are:
1. To assist and participate in the national environ-
ment protection programs as set forth in federal legisla-
tion; to promote intergovernmental cooperation for multi-
state action relating to environmental protection through
interstate agreements; and to encourage cooperative
and coordinated environmental protection by the signa-
tories and the Federal Government;
2. To preserve and utilize the functions, powers and
duties of existing state agencies of government to the
maximum extent possible consistent with the purposes
of the compact.
C. Powers of the United States.—
1. Nothing contained in this compact shall impair,
affect or extend the constitutional authority of the United
States.
2. The signatories hereby recognize the power and
right of the Congress of the United States at any time
by any statute expressly enacted for that purpose to
revise the terms and conditions of its consent.
D. Powers of the states.—Nothing contained in this
compact shall impair or extend the constitutional author-
ity of any signatory state, nor shall the police powers of
any signatory state be affected except as expressly pro-
vided in a supplementary agreement under Article IV.
ARTICLE II
SHORT TITLE. DEFINITIONS, PURPOSES AND LIMI-
TATIONS—
A. Short title.—This compact shall be known and
may be cited as the 'Interstate Environmental Compact.'
B. Definitions.—For the purpose of this compact
and of any supplemental or concurring legislation
enacted pursuant or in relation hereto, except as may be
otherwise required by the context:
54
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
1. "State" shall mean any one of the 50 states of the
United States of America, the Commonwealth of Puerto
Rico and the Territory of the Virgin Islands, but shall not
include the District of Columbia.
2. "Interstate environment pollution" shall mean any
pollution of a stream or body of water crossing or mark-
ing a state boundary, interstate air quality control region
designated by an appropriate federal agency or solid
waste collection and disposal district or program involv-
ing the jurisdiction or territories of more than one state.
3. "Government" shall mean the governments of the
United States and the signatory states.
4. "Federal Government" shall mean the govern-
ment of the United States of America and any appropri-
ate department, instrumentality, agency, commission,
bureau, division, branch or other unit thereof, as the
case may be, but shall not include the Dis: ict of Colum-
bia.
5. "Signator" shall mean any state which enters into
this compact and is a party thereto.
ARTICLE III
INTERGOVERNMENTAL COOPERATION —
Agreements with the Federal Government and other
agencies.—Signatory states are hereby authorized
jointly to participate in cooperative or joint undertakings
for the protection of the interstate environment with the
Federal Government or with any intergovernmental or
interstate agencies.
ARTICLE IV
SUPPLEMENTARY AGREEMENT' JURISDICTION
AND ENFORCEMENT —
A. Signatories may enter into agreements for the
purpose of controlling interstate environmental prob-
lems in accordance with applicable federal legislation
and under terms and conditions as deemed appropriate
by the agreeing states under Paragraph F. and Para-
graph H. of this Article.
B. Recognition of existing nonenvironmental inter-
governmental arrangements.—The signatories agree
that existing federal-state, interstate or intergovernmen-
tal arrangements which are not primarily directed to
environmental protection purposes as defined herein
are not affected by this compact.
C. Recognition of existing intergovernmental agree-
ments directed to environmental objectives.—All exist-
ing interstate compacts directly relating to environmen-
tal protection are hereby expressly recognized and
nothing in this compact shall be construed to diminish
or supersede the powers and functions of such existing
intergovernmental agreements and the organizations
created by them.
D. Modification of existing commissions and com-
pacts.—Recognition herein of multistate commissions
and compacts shall not be construed to limit directly or
indirectly the creation of additional multistate organiza-
tions or interstate compacts, nor to prevent termination,
modification, extension, or supplementation of such mul-
tistate organizations and interstate compacts recog-
nized herein by the Federal Government or states party
thereto.
E. Recognition of future multistate commissions
and interstate compacts.—Nothing in this compact snail
be construed to prevent signatories from entering into
multistate organizations or other interstate compacts
which do not conflict with their obligations under this
compact.
F. Supplementary agreements.—Any two or more
signatories may enter into supplementary agreements
for joint, coordinated or mutual environmental manage-
ment activities relating to interstate pollution problems
common to the territories of such states and for the
establishment of common or joint regulation, manage-
ment, services, agencies or facilities for such purposes
or may designate an appropriate agency to act as their
joint agency in regard thereto. No supplementary agree-
ment shall be valid to the extent that it conflicts with the
purposes of this compact and the creation of a joint
agency by supplementary agreement shall not affect
the privileges, powers, responsibilities or duties under
this compact of signatories participating therein as
embodied in this compact.
G. Execution of supplementary agreements and
effective date.—The Governor is authorized to enter into
supplementary agreements for the state and his official
signature shall render the agreement immediately bind-
ing upon the state; provided that:
1. The legislature of any signatory entering into
such a supplementary agreement shall at its next legis-
lative session by concurrent resolution bring the supple-
mentary agreement before it and by appropriate legisla-
tive action approve, reverse, modify or condition the
agreement of that state.
2. Nothing in this agreement shall be construed to
limit the right of Congress by act of law expressly
enacted for that purpose to disapprove or condition
such a supplementary agreement.
H. Special supplementary agreements.—Signato-
ries may enter into special supplementary agreements
with the District of Columbia or foreign nations for the
same purposes and with the same powers as under
Paragraph F., Article IV, upon the condition that such
nonsignatory party accept the general obligations of sig-
natories under this compact. Provided, that such special
supplementary agreements shall become effective only
after being consented to by the Congress.
I. Jurisdiction of signatories reserved.—Nothing in
this compact or in any supplementary agreement there-
under shall be construed to restrict, relinquish or be in
derogation of, any power or authority constitutionally
possessed by any signatory within its jurisdiction,
except as specifically limited by this compact or a sup-
plementary agreement.
J. Complementary legislation by signatories.—Sig-
natories may enact such additional legislation as may be
deemed appropriate to enable its officers and govern-
mental agencies to accomplish effectively the purposes
of this compact and supplementary agreements recog-
nized or entered into under the terms of this Article.
K. Legal rights of signatories.—Nothing in this com-
pact shall impair the exercise by any signatory of its
legal rights or remedies established by the United
States Constitution or any other laws of this nation.
55
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
ARTICLE V 403.7063
CONSTRUCTION, AMENDMENT AND EFFECTIVE ^7(1^
DATE —
A. Construction.—It is the intent of the signatories ^3 jq7
that no provision of this compact or supplementary 403 7072
agreement entered into hereunder shall be construed as 403 7075
invalidating any provision of law of any signatory and
that nothing in this compact shall be construed to mod- 4Q3 jqq
ify or qualify the authority of any signatory to enact or 403 7083
enforce environmental protection legislation within its
jurisdiction and not inconsistent with any provision of 4Q3 7034
this compact or a supplementary agreement entered 403 7085
into pursuani hereto.
B. Severability.—The provisions of this compact or 403.709
ol agreements hereunder shall be severable and it any
phrase, clause, sentence or provisions of this compact,
or such an agreement is declared to be contrary to the 403.7095
constitution of any signatory or of the United States or 403.712
is held invalid, the constitutionality of the remainder of 403.7125
this compact or of any agreement and the applicability 403.713
thereof to any participating jurisdiction, agency, person 403.714
or circumstance shall not be affected thereby and shall 403.7145
remain in full force and effect as to the remaining partici- 403.715
pating jurisdictions and in full force and effect as to the
signatory affected as to all severable matters. It is the 403.716
intent of the signatories that the provisions of this com-
pact shall be reasonably and liberally construed in the 403.7165
context of its purposes.
C. Amendments.—Amendments to this compact
may be initiated by legislative action of any signatory 403.717
and become effective when concurred in by all signato-
ries and approved by Congress. 403.718
D. Effective date.—This compact shall become 403.7185
binding on a state when enacted by it into law and such 403.719
state shall thereafter become a signatory and party 403.7195
hereto with any and all states legally joining herein. 403.7197
E. Withdrawal from the compact.—A state may 403.7198
withdraw from this compact by authority of an act of its 403.72
legislature 1 year after it notifies all signatories in writing 403.721
of an intention to withdraw from the compact. Provided,
withdrawal from the compact affects obligations of a sig-
natory imposed on it by supplementary agreements to
which it may be a party only to the extent and in accord- 403.7215
ance with the terms of such supplementary agreements.
Hlitw*.—«. 1. eh. 71-79. 403.722
PART IV 403.7221
RESOURCE RECOVERY AND MANAGEMENT 403.7222
403.7223
403.702 Legislative findings; public purpose.
403.703 Definitions. 403.7225
403.704 Powers and duties of the department.
403.7043 Compost standards and applications. 403.7226
403.7045 Application of act and integration with other 403.7227
acts.
403.7049 Determination of full cost for solid waste 403.723
management; local solid waste manage- 403.7234
ment fees.
403.705 State solid waste management program. 403.7236
403.706 Local government solid waste responsibili-
ties. 403.724
56
Use of private services in solid waste man-
agement.
Procurement of products or materials with
recycled content.
Permits.
Citation of rule.
Submission of plans for certain solid waste
management facilities; conditions.
Prohibition; penalty.
Offsite biological waste incineration facilities,
requirements.
Biohazardous waste tracking system.
Animal parts, fats, byproducts, waste prod-
ucts. vegetable oils disposal.
Solid Waste Management Trust Fund; alloca-
tion of waste tire fee moneys: waste tire
site management.
Solid waste management grant program.
Revenue bonds.
Landfill management escrow account.
Transport of solid waste.
Duties of state agencies.
Capitol recycling demonstration area.
Certification of resource recc "?ry or recy-
cling equipment.
Training of operators of solid waste manage-
ment facilities.
Applications Demonstration Center for
Resource Recovery from Solid Organic
Materials.
Waste tire and lead-acid battery require-
ments.
Waste tire fees.
Lead-acid battery fees.
Waste tire grants.
Waste newsprint disposal fees.
Advance disposal fee program.
Containers; deposit; recycling and return.
Identification, listing, and notification.
Standards, requirements, and procedures
for generators and transporters of hazard-
ous waste and owners and operators of
hazardous waste facilities.
Tax on gross receipts of commercial hazard-
ous waste facilities.
Permits; hazardous waste disposal, storage,
and treatment facilities.
Research, development, and demonstration
permits.
Prohibition of hazardous waste landfills.
Waste elimination and reduction assistance
program.
Local hazardous waste management
assessments.
Technical assistance by the department.
Hazardous Waste Information Grant Pro-
gram.
Siting of hazardous waste facilities.
Small quantity generator notification pro-
gram.
Local government information to be sent to
the department.
Financial responsibility.
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F.S. 1991 ENVIRONMENTAL CONTROL Ch. 4C3
403.725
403.7255
403.726
403.7264
403.7265
403.727
403.728
403.73
403.74
403.75
403.751
403.753
403.754
403.7545
403.756
403.757
403.758
403.759
403.760
403.761
403.763
403.767
403.769
403.7721
403.78
403.781
403.782
403.783
403.784
403.7841
403.7842
403.785
403.786
403.787
403.7871
403.7872
403.7873
403.788
403.7881
403.789
403.7891
403.7892
403.7893
Hazardous Waste Management Trust Fund.
Department to adopt rules.
Abatement of imminent hazard caused by
hazardous substance.
Amnesty days (or purging small quantities of
hazardous wastes.
Local hazardous waste collection program.
Violations; defenses, penalties, and reme-
dies.
Qualifications of operation personnel of haz-
ardous waste facilities.
Trade secrets.
Management of hazardous materials by gov-
ernmental agencies.
Definitions relating to used oil.
Prohibited actions; used oil.
Public educational program abrut collection
and recycling of used oil.
Registration of persons transporting, collect-
ing, or recycling used oil; fees; reports and
records.
Regulation of used oil as hazardous waste.
Report to Legislature concerning oil recy-
cling.
Coordination with other state agencies.
Enforcement and penalty.
Disposition of fees, fines, and penalties.
Public used oil collection centers.
Incentives program.
Grants to local governments.
Certification of used oil transporters.
Permits for used oil recycling facilities.
Rule of construction; cr o. 85-269 and
85-277.
Short title.
Legislative intent.
Definitions.
Department of Environmental Regulation;
powers and duties.
Applicability and certification.
Application for certification.
Fees.
Appointment of hearing officer.
Report and studies.
Notice, proceedings, parties, participants.
Public meetings.
Amendment to the application.
Alteration of time limits.
Final disposition of application.
Terms and conditions of certification.
Effect of certification.
Revocation, suspension, or modification of
certification.
Enforcement of compliance.
Superseded laws, regulations, and certifica-
tion power.
403.702 Legislative findings; public purpose.—
(1) In order to enhance the beauty and quality of our
environment; conserve and recycle our natural
resources; prevent the spread of disease and the cre-
ation of nuisances; protect the public health, safety, and
welfare; and provide a coordinated statewide solid
waste management program, the Legislature finds that:
(a) Inefficient and improper methods of managing
solid waste create hazards to public health, cause pollu-
tion cf air and water resources, constitute a waste of nat-
ural resources, have an adverse effect on land values,
and create public nuisances.
(b) Problems of solid waste management have
become a matter statewide in scope and necessitate
state action to assist local government in improving
methods and processes to promote more efficient meth-
ods of solid waste collection and disposal.
(c) The continuing technological progress and
improvements in methods of manufacture, packaging,
and marketing of consumer products have resulted in an
ever-mounting increase of the mass of material dis-
carded by the purchasers of such products, thereby
necessitating a statewide approach to assist local gov-
ernments around the state with their solid waste man-
agement programs.
(d) The economic and population growth of our state
and the improvements in the standard of living enjoyed
by our population have required increased industrial pro-
duction together with related commercial and agricul-
tural operations to meet our needs, which have resulted
in a rising tide of unwanted and discarded materials.
(e) The failure or inability to economically recover
material and energy resources from solid waste results
in the unnecessary waste and depletion of our natural
resources, and, therefore, maximum resource recovery
from solid waste, and maximum, recycling and reuse of
such resources must be considered goals of the state.
(f) Certain solid waste, due to its quantity; concen-
tration; or physical, chemical, biological, or infectious
characteristics, is hazardous to human health, safety,
and welfare and to the environment, and exceptional
attention to the transportation, disposal, storage, and
treatment of such waste is necessary to protect human
health, safety, and welfare and the environment.
(g) This act should be integrated with other acts and
parts of this chapter such that nonhazardous waste dis-
charges currently regulated under this chapter, water or
solid waste construction, modification, or operating per-
mits, air emissions, special wastes, and other activities
regulated under other more appropriate provisions of
law remain in full force and effect and are not preempted
by the requirements of this act.
(2) It is declared to be the purpose of this act to:
(a) Plan for and regulate in the most economically
feasible, cost-effective, and environmentally safe man-
ner the storage, collection, transport, separation, pro-
cessing, recycling, and disposal of solid waste in order
to protect the pubiic safety, health, and welfare;
enhance the environment for the people of this state;
and recover resources which have the potential for fur-
ther usefulness.
(b) Establish and maintain a cooperative state pro-
gram of planning and technical and financial assistance
for solid waste management.
(c) Provide the authority and require counties and
municipalities to adequately plan and provide efficient,
environmentally acceptable solid waste management
and require counties to plan for proper hazardous waste
management.
57
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(d) Require review of Ihe design, and issue permits
for the construction, operation, and closure of solid
waste management facilities.
(e) Promote the application of resource recovery
systems which preserve and enhance the quality of air,
water, and land resources.
(f) Ensure that hazardous waste is transported, dis-
posed of, stored, and treated in a manner adequate to
protect human health, safety, and welfare and the envi-
ronment.
(g) Promote the reduction, recycling, reuse, or treat-
ment of solid waste, specifically including hazardous
waste, in lieu of disposal of such wastes.
(h) Promote the application of methods and technol-
ogy for the treatment, disposal, and transportation of
hazardous wastes which are practical, cost-effective,
and economically feasible.
(i) Encourage counties and municipalities to utilize
all means reasonably available to promote efficient and
proper methods of managing solid waste and to pro-
mote the economical recovery of material and energy
resources from solid waste, including, but not limited to,
contracting with persons to provide or operate resource
recovery services or facilities on behalf of the county or
municipality.
(j) Promote the education of the general public and
the training of solid waste professionals to reduce the
production of solid waste, to ensure proper disposal of
solid waste, and to encourage recycling.
(k) Encourage the development of waste reduction
and recycling as a means of managing solid waste, con-
serving resources, and supplying energy through plan-
ning, grants, technical assistance, and other incentives.
(I) Encourage the development of the state s recy-
cling industry by promoting the successful development
of markets for recycled items and by promoting the
acceleration and advancement of the technology used
in manufacturing processes that use recycled items.
(m) Require all state agencies to aid and promote the
development of recycling through their procurement
policies for the general welfare and economy of the
state.
(n) Require counties to develop and implement recy-
cling programs within their jurisdictions to return valu-
able materials to productive use, to conserve energy
and natural resources, and to protect capacity at solid
waste management facilities.
(o) Ensure that biohazardous waste is transported,
stored, treated, and disposed of in a manner adequate
to protect human health, safety, and welfare and the
environment.
(p) Require counties, municipalities, and state agen-
cies to determine the full cost for providing, in an envi-
ronmentally safe manner, storage, collection, transport,
separation, processing, recycling, and disposal of solid
waste material, and encourage counties, municipalities,
and state agencies affected to contract with private per-
sons for any or all such services in order to assure that
such services are provided on the most cost-effective
basis
Hlttory.—«. 1. eh. 74-342; i 3. ch. 80-302: ». 20. ch. 63-310: «. 30. ch 64-338:
i. 3. ch. 87-107; t 2. ch. 88-130.
403.703 Definitions.—As used in this act, unless
the context clearly indicates otherwise, the term:
(1) "Department" means the Department of Environ-
mental Regulation or any successor agency performing
a like function.
(2) "County," or any like term, means a political sub-
division of the state established pursuant to s. 1, Art. VIII
of the State Constitution and when s. 403.706(20)
applies, means a special district or other entity.
(3) "Municipality," or any like term, means a munici-
pality created pursuant to general or special law author-
ized or recognized pursuant to s. 2 or s. 6, Art. VIII of the
State Constitution and when s. 403.706(20) applies,
means a special district or other entity.
(4) "Person" means any and all persons, natural or
artificial, including any individual, firm, or association;
any municipal or private corporation organized or exist-
ing under the laws of this state or any other state: any
county of this state: and any governmental agency of
this state or the Federal Government.
(5) "Recyclable material' means those materials
which are capable of being recycled and which would
otherwise be processed or disposed of as solid waste.
(6) "Recycling" means any process by which solid
waste, or materials which would otherwise become solid
waste, are collected, separated, or processed and
reused or returned to use in the form of raw materials or
products.
(7) "Recovered materials" means those materials
which have known recycling potential, can be feasibly
recycled, and have been diverted or removed from the
solid waste stream for sale, use, or reuse, by separation,
collection, or processing.
(8) "Solid waste management" means the process
by which solid waste is collected, transported, stored,
separated, processed, or disposed of in any other way,
according to an orderly, purposeful, and planned pro-
gram.
(9) "Resource recovery" means the process of recov-
ering materials or energy from solid waste, excluding
those materials or solid waste under control of the
Nuclear Regulatory Commission.
(10) "Solid waste management facility" means any
solid waste disposal area, volume reduction plant, trans-
fer station, or olher facility, the purpose of which is
resource recovery or the disposal, recycling, process-
ing, or storage of solid waste. The term does not include
facilities which use or ship recovered materials unless
such facilities are managing solid waste.
(11) 'Solid waste disposal facility' means any solid
waste management facility which is the final resting
place for solid waste, including landfills and incineration
facilities that produce ash from the process of incinerat-
ing municipal solid waste.
(12) "Resource recovery equipment" means equip-
ment or machinery exclusively and integrally used in the
actual process of recovering material or energy
resources from solid waste.
(13) 'Solid waste' includes garbage, refuse, yard
trash, clean debris, white goods, special waste, ashes,
sludge, or other discarded material, including solid, liq-
uid, semisolid, or contained gaseous material resulting
56
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
from domestic, industrial, commercial, mining, agricul-
tural. or governmental operations.
(14) "Volume reduction plant' includes incinerators,
pulverizers, compactors, shredding and baling plants,
composting plants, and other plants which accept and
process solid waste for recycling or disposal.
(15) "Yard trash" means vegetative matter resulting
from landscaping maintenance and land-clearing oper-
ations.
(16) Transfer station" means a site the primary pur-
pose of which is to store or hold solid waste for transport
to a processing or disposal facility.
(17) "Construction and demolition debris" means
materials generally considered to be not water soluble
and nonhazardous in nature, including, but not limited
to. steel, glass, brick, concrete, asphalt roofing material,
pipe, gypsum wallboard, and lumber, from ,ne construc-
tion or destruction of a structure as part of a construc-
tion or demolition project, and including rocks, soils, tree
remains, trees, and other vegetative matter which nor-
mally results from land clearing or land development
operations for a construction project. Mixing of construc-
tion and demolition debris with other types of solid
waste, including material from a construction or demoli-
tion site which is not from the actual construction or
destruction of a structure, will cause it to be classified
as other than construction and demolition debris.
(18) "Class I solid waste disposal area" means a dis-
posal facility which receives an average of 20 tons or
more per day, if scales are available, or 50 cubic yards
or more per day of solid waste, as measured in place
after covering, and which receives an initial cover daily.
(19) 'Class II solid waste disposal area" means a dis-
posal facility which receives an average of less than 50
cubic yards per day of solid waste, as measured in place
after covering, and which receives an initial cover at
least once every 4 days.
(20) "Closure' means the cessation of operation of a
solid waste management facility and the act of securing
such facility so that it will pose no significant threat to
human health or the environment.
(21) 'Disposal* means the discharge, deposit, injec-
tion, dumping, spilling, leaking, or placing of any solid
waste or hazardous waste into or upon any land or water
so that such solid waste or hazardous waste or any con-
stituent thereof may enter other lands or be emitted into
the air or discharged into any waters, including ground-
waters, or otherwise enter the environment.
(22) "Generation" means the act or process of produc-
ing solid or hazardous waste.
(23) "Hazardous waste" means solid waste, or a com-
bination of solid wastes, which, because of its quantity,
concentration, or physical, chemical, or infectious char-
acteristics, may cause, or significantly contribute to, an
increase in mortality or an increase in serious irreversible
or incapacitating reversible illness or may pose a sub-
stantial present or potential hazard to human health or
the environment when improperly transported, disposed
of, stored, treated, or otherwise managed.
(24) 'Hazardous waste facility" means any building,
site, structure, or equipment at or by which hazardous
waste is disposed of, stored, or tieated.
(25) "Hazardous waste management" means the sys-
tematic control of the collection, source separation, stor-
age, transportation, processing, treatment, recovery,
recycling, and disposal of hazardous wastes.
(26) "Manifest" means the recordkeeping system
used for identifying the concentration, quantity, compo-
sition, origin, routing, and destination of hazardous
waste during its transportation from the point of genera-
tion to the point of disposal, storage, or treatment.
(27) "Operation," with respect to any solid waste man-
agement facility, means the disposal, storage, or pro-
cessing of solid waste at and by the facility.
(28) "Storage" means the containment or holding of a
hazardous waste, either on a temporary basis or for a
period of years, in such a manner as not to constitute
disposal of such hazardous waste.
(29) "Transport" means the movement of hazardous
waste from the point of generation or point of entry into
the state to any offsite intermediate points and to the
point of offsite ultimate disposal, storage, treatment, or
exit from the state.
(30) "Treatment," when used in connection with haz-
ardous waste, means any method, technique, or proc-
ess, including neutralization, designed to change the
physical, chemical, or biological character or composi-
tion of any hazardous waste so as to neutralize it or ren-
der it nonhazardous, safe for transport, amenable to
recovery, amenable to storage or disposal, or reduced
in volume or concentration. The term includes any activ-
ity or processing designed to change the physical form
or chemical composition of hazardous waste so as to
render it nonhazardous.
(31) "Hazardous substance" means any substance
which is defined as a hazardous substance in the United
States Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980, 94 Stat. 2767.
(32) "Guarantor" means any person, other than the
owner or operator, who provides evidence of financial
responsibility for an owner or operator under this act.
(33) "Land disposal" means any placement of hazard-
ous waste in or on the land and includes, but is not lim-
ited to, placement in a landfill, surface impoundment,
waste pile, injection well, land treatment facility, salt bed
formation, salt dome formation, or underground mine or
cave, or placement in a concrete vault or bunker
intended for disposal purposes.
(34) "Special wastes" means solid wastes that can
require special handling and management, including,
but not limited to, white goods, whole tires, used oil,
mattresses, furniture, lead-acid batteries, and biological
wastes.
(35) "Clean debris" means any solid waste which is
virtually inert and which is not a pollution threat to
groundwater or surface waters and is not a fire hazard
and which is likely to retain its physical and chemical
structure under expected conditions of disposal or use.
The term includes uncontaminated concrete, including
embedded pipe or steel, brick, glass, ceramics, and
other wastes designated by the department.
(36) "Processing" means any technique designed to
change the physical, chemical, or biological character or
composition of any solid waste so as to render it safe for
59
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
transport, amenable to recovery, storage or recycling, or
safe for disposal, or reduced in volume or concentration.
(37) "Sludge" includes the accumulated solids, resi-
dues, and precipitates generated as a result of waste
treatment or processing, including wastewater treat-
ment. water supply treatment, or operation of an air pol-
lution control facility, and mixed liquids and solids
pumped from septic tanks, grease traps, privies, or simi-
lar waste disposal appurtenances.
(38) "White goods" includes inoperative and dis-
carded refrigerators, ranges, water heaters, freezers,
and other similar domestic and commercial large appli-
ances.
(39) "Biohazardous waste" means any solid waste or
liquid waste which may present a threat of infection to
humans. The term includes, but is not limited to, nonliq-
uid human tissue and body parts; laboratory and veteri-
nary waste which contain human-disease-causing
agents; used disposable sharps; human blood, and
human blood products and body fluids; and other mate-
rials which in the opinion of the Department of Health
and Rehabilitative Services represent a significant risk
of infection to persons outside the generating facility.
(40) "Biohazardous waste generator" means a facility
or person that produces or generates biohazardous
waste. The term includes, but is not limited to, hospitals,
skilled nursing or convalescent hospitals, intermediate
care facilities, clinics, dialysis clinics, dental offices,
health maintenance organizations, surgical clinics, medi-
cal buildings, physicians' offices, laboratories, veterinary
clinics, and funeral homes.
(41) "Biological waste' means solid waste that causes
or has the capability of causing disease or infection and
includes, but is not limited to, biohazardous waste, dis-
eased or dead animals, and other wastes capable of
transmitting pathogens to humans or animals.
MtatOfy.—• l.eft. 7*-3«2; i. 2. eh. 78-329:*. 1.eh. 78-387; » 84. eh. 79-65; ».
4. en. 80-302;a. 1, eft. 81-45: a. 267. eft. 81-259: «. 31. eh. 83-310: a. 33. ch. 84-338:
». 31, eh- 88-186: a. 3. ch. 88-130: ». 67. <*v 90-331.
403.704 Powers and duties of the department.—
The department shall have responsibility for the imple-
mentation and enforcement of the provisions of this act.
In addition to other powers and duties, the department
shall;
(1) Develop and implement, in consultation with
local governments, a state solid waste management pro-
gram, as defined in s. 403.705, and update the program
at least every 3 years. In developing rules to implement
the state solid waste management program, the depart-
ment shall hold public hearings around the state and
shall give notice of such public hearings to all local gov-
ernments and regional planning agencies.
(2) Provide technical assistance to counties, munici-
palities, and other persons, and cooperate with appro-
priate federal agencies and private organizations in car-
rying out the provisions of this act.
(3) Promote the planning and application of recy-
cling and resource recovery systems which preserve
and enhance the quality of the air, water, and other natu-
ral resources of the state and assist in and encourage,
where appropriate.'the development of regional solid
waste management facilities.
(4) Serve as the official state representative for all
purposes of the federal Solid Wasle Disposal Ac!, as
amended by Pub. L. No. 91-512, or as subsequently
amended.
(5) Use private industry or the State University Sys-
tem through contractual arrangements for implementa-
tion of some or all of the requirements of the state solid
waste management program and for such other activi-
ties as may be considered necessary, desirable, or con-
venient.
(6) Encourage recycling and resource recovery as a
source of energy and materials.
(7) Assist in and encourage, as much as possible,
the development within the state of industries and com-
mercial enterprises which are based upon resource
recovery, recycling, and reuse of solid waste.
(8) Charge reasonable fees for any services it per-
forms pursuant to this act, provided user fees shall
apply uniformly within each municipality or county to all
users who are provided with solid waste management
services.
(9) Acquire, at its discretion, personal or real prop-
erty or any interest therein by gift, lease, or purchase for
the purpose of providing sites for solid waste manage-
ment facilities.
(10) Acquire, construct, reconstruct, improve, main-
tain, equip, furnish, and operate, at its discretion, such
solid waste management facilities as are called for by
the state solid waste management program.
(11) Receive funds or revenues from the sale of prod-
ucts, materials, fuels, or energy in any form derived from
processing of solid waste by state-owned or state-
operated facilities, which funds or revenues shall be
deposited into the Solid Waste Management Trust
Fund.
(12) Determine by rule the facilities, equipment, per-
sonnel, and number of monitoring wells to be provided
at each Class I solid waste disposal area.
(13) Encourage, but not require, as part of a Class II
solid waste disposal area, a potable water supply; an
employee shelter; handwashing and toilet facilities:
equipment washout facilities; electric service for opera-
tions and repairs; equipment shelter for maintenance
and storage of parts, equipment, and tools; scales for
weighing solid waste received at the disposal area; a
trained equipment operator in full-time attendance dur-
ing operating hours; and communication facilities for use
in emergencies. The department may require an atten-
dant at a Class II solid waste disposal area during the
hours of operation if the department affirmatively dem-
onstrates that such a requirement is necessary to pre-
vent unlawful fires, unauthorized dumping, or littering of
nearby property.
(14) Require a Class II solid waste disposal area to
have at least one monitoring well which shall be placed
adjacent to the site in the direction of groundwater flow
unless otherwise exempted by the department. The
department may require additional monitoring wells not
farther than 1 mile from the site if it is affirmatively dem-
onstrated by the department that a significant change
in the initial quality of the water has occurred in the
downstream monitoring well which adversely affects the
beneficial uses of the water. These wells may be public
60
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F.S. 1991
Ch. 403
or private water sjcdIv wells if '.hey a:e sjitable t'cr use
in determining background water quality ieveis.
(15) Adopt, repeal, cr amenc rules to implement,
administer, sr.d enforce ih;s act. incluci"? requirements
for the classification, construction, operation, mainte-
nance. and closure of solid waste management facilities.
When classifying solid waste management facilities, the
department shall consider the hydrcgeolocy of the site
for the facility, the types of wastes to be handied rsy the
facility, and methods used to control the types of waste
to be handled by the facility and shall seek to minimize
the adverse effects of solid waste management on the
environment. Whenever the department adopts any rule
stricter or more stringent than one which has been set
by the United States Environmental Protection Agency,
the procedures set forth in s. 403.£0-4(2) shai. ae fol-
lowed. The department shall not. noweve , adopt haz-
ardous waste rules for sclid waste for which special
studies were required prior to October 1. 19S8. under s.
8002 of the Resource Conservation ar.d Recovery Act,
42 U.S.C. ss. 6982, as amended, until the studies are
completed by the United States Environmental Protec-
tion Agency and the information is available to the
department for consideration in adopting its own rule.
(16) Issue or modify permits on such conditions as
are necessary to effect the intent and purposes of this
act, and may deny or revoke permits.
(17) Conduct research, using the Slate University
System, solid waste professionals from local govern-
ments, private enterprise, and other organizations, on
alternative, economically feasible, cost-effective, ar.d
environmentally safe solid waste management and land-
fill closure methods which protect the i ^alth, safety, and
welfare of the public and the environment and which
may assist in developing markets and provide economic
benefits to local governments, the state, and its citizens,
and solicit public participation during the research proc-
ess. The department shall incorporate such cost-
effective landfill closure methods in the appropriate
department rule as alternative closure requirements.
(18) Develop and implement or contract for services
to develop information on recovered materials markets
and strategies for market development and expansion
for use of these materials. Additionally, the department
shall maintain a directory of recycling businesses oper-
ating in the state and shall serve as c coordinator to
match recovered materials with markets. Such directory
shall be made available to the public and to local govern-
ments to assist with their solid waste management
activities.
(19) Authorize variances from solid waste closure
rules adopted pursuant to this part, provided such vari-
ances are applied for and approvea in accordance-with
s. 403.201 and will not result in significant threats to
human health or the environment.
(20) Establish accounts and deposit to the Solid
Waste Management Trust Fund and control and admin-
ister moneys it may withdraw from the fund.
(21) Establish an account and deposit to the Hazard-
ous Waste Management Trust Fund and control and
administer moneys it may withdraw from the fund.
(22) Manage a program of grants, using funds from
the Solid Waste Management Trust Fund and funds pro-
vided by :r,e Legislature for solid waste management,
fc program for recycling, litter control, and special
weste rnsncgemen: end fcr programs which provide for
the sale ana proper mens cement cv sclid waste.
(23) Budget and receive appropriated funds and
accept, receive, and administer grants cr other funds cr
gifts from public cr private agencies, including the state
and the Federal Government, for the purpose of carrying
out the provisions of this act.
(24) Delegate its powers, enter into contracts, or take
such other actions as may be necessary to implement
this act.
(25) Receive and administer funds appropriated for
county hazardous waste r.-.anagsment assessments.
(35) Provide technical assistance to local govern-
ments ana regional agencies to ensure consistency
bjiween county fiazarcoui; waste management assess-
ments; coordinate tns development of sucn assess-
ments with the assistance of tr:e appropriate regional
pia.nning councils: and review and make recommenda-
tions to the Legislature relative to the sufficiency of the
assessments to meet state hazardous waste manage-
ment needs.
(27) Increase public education and public awareness
of solid and hazardous waste issues by developing and
promoting statewide programs of litter control, recy-
cling, volume reduction, and proper methods of solid
waste and hazardous waste management.
(23) Assist the hazardous waste storage, treatment,
cr disoosal industry by providing to the industry any
data produced on the types and quantities of hazardous
waste generated.
(29) Institute a hazardous waste emergency
response program wnich would include emergency tele-
communication capabilities and coordination with appro-
priate agencies.
(30) Promulgate rules necessary to accept delegation
of the hazardous waste management program from the
Environmental Protection Agency under the Hazardous
and Solid Waste Amendments of 1984, Pub. L. No. 98-
616.
(31) Not later than February 1, 1989, initiate rulemak-
ing to address the management of biohazardous waste
and biological waste within the state. Such rules shall
address onsite and offsite incineration and shall regulate
biohazardous waste from the point at which such waste
is transported from a facility which generates such
waste, for the purpose of of/site shipment to: storage,
treairr.eni, c: disposal, anc snail include provisions for
the registering of transporters of biohazardous waste.
Hi»tory.—; i.c* $ 1, ch. 75-54- $. 2. cn. 76-387; v S. cn. 0O-X2: as.
21. 32. cr,. Lo-310. i. 3l.cn 84-338, s. 32. eft 8S-186: s. 6. cr>. 86-lX.
402.7043 Compos; standards and applications.—
(1) in order to protect the state's land and water
resources, compost produced, utilized, or disposed of
by ihe composting process at solid waste management
facilities in the state must meet criteria established by
the department.
(2) Within 6 months after October 1, 1988. the
department shall initiate rulemaking to establish stand-
ards for the production of compost and shall complete
and promulgate those rules within 12 months after initi-
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
aimg the process of rulemaking, including rules estab-
lishing:
(a) Requirements necessary to produce hygienically
safe compos; products for varying applications.
(b) A classification scheme for compost based on:
the types of waste composted, including at least one
type containing only yard trash; the maturity of the com-
post. including at least three degrees of decomposition
for fresh, semimature, and mature: and the levels of
organic and inorganic constituents in the compost. This
scheme shall address:
1. Methods for measurement of the compost matu-
rity.
2. Particle sizes.
3. Moisture content.
4. Average levels of organic and inorganic constitu-
ents, including heavy metals, for such classes of com-
post as the department establishes, and the analytical
methods to determine those levels.
(3) Within 6 months after October 1, 1988, the
department shall initiate rulemaking to prescribe the
allowable uses and application rates of compost and
shall complete and promulgate those rules within 12
months after initiating the process of rulemaking, based
on the following criteria:
(a) The total quantity of organic and inorganic con-
stituents, including heavy metals, allowed to be applied
through the addition of compost to the soil per acre per
year.
(b) The allowable uses of compost based on matu-
rity and type of compost.
(4) If compost is produced which does not meet the
criteria prescribed by the department for agricultural
and other use, the compost must be reprocessed or dis-
posed o1 in a manner approved by the department,
unless a different application is specifically permitted by
the department.
(5) Compost produced as a result of contracts with
city or county governments entered into prior to October
1, 1988, shall not be required to meet the provisions of
this section until 10 years after October 1, 1988.
(6) The provisions of s. 403.706 shall not prohibit any
county or municipality which has in place a memoran-
dum of understanding or other written agreement as of
October 1, 1988, from proceeding with plans to build a
compost facility.
Hlttonr-—I. 7. ch. 86-130.
403.7045 Application of act and integration with
other acts.—
(1) The following wastes or activities shall not be
regulated pursuant to this act:
(a) Byproduct material, source material, and special
nuclear material, the generation, transportation, dis-
posal. storage, or treatment of which is regulated under
chapter 404 or under the federal Atomic Energy Act of
1954, ch. 1073, 68 Stal. 923, as amended;
(b) Suspended solids and dissolved materials in
domestic sewage effluent or irrigation return flows or
other discharges which are point sources subject to per-
mits pursuant to provisions of this chapter or pursuant
to s. 402 of the Clean Water Act, Pub. L. No. 95-217;
(c) Emissions to the air from a stationary installation
or source regulated under provisions of this chapter or
under the Clean Air Act. Pub. L. No. 95-95:
(d) Drilling fluids, produced waters, and other
wastes associated with the exploration for, or develop-
ment and production of, crude oil or natural gas which
are regulated under cnapter 377;
(e) Activities which are regulated pursuant to the
Florida Hazardous Substances Law, ss. 501.061-
501.121; or
(f) Recovered materials, if:
1. A majority of the recovered materials at a facility
are demonstrated to be sold, used, or reused within 1
year;
2. The recovered materials or the products or
byproducts of operations that process recovered materi-
als are not discharged, deposited, injected, dumped,
spilled, leaked, or placed into or upon any land or water
so that such products or byproducts or any constituent
thereof may enter other lands or be emitted into the air
or discharged into any waters, including groundwaters,
or otherwise enter the environment or pose a threat to
public health and safety; and
3. The recovered materials are not hazardous
wastes and have not been recovered from solid wastes
which are defined as hazardous wastes under s.
403.703, and rules promulgated pursuant thereto.
(2) Except as provided in s. 403.704(15), the follow-
ing wastes shall not be regulated as a hazardous waste
pursuant to this act, except when determined by the
United States Environmental Protection Agency to be a
hazardous waste:
(a) Ashes and scrubber sludges generated from the
burning of boiler fuel for generation of electricity or
steam.
(b) Agricultural and silvicultural byproduct material
and agricultural and silvicultural process waste from nor-
mal farming or processing.
(c) Discarded material generated by the mining and
beneficiation and chemical or thermal processing of
phosphate rock, and precipitates resulting from neutral-
ization of phosphate chemical plant process and non-
process waters.
(3) The following wastes or activities shall be regu-
lated pursuant to this act in the following manner:
(a) Dredge spoil or fill material shall be disposed of
pursuant to a dredge and fill permit, but whenever haz-
ardous components are disposed of within the dredge
or fill material, the dredge and fill permits shall specify
the specific hazardous wastes contained and the con-
centration of each such waste. The department may
then limit or restrict the sale or use of the dredge and
fill material and may specify such other conditions rela-
tive to this material as are reasonably necessary to pro-
tect the public from the potential hazards.
(b) Hazardous wastes which are contained in artifi-
cial recharge waters or other waters intentionally intro-
duced into any underground formation and which are
permitted pursuant to s. 373.106 shall also be handled
in compliance with the requirements and standards for
disposal, storage, and treatment of hazardous waste
under this act.
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(c) Solid waste or hazardous waste facilities which
are operated as a part of the normal operation of a power
generating facility and which are licensed by certifica-
tion pursuant to the Florida Electrical Power Plant Siting
Act, ss. 403.501-403.518, shall undergo such certifica-
tion subject to the substantive provisions of this act.
(d) Biohazardous waste and biological waste shall
be disposed of only as authorized by the department.
However, any person who unknowingly disposes into a
sanitary landfill any such waste which has not been
properly segregated or separated from other solid
wastes by the generating facility is not guilty of a viola-
tion under this act. Nothing in this paragraph shall be
construed to prohibit the department from seeking
injunctive relief pursuant to s. 403.131 to prohibit the
unauthorized disposal of biohazardous was'e or biologi-
cal waste.
(4) Disposal of dead animals, including those which
were diseased, shall be consistent with applicable fed-
eral and state laws and regulations.
(5) Ash generated by a solid waste management
facility from the burning of solid waste shall be disposed
of in a properly designed solid waste disposal area that
complies with standards developed by the department
for the disposal of such ash. Rulemaking shall be initi-
ated and at least one public hearing held by February 1,
1989. The department shall work with solid waste man-
agement facilities which burn solid waste to identify and
aevelop methods for recycling and reuse of incinerator
ash or treated ash.
Mlotory.—«. 6. cn. 80-X2: J. 3. ch. 82-125: s. 28. en. 83-215; • 62. en. 83-2ie.
5. 8. cn. 68-130; s. SS. cn. 90-331.
403.7049 Determination of full cc- for solid waste
management; local solid waste management fees.—
(1) Within 1 year of October 1, 1988, or within 1 year
after rules are established by the department, which-
ever occurs later, each county and each municipality
shall determine the full cost for solid waste management
within the service area of the county or municipality for
the 1-year period beginning on October 1, 1988, and
shall update the full cost every year thereafter. The
department shall establish by rule the method for local
governments to use in calculating full cost. Rulemaking
shall be initiated and at least one public hearing shall be
held by March 1, 1989. In developing the rule, the
department shall examine the feasibility of the use of an
enterprise fund process by local governments in operat-
ing their solid waste management systems.
(2)(a) Within 1 year from October 1, 1988, each
municipality shall establish a system to inform, no less
than once a year, residential and nonresidential users of
solid waste management services within the municipali-
ty's service area of the user s share, on an average or
individual basis, of the full cost for solid waste manage-
ment as determined pursuant to subsection (1). Coun-
ties shall provide the information required of municipali-
ties only to residential and nonresidential users of solid
waste management services within the county's service
area that are not served by a municipality. Municipalities
shall include costs charged to them or persons contract-
ing with them for disposal of solid waste in the full cost
information provided to residential and nonresidential
users of solid waste management services.
(b) Counties and municipalities are encouraged to
operate their solid waste management systems through
use of an enterprise fund.
(3) For purposes of this section, "service area-
means the area in which the county or municipality pro-
vides, directly or by contract, solid waste management
services. The provisions of this section shall not be con-
strued to require a person operating under a franchise
agreement to collect or dispose of solid waste within the
service area of a county or municipality to make the cal-
culations or to establish a system to provide the informa-
tion required under this section, unless such person
agrees to do so as part of such franchise agreement.
(4) In order to assist in achieving the municipal solid
waste reduction goal and the recycling provisions of s.
403.706(4), a county or a municipality which owns or
operates a solid waste management facility is hereby
authorized to charge solid waste disposal fees whicn
may vary based on a number of factors, incluaing, but
not limited to, the amount, characteristics, and form of
recyclable materials present in the solid waste that is
brought to the county's or the municipality's facility for
processing or disposal.
(5) In addition to all other fees required or allowed by
law, a county or a municipality, at the discretion of its
governing body, may impose a fee for the services the
county or municipality provides with regard to the collec-
tion, processing, or disposal of solid waste, to be used
for developing and implementing a recycling program.
For such fees, the local governing body of any county
or municipality may use the non-ad valorem levy, collec-
tion, and enforcement method as provided for in chapter
197.
(6) This section does not prohibit a county, munici-
pality, or other person from providing grants, loans, or
other aid to low-income persons to pay part or all of the
costs of such persons' solid waste management ser-
vices.
History.—4. 9. cn. 68-130.
403.705 State solid waste management program.
(1) The state solid waste management program
shall:
(a) Provide guidelines for the orderly collection,
transportation, storage, separation, processing, recov-
ery, recycling, and disposal of solid waste throughout
the state;
(b) Encourage coordinated local activity for solid
waste management within a common geographical
area;
(c) Investigate the present status of solid waste
management in the state with positive proposals for
local action to correct deficiencies in present solid waste
management processes;
(d) Provide planning, technical, and financial assist-
ance to local governments and state agencies for reduc-
tion, recycling, reuse, and processing of solid waste and
for safe and environmentally sound solid waste manage-
ment and disposal;
(e) Assist in the development of solid waste reduc-
tion and recycling programs to properly manage solid
waste and conserve resources; and
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(f) Provide for the education of the general public
and the training of solid waste management profession-
als to reduce the production of solid waste, to ensure
proper processing and disposal of solid waste, and to
encourage recycling and solid waste reduction.
(2) The state solid waste management program
shall be initiated by the department by February 1,1989,
and the department shall begin adoption of rules neces-
sary to implement the program by December 31, 1988.
The program shall be updated at least once every 3
years.
(3) The state solid waste management program
shall include, at a minimum:
(a) Procedures and requirements to ensure cooper-
ative efforts in solid waste management by counties and
municipalities and groups of counties and municipalities
where appropriate.
(b) Provisions for the continuation of existing effec-
tive regional resource recovery, recycling, and solid
waste management facilities and programs.
(c) Planning guidelines and technical assistance to
counties and municipalities to aid in meeting the munici-
pal solid waste reduction goals established in s.
403.706(4).
(d) Planning guidelines and technical assistance to
counties and municipalities to develop and implement
recycling programs.
(e) Technical assistance to counties and municipali-
ties in determining the full cost for solid waste manage-
ment as required in s. 403.7049(1).
(f) Planning guidelines and technical assistance to
counties and municipalities to develop and implement
programs for alternative disposal or processing or recy-
cling of the solid wastes prohibited from disposal in land-
fills under s. 403.708(15) and for special wastes.
(g) A public education program, to be developed in
cooperation with the Department of Education, local
governments, other state agencies, and business and
industry organizations, to inform the public of the need
for and the benefits of recycling of solid waste and
reducing the amounts of solid and hazardous waste
generated and disposed of in the state. The public edu-
cation program shall be implemented through public
workshops and through the use of brochures, reports,
public service announcements, and other materials.
(4) The department shall prepare by October 1,
1989, and every year thereafter, a report on the status
of solid waste management efforts in the state. The
report shall include, at a minimum:
(a) A comprehensive analysis, to be updated in each
report, of solid waste generation and disposal in the
state projected for the 20-year period beginning on
October 1, 1988.
(b) The total amounts of solid waste generated,
recycled, and disposed of, and the methods of solid
waste recycling and disposal used during the calendar
year prior to the year in which the report is published.
(c) An evaluation of the development and implemen-
tation of local solid waste management programs and
county and municipal recycling programs.
(d) An evaluation of the success of each county or
group of counties in meeting the municipal solid waste
reduction goal established in s. 403.706(4).
(e) Recommendations concerning existing and
potential programs for solid waste reduction and recy-
cling that would be appropriate lor local governments
and state agencies to implement to meet the require-
ments of this act.
(f) An evaluation of the markets for recycled materi-
als and the success of state, local, and private industry
efforts to enhance the markets for such materials.
(g) Recommendations to the Governor and the Leg-
islature to improve the management and recycling of
solid waste in this state.
(5) The Department of Environmental Regulation
shall develop descriptive literature to inform local gov-
ernments of the solid waste management responsibili-
ties and opportunities described in this act. The depart-
ment shall also hold at least one regional workshop in
each regional planning council region during fiscal year
1988-1989 for the purposes of:
(a) Informing the public and the private sector of the
provisions of this act: and
(b) Identifying solid waste management issues
which may need to be discussed by the 1989 Legisla-
ture.
Hlitory.—«. I. Ch. 7«-342; ». 2. en. 75-54: ». 10. cfl. 88-130.
403.706 Local government solid waste responsibil-
ities.—
(1) The governing body of a county has the respon-
sibility and power to provide for the operation of solid
waste disposal facilities to meet the needs of all incorpo-
rated and unincorporated areas of the county. Unless
otherwise approved by an interlocal agreement or spe-
cial act, municipalities may not operate solid waste dis-
posal facilities unless a municipality demonstrates by a
preponderance of the evidence that the use of a county
designated facility, when compared to alternatives pro-
posed by the municipality, places a significantly higher
and disproportionate financial burden on the citizens of
the municipality when compared to the financial burden
placed on persons residing within the county but out-
side of the municipality. However, a municipality may
construct and operate a resource recovery facility and
related onsite solid waste disposal facilities without an
interlocal agreement with the county if the municipality
can demonstrate by a preponderance of the evidence
that the operation of such facility will not significantly
impair financial commitments made by the county with
respect to solid waste management services and facili-
ties or result in significantly increased solid waste man-
agement costs to the remaining persons residing within
the county but not served by the municipality's facility.
This section shall not prevent a municipality from contin-
uing to operate or use an existing disposal facility per-
mitted on or prior to October 1, 1988. Any municipality
which establishes a solid waste disposal facility under
this subsection and subsequently abandons such facil-
ity shall be responsible for the payment of any capital
expansion necessary to accommodate the municipali-
ty's solid waste for the remaining projected useful life of
the county disposal facility. Pursuant to this section and
notwithstanding any other provision of this chapter,
counties shall have the power and authority to adopt
ordinances governing the disposal of solid waste gener-
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
ated outside of the county at the county's solid waste
disposal facility. In accordance with this section, munici-
palities are responsible for collecting and transporting
solid waste from their jurisdictions to a solid waste dis-
posal facility operated by a county or operated under a
contract with a county. Counties may charge reasonable
fees for the handling and disposal of solid waste at their
facilities. The fees charged to municipalities at a solid
waste management facility specified by the county shall
not be greater than the fees charged to other users of
the facility except as provided in s. 403.7049(4). Solid
waste management fees collected on a countywide
basis shall be used to fund solid waste management
services provided countywide.
(2) Each county shall initiate a recyclable materials
recycling program by July 1, 1989. Counties and munici-
palities are encouraged to form cooperuive arrange-
ments for implementing recycling programs. The follow-
ing requirements shall apply:
(a) Construction and demolition debris must be sep-
arated from the solid waste stream and segregated in
separate locations at a solid waste disposal facility or
other permitted site.
(b) At a minimum, a majority of the newspaper, alu-
minum cans, glass, and plastic bottles must be sepa-
rated from the solid waste stream prior to final disposal
at a solid waste disposal facility and must be offered for
recycling.
(c) Local governments are encouraged to separate
all plastics, metal, and all grades of paper for recycling
prior to final disposal and are further encouraged to
recycle yard trash and other mechanically treated solid
waste into compost available for agricultural and other
acceptable uses.
(3) Each county shall ensure, to the maximum extent
possible, that municipalities within its boundaries partici-
pate in the preparation and implementation of recycling
and solid waste management programs through interlo-
cal agreements pursuant to s. 163.01 or other means
provided by law. Nothing in a county's solid waste man-
agement or recycling program shall affect the authority
of a municipality to franchise or otherwise provide for the
collection of solid waste generated within the bounda-
ries of the municipality.
(4) A county's solid waste management and recy-
cling programs shall be designed to provide for suffi-
cient reduction of the amount of solid waste generated
within the county and the municipalities within its
boundaries in order to meet goals for the reduction of
municipal solid waste prior to the final disposal or the
incineration of such waste at a solid waste disposal facil-
ity. The goals shall provide, at a minimum, that the
amount of municipal solid waste that would be disposed
of in the absence of municipal solid waste recycling
efforts undertaken within the county and the municipali-
ties within its boundaries is reduced by at least 30 per-
cent by the end of 1994. In determining whether the
municipal solid waste reduction goal established by this
subsection has been achieved, no more than one-half
of the goal may be met with yard trash, white goods,
construction and demolition debris, and tires that are
removed from the total amount of municipal solid waste
that would be disposed of in the absence of municipal
solid waste recycling efforts.
(5) As used in this section, "municipal solid waste"
includes any solid waste, except for sludge, resulting
from the operation of residential, commercial, govern-
mental, or institutional establishments that would nor-
mally be collected, processed, and disposed of through
a public or private solid waste management service. The
term includes yard trash but does not include solid
waste from industrial, mining, or agricultural operations.
(6) The department may reduce or modify the
municipal solid waste reduction goal that a county is
required to achieve pursuant to subsection (4) if the
county demonstrates to the department that:
(a) The achievement of the goal set forth in subsec-
tion (4) would have an adverse effect on the financial
obligations of a county that are directly related to a
waste-to-energy facility owned or operated by or on
behalf of the county; and
(b) The county cannot remove normally combustible
materials from solid waste that is to be processed at a
waste-to-energy facility because of the need to main-
tain a sufficient amount of solid waste to ensure the
financial viability of the facility.
The goal shall not be waived entirely and may only be
reduced or modified to the extent necessary to alleviate
the adverse effects of achieving the goal on the financial
viability of a county's waste-to-energy facility. Nothing
in this subsection shall exempt a county from develop-
ing and implementing a recycling program pursuant to
this act.
(7) In order to assess the progress in meeting the
goal established in subsection (4), each county shall, by
October 1, 1989, and each year thereafter, report to the
department its annual solid waste management pro-
gram and recycling activities. The report by the county
must include:
(a) A description of its public education program on
recycling;
(b) The amount of solid waste disposed of at solid
waste disposal facilities, by type of waste such as yard
trash, white goods, clean debris, tires, and unseparated
solid waste;
(c) The amount and type of materials from the solid
waste stream that were recycled;
(d) The percentage of the population participating in
various types of recycling activities instituted;
(e) The percent reduction each year in municipal
solid waste disposed of at solid waste disposal facilities;
(f) A description of the recycling activities
attempted, their success rates, the perceived reasons
for failure or success, and the recycling activities which
are ongoing and most successful; and
(g) In its first report, a description of any recycling
activities implemented prior to July 1, 1989.
(8) A county or municipality may enter into a written
agreement with other persons, including persons trans-
porting solid waste on October 1, 1988, to undertake to
fulfill some or all of the county's or municipality's respon-
sibilities under this section.
(9) In the development and implementation of a cur-
bside recyclable materials collection program, a county
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
or municipality shall enter into negotiations with a
franchisee who is operating to exclusively collect solid
waste within a service area of a county or municipality
to undertake curbside recyclable materials collection
responsibilities for a county or municipality. If the county
or municipality and such franchisee fail to reach an
agreement within 60 days from the initiation of such
negotiations, the county or municipality may solicit pro-
posals from other persons to undertake curbside recycl-
able materials collection responsibilities for the county
or municipality as it may require. Upon the determination
of the lowest responsible proposal, the county or munici-
pality may undertake, or enter into a written agreement
with the person who submitted the lowest responsible
proposal to undertake, the curbside recyclable materials
collection responsibilities for the county or municipality,
notwithstanding the exclusivity of such franchise agree-
ment.
(10) In developing and implementing recycling pro-
grams, counties and municipalities shall give consider-
ation to the collection, marketing, and disposition of
recyclable materials by persons engaged in the busi-
ness of recycling on October 1,1988, whether or not the
persons were operating for profit. Counties and munici-
palities are encouraged to use for-profit and nonprofit
organizations in fulfilling their responsibilities under this
act.
(11) A county and the municipalities within the coun-
ty's boundaries may jointly develop a recycling program,
provided that the county and each such municipality
must enter into a written agreement to jointly develop a
recycling program. If a municipality does not participate
in jointly developing a recycling program with the county
within which it is located, the county may require the
municipality to provide information on recycling efforts
undertaken within the boundaries of the municipality in
order to determine whether the goal for municipal solid
waste reduction is being achieved.
(12) It is the policy of the state that a county and its
municipalities may jointly determine, through an interlo-
cal agreement pursuant to s. 163.01 or by requesting the
passage of special legislation, which local governmental
agency shall administer a solid waste management or
recycling program.
(13) The county shall provide written notice to all
municipalities within the county when recycling program
development begins and shall provide periodic written
progress reports to the municipalities concerning the
preparation of the recycling program.
(14) Nothing in this act shall be construed to prevent
the governing body of any county or municipality from
providing by ordinance or regulation for solid waste man-
agement requirements which are stricter or more exten-
sive than those imposed by the state solid waste man-
agement program and rules, regulations, and orders
issued thereunder.
(15) Nothing in this act or in any rule adopted by any
agency shall be construed to require any county or
municipality to participate in any regional solid waste
management or regional resource recovery program
until the governing body of such county or municipality
has determined that participation in such a program is
economically feasible for that county or municipality.
Nothing in this act or in any special or local act or in any
rule adopted by any agency shall be construed to limit
the authority of a municipality to regulate the disposal
of solid waste within its boundaries or generated within
its boundaries so long as a facility for any such disposal
has been approved by the department, unless the
municipality is included within a solid waste manage-
ment program created by interlocal agreement or spe-
cial or local act. If bonds had been issued to finance a
resource recovery or management program or a solid
waste management program in reliance on state law
granting to a county the responsibility for the resource
recovery or management program or a solid waste man-
agement program, nothing herein shall permit any gov-
ernmental agency to witharaw from said program if said
agency's participation is necessary for the financial fea-
sibility of the project, so long as said bonds are out-
standing.
(16) Nothing in this chapter or in any rule adopted by
any state agency hereunder shall require any person to
subscribe to any private solid waste collection service.
(17) To effect the purposes of this part, counties and
municipalities are authorized, in addition to other pow-
ers granted pursuant to this part:
(a) To contract with persons to provide resource
recovery services or operate resource recovery facilities
on behalf of the county or municipality.
(b) To indemnify persons providing resource recov-
ery services or operating resource recovery facilities for
liabilities or claims arising out of the provision or opera-
tion of such services or facilities that are not the result
of the sole negligence of the persons providing such ser-
vices or operating such facilities.
(c) To waive sovereign immunity and immunity from
suit in federal court by vote of the governing body of the
county or municipality to the extent necessary to carry
out the authority granted in paragraphs (a) and (b) of this
subsection, notwithstanding the limitations prescribed
in s. 768.28.
(18) On and after July 1,1989, each operator oi a solid
waste management facility owned or operated by or on
behalf of a county or municipality, except existing facili-
ties which will not be in use 1 year after October 1,1988,
shall weigh all solid waste when it is received. The scale
used to measure the solid waste shall conform to the
requirements of chapter 531 and any rules promulgated
thereunder.
(19) A county listed inch. 17-7, Florida Administrative
Code, which was required to submit to the department
a local resource recovery and management program
shall revise its existing local resource recovery and man-
agement program if necessary to meet the requirements
of this act.
(20) In the event the power to manage solid waste
has been granted to a special district or other entity by
special act or interlocal agreement, any duty or respon-
sibility or penalty imposed under this part on a county
or municipality shall apply to such special district or
other entity to the extent of the grant of such duty or
responsibility or imposition of such penalty. To the same
extent, such special district or other entity shall be eligi-
ble for grants or other benefits provided pursuant to this
part.
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(21) In addition to any other penalties provided by
law. a local government that does not comply with the
requirements of subsections (2) and (4) snail not be eligi-
ble for grants from the Sclid Waste Management Trust
Fund, and the department may notify the State Treas-
urer to withhold payment of all or a portion of funds pay-
able to the local government by the department from the
General Revenue Fund or by the department from any
other state fund, lo the extent not pledged to retire
bonded indebtedness, unless the local government
demonstrates that good faith efforts to meet the require-
ments of subsections (2) and (4) have been maae or that
the funds are being or will be used to finance the correc-
tion of a pollution control problem that spans jurisdic-
tional boundaries.
Hi«tory.—s. 1. cn. 74-342. s u2.cn 77-iO*: a i. cn. ??-*$', s 3. cr.. 76-32S.
$. l.cn. 79-118. s 7. cn. 00-302, s 2. cr. 07-107. s ii. c:i r -130
403.7063 Use of private services ir. solid waste
management.—In providing services or programs for
solid waste management, local governments and state
agencies should use the most cost-effective means for
the provision of services and are encouraged to contract
with private persons for any or all of such services or pro-
grams in order to assure that such services are provided
on the most cost-effective basis. Notwithstanding any
special or general law to the contrary, no county or
municipality shall adopt or enforce regulations that dis-
criminate against privately owned solid waste manage-
ment facilities because they are privately owned. How-
ever, nothing in this section shall interfere with the coun-
ty's or municipality's ability to contro1 the flow of solid
waste within its boundaries pursuant .0 this chapter.
Hlitory.—s. 62. cn. 88-130.
403.7065 Procurement of products or materials
with recycled content.—
(1) Except as provided in s. 287.045, any state
agency or agency of a political subdivision of the state
which is using state funds, or any person contracting
with any such agency with respect to work performed
under contract, is required to procure products or mate-
rials with recycled content when those products or
materials are available at reasonable prices. A decision
not to procure such items must be based on a determi-
nation that such procurement:
(a) Is not available within a reasonable period of
time; or
(b) Fails to meet the performance standards set
forth in the applicable specifications or fails to meet the
reasonable performance standards of the agency.
When the requirements of s. 287.045 are met, agencies
shall be subject to the procurement requirements of that
section for procuring products or materials with recycled
content.
(2) For the purposes of this section, "recycled con-
tent" means materials that have been recycled that are
contained in the products or materials to be procured,
including, but not limited to, paper, aluminum, glass,
and composted material. The term does not include
internally generated scrap that is commonly used in
industrial or manufacturing processes or waste or scrap
purchased from another manufacturer who manufac-
tures the same or a closely related product.
History.—s 2. e.-.. S3-2S3. «. 12. :n 53-130. s 32. en. 90-265.
403.707 Permits.—
(1) No solid waste management facility may be oper-
ated, maintained, constructed, expanded, modified, or
cicsed without an appropriate and currently valid permit
issued by the department. Effective October 1, 1989,
solid wasie construction permits issued under this sec-
tion may include any permit conditions necessary to
achieve compliance with the recycling requirements of
this act. The department shall pursue reasonable time-
frames for closure and construction requirements, con-
sidering pending federal requirements and implementa-
tion costs to the permittee. The department snail adopt
a ruie establishing performance standards for construc-
tion and closure of solid waste management facilities.
The standards snail allow flexibility in design and consid-
eration for site-specific characteristics.
(2) Except as provided in s. 403.722(6), no permit
under this section is required for the following, provided
no public nuisance or any condition adversely affecting
the environment or public health is created and the
activity does not violate other state or local laws, ordi-
nances, rules, regulations, or orders:
(a) Disposal by persons of solid waste resulting from
their own activities on their own property, provided such
waste is either from their residential property or is rocks,
soils, trees, tree remains, and other vegetative matter
which normally result from land development opera-
tions.
(b) Storage in containers by persons of solid waste
resulting from their own activities on their property,
leased or rented property, or property subject to a
homeowners or maintenance association for which the
person contributes association assessments, if the solid
waste in such containers is collected at least once a
week.
(c) Disposal by persons of solid waste resulting from
their own activities on their property, provided the envi-
ronmental effects of such disposal on groundwater and
surface waters are:
1. Addressed or authorized by a site certification
order issued under part II of this chapter or a permit
issued by the department pursuant to this chapter or
rules adopted pursuant thereto: or
2. Addressed or authorized by, or exempted from
the requirement to ootain, a groundwater monitoring
plan approved by the department.
(d) Solid waste disposal areas limited solely to the
disposal of construction and demolition debris, provided
that all such areas must be covered, graded, and vege-
tated as necessary when disposal is completed. For sit-
uations where the department determines that addi-
tional regulation of offsite disposal is appropriate, the
department shall, by December 31, 1988, initiate rule-
making to provide for a general permit pursuant to s.
403.814 for disposal of construction and demolition
debris for offsite disposal areas. The department shall
not require the applicant to publish the notice described
in s. 403.814(3). The exemption under this paragraph is
superseded by such general permit 90 days after imple-
67
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
meriting rules become effective, and shall remain super-
seded so long as these rules remain in effect. The
department is authorized to delegate its authority under
this paragraph to local governments where appropriate.
Such general permit shall include, at a minimum, the fol-
lowing requirements:
1. Public access to the disposal site is controlled
through fencing or other appropriate means until the site
is closed as provided for in subparagraph 4.
2. Provisions must be made for proper disposal of
solid waste which is not clean debris.
3. The department must have been advised of the
location of the site and must have been given permis-
sion to inspect the site during normal business hours.
4. Provisions must be made for final cover, grading,
and vegetation to prevent erosion.
(e) Disposal by persons of solid waste resulting from
their own activities on their own property, provided that
such disposal occurred prior to October 1, 1988.
(f) Disposal of solid waste resulting from normal
farming operations as defined by department rule.
(g) The use of clean debris as fill material in any area.
However, this paragraph does not exempt any person
from obtaining a dredge and fill permit from the depart-
ment. nor does it affect a person's responsibility to dis-
pose of clean debris in permitted areas if it is not to be
used as fill material.
(3) All applicable provisions of ss. 403.087 and
403.088, relating to permits and temporary operation
permits, apply to the control of solid waste management
facilities.
(4) When application for a permit for a Class I or
Class II solid waste disposal area is made, it is the duty
of the department to provide a copy of the application,
within 7 days after filing, to the water management dis-
trict having jurisdiction where the area is to be located.
The water management district shall prepare an advi-
sory report as to the impact on water resources. This
report shall contain the district's recommendations as to
the disposition of the application and shall be submitted
to the department no later than 30 days prior to the
deadline for final agency action by the department.
(5) The department may not issue a construction
permit pursuant to this part for a new solid waste landfill
within 3.000 feet of Class I surface waters.
(6) The department may issue a construction permit
pursuant to this part only to a solid waste management
facility which provides the conditions necessary to con-
trol the safe movement of wastes or waste constituents
into surface or ground waters or the atmosphere and
which will be operated, maintained, and closed by quali-
fied and properly trained personnel. Such facility shall,
if necessary:
(a) Use natural or artificial barriers which are capable
of controlling lateral or vertical movement of wastes or
waste constituents into surface or ground waters.
(b) Have a foundation or base which is capable of
providing support for structures and waste deposits and
capable of preventing foundation or base failure due to
settlement, compression, or uplift.
(c) Provide for the most economically feasible, cost-
effective, and environmentally safe control of leachate,
gas, stormwater. and disease vectors and prevent the
endangerment of public health and the environment.
ODen fires shall not be allowed to be used as a means
of disposal at a solid waste landfill.
(7) Prior to application for a construction permit, an
applicant shall designate to the department temporary
backup disposal areas or processes for the resource
recovery facility. Failure to designate temporary backup
disposal areas or processes shall result in a denial of the
construction permit.
(8) After July 1, 1990. any person who transports
biohazardous waste within the state must register with
the department prior to engaging in the transport of bio-
hazardous waste.
(9) The deDartment may refuse to issue a permit to
an applicant who Dy past conduct in this state has
repeatedly violated pertinent statutes, rules, or orders or
permit terms or conditions relating to any solid waste
management facility and who is deemed to be responsi-
ble as defined by department rule. For the purposes of
this subsection, an applicant includes the owner or oper-
ator of the facility, or if the owner or operator is a busi-
ness entity, a parent of a subsidiary corporation, a part-
ner, a corporate officer or director, or a stockholder hold-
ing more than 50 percent of the stock of the corporation.
*(10) On the same day of filing with the department of
an application for any construction or renovation permit
for the treatment of biohazardous waste, other than a
general permit, which the department may require by
rule, the applicant shall notify each city and county
within 1 mile of the facility of the filing of the application
and shall publish notice of the filing of the application.
The applicant shall publish a second notice of the filing
within 14 days after the date of filing. Each notice shall
be published in a newspaper of general circulation in the
county in which the facility is located or is proposed to
be located. Notwithstanding the provisions of chapter
50, for purposes of this section, a "newspaper of general
circulation" shall be the newspaper within the county in
which the installation or facility is proposed which has
the largest daily circulation in that county and has its
principal office in that county. If the newspaper with the
largest daily circulation has its principal office outside
the county, the notice shall appear in both the newspa-
per with the largest daily circulation in that county, and
a newspaper authorized to publish legal notices in that
county. The notice shall contain:
(a) The name of the applicant and a brief description
of the facility and its location.
(b) The location of the application file and when it is
available for public inspection.
The notice shall be prepared by the applicant and shall
comply with the following format:
Notice of Application
The Department of Environmental Regulation
announces receipt of an application for a permit from
trmmmol apoticanti tO (6ri»( dwcnplion rt pcoacl) . ThiS proposed
project will be located at docanoni in loounivi torvi .
This application is being processed and is available for
public inspection during normal business hours, 8:00
68
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F.S. 1991
Eiv\'!.-\ONM2N7A._ CC'.rrr.C...
Ch. 403
a m. to 5:00 p.rr,. Monday through FricEy, except legal
holidays, at (ne-n* p-n c" civ? * .
J(11) A permit, other than a general permit, which ine
department may require by rule, tor the treatment of bio-
hazardous waste, may not be transferred by the perm:t-
tee to any other entity, except in conformity with the
requirements of this subsection.
(a) Within 30 days after the sale or legal transfer of
a permitted facility, the permittee shall file with the
department an application for transfer of the permits on
such form as the department shall establish by rule. The
form must be completed with the notarized signatures
of both the transferring permittee and the proposed per-
mittee.
(b) The department snail approve the transfer of a
permit unless it determines that the propos'd permittee
has not provided reasonable assurances .net the pro-
posed permittee has the administrative. technical, and
financial capability to properly satisfy th3 requirements
and conditions of the permit, as determined by depart-
ment rule. The determination shall bo limited solely to
the ability of the proposed permittee to comply with the
conditions of the existing permit, and it shall not concern
the adequacy of the permit conditions. If the department
proposes to deny the transfer, it shall provide both the
transferring permittee and the proposed permittee a
written objection to such transfer together with notice of
a right to requesl a proceeding on such determination
under chapter 120.
(c) Within 90 days after receiving a properly com-
pleted application for transfer of a permit, the depart-
ment shall issue a final determination. The department
may toll the time for making a determine.Ion on the trans-
fer by notifying both the transferring permittee and the
proposed permittee that additional information is
required to adequately review the transfer request. Such
notification shall be provided within 30 days after receipt
of an application for transfer of the permit, completed
pursuant to paragraph (a). If the department fails to take
action to approve or deny the transfer within 90 days
after receipt of the completed application or within 90
days after receipt of the last item of timely requested
additional information, the transfer shall be deemed
approved.
(d) The transferring permittee is encouraged to
apply for a permit transfer well in advance of the sale or
legal transfer of a permitted facility. However, the trans-
fer of the permit shall not be effective prior to the sale
or legal transfer of the facility.
(e) Until the transfer of the permit is approved by the
department, the transferring permittee and any other
person constructing, operating, or maintaining the per-
mitted facility shall be liable for compliance with the
terms of the permit. Nothing in this section shall relieve
the transferring permittee of liability for corrective
actions that may be required as a result of any violations
occurring prior to the legal transfer of the permit.
Hlitofy.—t. I. eh. 74-342. ». 3. en. 76-307: i 14. ch. 82-101; v 63. ch. 83-216:
». 33. ch. 83-310: >. 32. en 84-336: s. l. en. 85-269: «. I. ch 85-334 ». 13. ch
88-1X; i. 1. en. 91-284: s. l. ch, 91-301.
Wot*.—Section 3. ch. 9i -284. provide* that "lt)rva eel shaO take effect October
1. 1991. end shell aopty only to those faculties lor which an application is filed on or
after such date.'
"Note.—Secton 3. ch. 91-301. provides that *|t]his aci sha# take effect Octooet
1. 199V ana shell eppfy only to those permit transfer eppi
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(b) "Beverage" means soda water, carbonated natu-
ral or mineral water, or other nonalcoholic carbonated
crinks: soft drinks, whether or net carbonated, beer, ale,
or other malt drink of whatever alcoholic content; or a
mixed wine drink or a mixed spirit drink.
(c) "Beverage container" means an airtight container
wmcn at the time of sale contains 1 gallon or less of a
beverage, or the metric equivalent of 1 gallon or less,
and which is composed of metal, plastic, or glass or a
combination thereof.
(5) The Division of Alcoholic Beverages and
Tobacco of the Department of Business Regulation may
impose a fine of not more than $100 on any person cur-
rently licensed pursuant to s. 561.14 for each violation
of the provisions of subsection (2) or subsection (3). If
the violation is of a continuing nature, each day during
which such violation occurs shall constitute a separate
and distinct offense and shall be subject to a separate
fine.
(6) The Department of Agriculture and Consumer
Services may impose a fine of not more than $100 on any
person not currently licensed pursuant to s. 561-14 for
each violation of the provisions of subsection (2) or sub-
section (3). If the violation is of a continuing nature, each
day during which such violation occurs shall constitute
a separate and distinct offense and shall be subject to
a separate fine.
(7) Fifty percent of each fine collected pursuant to
subsections (5) and (6) shall be deposited into the Solid
Waste Management Trust Fund. The balance of fines
collected pursuant to subsection (5) shall be deposited
into the Alcoholic Beverage and Tobacco Trust Fund for
the use of the division for inspection and enforcement
of the provisions of this section. The balance of fines col-
lected pursuant to subsection (6) shall be deposited into
the General Inspection Trust Fund for the use of the
Department of Agriculture and Consumer Services for
inspection and enforcement of the provisions of this sec-
tion.
(8) The Division of Alcoholic Beverages and
Tobacco and the Department of Agriculture and Con-
sumer Services shall coordinate their responsibilities
under the provisions of this section to ensure that
inspections and enforcement are accomplished in an
efficient, cost-effective manner.
(9) On or after July 1, 1990, no person shall distrib-
ute, sell, or expose for sale in this state any plastic con-
tainer product unless the product has a molded label
indicating the plastic resin used to produce the plastic
container product. The label must appear on the bottom
of the plastic container product and be clearly visible.
This label must consist of a number placed inside a trian-
gle and letters placed below the triangle. All plastic bev-
erage containers and all nonsolid food liquid containers
of less than 16 ounces and all rigid plastic containers of
less than 8 ounces shall not be required to be labeled
under this section. The numbers and letters shall be as
follows:
(a) For polyethylene terephthalate, the letters "PET"
and the number 1.
(b) For high density polyethylene, the letters "HDPE"
and the number 2.
(c) For vinyl, the letter "V" and the number 3.
(d) For low density polyethylene, the letters "LDPE"
and 1he number 4.
(e) For polypropylene, the letters "PP" and the num-
ber 5.
(f) For polystyrene, the letters "PS" and the number
6.
(g) For any other, including multilayer, the letters
"OTHER" and the number 7.
(10)(a) After January 1, 1990, no plastic bag shall be
provided at any retail outlet to any retail customer to use
for the purpose of carrying items purchased by that cus-
tomer unless the bag is composed of material which is
deqradable within 120 days. Notice of degradability
shall be printed on each bag.
(b) For purposes of this subsection, "retail outlet"
means any establishment 80 percent or more of the
income of which is from retail sales. This term does not
mean any establishment whose primary purpose is to
sell food prepared at such establishment for immediate
consumption.
(c) The owner of a retail outlet violating this subsec-
tion shall be subject to a fine of $100 per location. Each
day of a continuing violation shall be considered as a
separate violation.
(d) One-half of the fines collected pursuant to this
subsection shall be deposited in the Solid Waste Man-
agement Trust Fund. The balance of such fines shall be
deposited into the operating account of the enforcing
agency.
(11) No person shall:
(a) On or after October 1, 1990, distribute, sell, or
expose for sale in this state any product packaged in a
container or packing material manufactured with fully
halogenated chlorofluorocarbons (CFC). Producers of
containers or packing material manufactured with
chlorofluorocarbons (CFC) are urged to introduce alter-
native packaging materials which are environmentally
compatible.
(b) Distribute, sell, or offer for sale in this state any
polystyrene foam or plastic-coated paper product
which is to be used in conjunction with food for human
consumption unless such product is composed of mate-
rial which is degradable within 12 months or less. This
requirement shall be effective 1 year after such products
have been certified as safe by the United States Food
and Drug Administration and are made available in com-
mercial quantities. Determination of the degradability of
these products shall be made by the Secretary ol Envi-
ronmental Regulation based on a preponderance of evi-
dence available from reputable private and government
research agencies. Businesses and industries that use
polystyrene foam and plastic-coated paper products
that are not degradable as required by this paragraph
are encouraged to formulate a 3-year plan to research,
test, and implement production technologies that will
allow the product to meet the degradability require-
ments by January 1, 1992.
(12) The packaging of products manufactured or sold
in the state may not be controlled by governmental rule,
regulation, or ordinance adopted after March 1, 1S74.
other than as expressly provided in this act.
70
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(13) Violations of this part or rules, regulations, per-
mits, or orders issued thereunder by the department
and violations of approved local programs of counties or
municipalities or rules, regulations, or orders issued
thereunder shall be punishable by a civil penalty as pro-
vided in s. 403.141.
(14) The department or any county or municipality
may also seek to enjoin the violation of, or enforce com-
pliance with, this part or any program adopted hereun-
der as provided in s. 403.131.
(15) In accordance with the following schedule, no
person who knows or who should know of the nature of
such solid waste shall dispose of such solid waste in
landfills:
(a) Lead-acid batteries, after January 1, 1989.
Lead-acid batteries also shall not be disposed of in any
waste-to-energy facility after January 1, 1989. To
encourage proper collection and recycling, all persons
who sell lead-acid batteries at retail shall accept used
lead-acid batteries as trade-ins for new lead-acid bat-
teries.
(b) Used oil, after October 1, 1988.
(c) Yard trash, after January 1, 1992, except in
unlined landfills classified by department rule. Yard
trash that is source separated from solid waste may be
accepted at a solid waste disposal area where the area
provides and maintains separate yard trash composting
faculties.
(d) White goods, after January 1, 1990.
Prior to the effective dates specified in paragraphs
(aHd), the department shall identify and assist in devel-
oping alternative disposal, processing, or recycling
options for the solid wastes identified in paragraphs
(a)-(d).
History.—1.1. eh. 7*-341 s. 15. en. 88-130.
'403.7083 Offsite biological waste incineration
facilities; requirements.—
(1) All offsite biological waste incineration facilities
with a capacity of 500 pounds per hour or greater for
which a complete construction permit application was
received by the Department of Environmental Regula-
tion on or after June 1, 1989, and before August 31,
1989, shall comply with the following minimum require-
ments by July 1, 1991:
(a) Visible emissions shall not exceed 5 percent
opacity, except that visible emissions not exceeding 20
percent opacity are allowed for up to 3 minutes in any
1-hour period.
(b) Particulate matter emissions shall not exceed
0.030 grains per dry standard cubic foot of flue gas, cor-
rected to 7 percent oxygen.
(c) Hydrochloric acid (HCI) emissions shall not
exceed 4 pounds per hour, or shall be reduced by 90
percent by weight on an hourly average basis.
(d) Carbon monoxide (CO) emissions shall not
exceed 100 parts per million by volume, dry basis, cor-
rected to 7 percent oxygen on an hourly average basis.
(e) Each incinerator shall be designed to provide for
a residence time of at least 1 second in the secondary
or jast combustion chamber only, at no less than 1800
degrees Fahrenheit for the combustion gases. The pri-
mary chamber and stack shall not be utilized in calculat-
ing this residence time.
(f) The facility shall contain pollution control devices
and continuous monitoring equipment installed, oper-
ated, and maintained in accordance with the manufac-
turer's instructions, so as to achieve the above minimum
standards. The monitors shall record the operating
parameters for secondary or last combustion chamber
exit temperature and for oxygen.
(g) The owner shall ensure that the incinerator is
operated by an operator who has satisfactorily com-
pleted a training program offered by the equipment
manufacturer's representatives or offered by another
qualified organization.
(2) For purposes of this section "offsite biological
waste incineration facility" means one or more incinera-
tors which are operated or utilized for the disposal or
treatment of biological waste generated off-site, are
located on one or more contiguous or adjacent proper-
ties, and are owned or operated by the same person or
by persons under common control.
(3) Nothing in this section shall be construed to limit
the authority of the department to further regulate offsite
biological waste incineration facilities.
Hlttory.—s. 62. cn. 90-331.
'Note.—Excm July V 1992. pumtani to t- 62. ch. 90-331.
403.7084 Biohazardous waste tracking system.—
(1) The Department of Environmental Regulation
shall promulgate rules for a system of tracking biohazar-
dous waste:
(a) Tracking and packaging of biohazardous waste.
Such system shall, at a minimum, provide for tracking of
the transportation of the waste from the generator to the
treatment facility, including a means for providing the
generator of the waste with assurance that the waste is
received by the treatment facility, and shall include the
identification on the container of waste indicating the
entity which transports the waste.
(b) Small quantities.—The department may estab-
lish transportation criteria for generators of small quanti-
ties of biohazardous waste as defined in s. 403.703(39),
except that the department may exempt from these
criteria any person who, or facility that, transports less
than 25 pounds of such waste on any single occasion.
(c) Inspections: procedures.—Inspections may be
conducted for purposes of compliance with this section.
Any such inspection shall be commenced and com-
pleted with reasonable promptness. If the officer,
employee, or representative of the department obtains
any samples, prior to leaving the premises he shall give
to the owner, operator, or agent in charge a receipt
describing the sample obtained.
(2) Any person who fails to comply with the provi-
sions of subsection (1) is guilty of a misdemeanor of the
second degree, punishable as provided in s. 775.082 or
s. 775.083.
History.—s. 1. ch. 89-138.
403.7085 Animal parts, fats, byproducts, waste
products, vegetable oils disposal.—A commercial
establishment, excluding an establishment licensed
pursuant to chapter 509, that processes food products
for human consumption may not dispose of any animal
71
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
pans. fats, byproducts, waste products, or vegetable
oils, liauid or solid, in a landfill unless approved by the
department. The department may establish by rule
appropriate thresholds or amounts for these materials,
as well as additional subcategories of these materials,
that are exempt from this requirement. In making a
determination for exemption the department shall find
that such an exemption is not likely to be harmful to the
public health, safety, or welfare.
Hlttwy.—». 16. eft. 88-130.
403.709 Solid Waste Management Trust Fund; allo-
cation ot waste tire fee moneys; waste tire site man-
agement.—
(1) There is created the Solid Waste Management
Trust Fund, to be administered by the Department of
Environmental Regulation for the purposes of:
(a) Funding solid waste activities of the department,
such as providing technical assistance to local govern-
ments, performing solid waste regulatory and enforce-
ment functions, preparing solid waste documents, and
implementing solid waste education programs;
(b) Making grants and awards to local governments
as provided in this act:
(c) Providing funding for demonstration projects.as
provided by this act; and
(d) Providing funding for research by state universi-
ties and independent nonprofit colleges and universities
within the state which are accredited by the Southern
Association of Colleges and Schools as provided by this
act.
(2) Moneys allocated to the fund from waste tire fees
shall be accounted for separately within the fund and
shall be used in the following manner:
(a) Up to 2 percent of the account may be used to
pay department costs for administering these funds and
programs.
(b) Up to 13 percent of the account may be used to
provide funding for research and demonstration projects
relating to solving solid waste problems resulting from
waste tires.
(c) Up to 40 percent of the account may be used to
provide funds for removal of tires from an illegal waste
tire site according to priorities established by law or
department rule.
(d) To provide grants to counties to accomplish the
purposes set forth in s. 403.719. If, in any one fiscal year,
less than 45 percent of the account is used lor such
grants, any unused funds may be used by the depart-
ment for the purposes set forth in paragraph (c).
(3) The department shall recover to the use of the
fund from the site owner or the person responsible for
the accumulation of tires at the site, jointly and severally,
all sums expended from the fund pursuant to this sec-
tion to manage tires at an illegal waste tire site, except
that the department may decline to pursue such recov-
ery if it finds the amount involved too small or the likeli-
hood of recovery too uncertain. If a court determines
that the owner is unable or unwilling to comply with the
rules adopted pursuant to this subsection, the court
may authorize the department to take possession and
control of the waste tire site in order to protect the
health, safety, and welfare of the community and the
environment.
(4) The department may impose a lien on the real
property on which the waste tire site is located and the
waste tires equal to the estimated cost to bring the tire
site into compliance, including attorney's fees and court
costs. Any property owner which has such a lien
imposed may release his property from any lien claimed
under this subsection by filing with the clerk of the cir-
cuit court a cash or surety bond, payable to the depart-
ment in the amount of the estimated cost of bringing the
tire site into compliance with department rules, includ-
ing attorney's fees and court costs, or the value of the
property after the abatement action is complete, which-
ever is less.
(5) This section does not limit the use of other reme-
dies available to the department.
Hlitory.—t. I. civ 74-342. i. 17. en. 58-130: i. 3. ctv K-332.
403.7095 Solid waste management grant program.
(1) The department shall develop a grant program to
-enable counties and municipalities to operate solid
waste management recycling and education programs
to carry out the purposes of this section. Counties and
municipalities are encouraged to form interlocal agree-
ments to implement solid waste recycling and education
programs.
(2) Twenty-five percent of the funds available for
recycling and education grants in subsections (4) and
(5) shall be distributed as base portions of grants to
counties and to municipalities with populations over
50,000. The base portion of grants shall be awarded in
equal amounts to all applicants determined eligible by
the department according to the provisions of this sec-
tion.
(3) Seventy-five percent of the funds available for
recycling and education grants in subsections (4) and
(5) shall be distributed as incentive portions of grants
:based on the formula set forth in this subsection. Each
county and each municipality with a population of
greater than 50,000 may apply for the incentive portions
of recycling and education grants individually, and coun-
ties may apply individually or in conjunction with other
municipalities.
(a) The incentive portions of grants shall be avail-
able to municipalities with populations greater than
50,000 applying individually on a 50-percent matching
basis. The incentive portion of grants shall be available
to counties with unincorporated populations of greater
than 30,000 applying individually or in combination with
municipalities within the county on a 50-percent match-
ing basis, except for such grant applications meeting
the requirements of paragraph (c). Counties with popu-
lations of 30,000 or less applying individually or in combi-
nation with municipalities within the county shall not be
required to match incentive portions of grants.
(b) In all cases, the incentive portions of grants shall
be distributed based proportionately on the total popula-
tion of each county and the municipalities within the
counties applying jointly during a grant period. Counties
shall be credited only with the population of the unincor-
porated areas, and municipalities shall be credited with
their total population.
(c) However, the incentive portion of grants shall be
available without a required match to counties with
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
incorporated and unincorporated populations of greater
than 30.000 jointly applying with municipalities constitut-
ing at least 75 percent of the total incorporated popula-
tion within the county; except that when a county has
at least one municipality within it that has a population
exceeding 25 percent of the incorporated population of
the county, such county shall not be required to match
if municipalities constituting at least 75 percent of the
remaining incorporated population of such county apply
jointly with such county.
(d) Population of municipalities shall be determined
by the most recent population census determination
under s. 186.901.
(e) To effectuate the intent of this subsection, coun-
ties and municipalities shall enter into interlocal agree-
ments that determine how the grant funds shall be used.
These agreements shall be part of the joint grant appli-
cation.
(4)(a) Solid waste recycling grants shall provide
funding for capital costs and, if justified, temporary oper-
ating subsidies to assist local governments in recycling
paper, glass, plastic, construction and demolition
debris, white goods, and metals and in composting
organic materials.
(b) The department shall consider the following fac-
tors in selecting recipients of recycling program grants:
1. The likelihood of project success.
2. The availability of an appropriate site.
3. A demonstration by the local government that
the materials to be collected or processed, or both, are
not presently being recovered to the extent necessary
to meet the goal established in s. 403.706(4) and would
not be so recovered otherwise but for the proposed
recycling or composting project.
4. The business and accounting plans for the pro-
posed project.
5. The need for a new or expanded recycling pro-
gram in the area to be served relative to the needs of
other areas in the state.
6. The availability of capacity at existing permitted
solid waste management facilities that serve the area to
be served by the proposed recycling program.
7. The demonstrated municipal, community, or vol-
unteer interest in undertaking the recycling project.
(c) The department shall determine grant eligibility
after receiving an application for a recycling grant from
a local government.
(d) The department may not approve a grant unless
the appropriate county or municipality provides suffi-
cient data justifying the proposed program.
(5)(a) Solid waste education grants shall provide
funds to local governments to promote recycling, vol-
ume reduction, the proper disposal of solid wastes, and
market development for recyclable materials.
(b) The department shall consider the following fac-
tors in selecting recipients of solid waste education
grants:
1. Whether the education program has measurable
objectives.
2. The type and extent of followup or evaluation.
3. The level of commitment by local officials.
4. The extent to which the local government com-
mits its own financial resources to the education project.
5. The extent to which selection of the project con-
tributes to the achievement of a balanced distribution of
grants throughout the state.
(c) The department may not approve a grant unless
a local recycling project is planned or under way and the
proposed education project directly promotes the use of
that project.
(6) Beginning in fiscal year 1989-1990, each eligible
county or municipality, or combination thereof acting
under an interlocal agreement, which requests grants
pursuant to this section shall include the following items
as part of the grant application:
(a) A description ol the type and the weight of solid
waste generated within the county's or municipality's
boundaries and the general type and the weight of solid
waste that will be generated within the county's or
municipality's boundaries in the 20-year period begin-
ning on October 1, 1988.
(b) An identification and description of the facilities
where solid waste is being disposed of or processed,
the remaining available permitted capacity of such facili-
ties, any anticipated increases in the capacity of such
facilities.
(c) An analysis of the effect of current and planned
recycling on solid waste disposed.
(d) A description and evaluation of solid waste that
could be recycled, including, but not limited to:
1. The type and weight of solid waste that could be
recycled, giving consideration at a minimum to the fol-
lowing materials: glass, aluminum, steel and bimetallic
materials, office paper, yard trash, newsprint, corru-
gated paper, and plastics.
2. The compatibility of recycling with other solid
waste processing or disposal methods, describing
anticipated and available markets for materials collected
through recycling programs, which markets ensure that
those materials are returned to use in the form of raw
materials or products.
3. Estimated costs of and revenue from operating
and maintaining a recycling program.
4. An explanation of how anticipated solid waste
reduction or recycling will affect the type and size of any
proposed solid waste management facility.
(e) An explanation of how the recycling program
relates to the future land use elements; sanitary sewer,
solid waste, drainage, potable water, and natural
groundwater aquifer recharge elements; intergovern-
mental coordination elements; and capital improve-
ments elements of the local government comprehensive
plans prepared pursuant to part II of chapter 163 by the
county or the municipality.
(f) A description of how the county's or municipali-
ty's existing recycling programs will be continued. The
continued programs shall be based on the recycling pro-
gram initiated under s. 403.706(2) and, in addition to
yard trash, shall involve the recycling of at least the
materials required to be separated pursuant to s.
403.706(2).
(g) The recycling program shall contain at a mini-
mum:
1. An explanation of the manner in which the recy-
cling program will be implemented.
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
2. A timetable for the continued development and
implementation of the recycling program.
3. Any contracts or agreements entered into or
summaries of contemplated agreements or contracts to
develop and implement the recycling program.
4. The estimated costs of the recycling program,
including a description of the estimated avoided costs
of solid waste disposal or processing resulting from the
implementation of the recycling program.
The recycling program shall serve as the primary means
of meeting the goals established for municipal solid
waste reduction in s. 403.706(4).
(h) A description of a public education program for
the recycling program.
(i) A description for a program for the management
of special wastes. The county or municipality shall work
with the construction industry to plan for and identify
suitable construction and demolition debris disposal
sites.
(7Xa) Annual solid waste and recycling grants shall
be available to counties with populations of less than
30,000. The sum of $25,000 shall be available annually
to each eligible county from the Solid Waste Manage-
ment Trust Fund through 1993. These grants shall be
made by October 1 of each year to any county applying
to the department prior to August 1 of any given year.
(b) A county may use the grants authorized by this
subsection for purchasing or repairing solid waste
weight scales, annual solid waste management program
operating costs, planning, construction, and mainte-
nance of solid waste management facilities or recycling
facilities, solid waste management education for
employees or the public, or recycling demonstration
projects. In fiscal year 1988-1989, counties which do not
have operational weight scales at solid waste disposal
facilities operated by or for the counties must purchase
or require purchase of such scales or repair or require
repair of inoperable scales prior to using the annual
grant for any other authorized uses unless the facility will
be closed within 1 year of October 1, 1988.
(c) The department shall release the grant money
authorized by this subsection for fiscal year 1988-1989
whether or not rules have been developed to regulate
the use of these funds. However, the department shall
adopt such rules within 9 months after October 1,1988,
to implement this annual grant program.
History.—1.18. eh. 68-130.
403.712 Revenue bonds.—
(1) Revenue bonds payable from funds which result
from the revenues derived from the operation of solid
waste management facilities and from any revenues
which may be pledged under s. 14, Art. Vil of the State
Constitution, and s. 403.1834, including, without limiting
the generality of the foregoing, any legally available rev-
enues derived from public or private sources, may be
issued by the Division of Bond Finance of the Depart-
ment of General Services on behalf of the state or any
county or municipality in the manner provided by the
State Bond Act, ss. 215.57 et seq., except as otherwise
provided herein, and the Revenue Bond Act of 1953, as
amended, part I, chapter 159. Such bonds shall be
issued only to finance the cost of construction or mainte-
nance of solid waste management facilities, which cost
may include the acquisition of real property and ease-
ments therein for such purposes, and the closure of
solid waste landfills.
(2) Upon a determination by the Division of Bond
Finance of the Department of General Services that a
public competitive sale is not feasible or that it would not
be desirable to award such revenue bonds solely on the
basis of the lowest net interest cost bid, the Division of
Bond Finance may negotiate the sale of any such reve-
nue bonds after the receipt of one or more proposals,
taking into consideration the lowest total cost and such
other factors as may be deemed appropriate.
History.—a. I. cn. 7 *-342. >. 5. en. 7S-S4: i. 19. cn. 8&-t30.
403.7125 Landfill management escrow account.—
(1) As used in this section:
(a) "Landfill" means any solid waste land disposal
area for which a permit, other than a general permit, is
required by s. 403.707 that receives solid waste for dis-
posal in or upon land other than a land-spreading site,
injection well, or a surface impoundment.
(b) "Closure" means the ceasing operation of a land-
fill and securing such landfill so that it does not pose a
significant threat to public health or the environment and
includes long-term monitoring and maintenance of a
landfill.
(c) "Owner or operator" means, in addition to the
usual meanings of the term, any owner of record of any
interest in land whereon a landfill is or has been located
and any person or corporation which owns a majority
interest in any other corporation which is the owner or
operator of a landfill.
(2) Every owner or operator of a landfill is jointly and
severally liable for the improper operation and closure of
the landfill, as provided by law.
(3) The owner or operator of a landfill shall establish
a' fee, or a surcharge on existing fees or other appropri-
ate revenue-producing mechanism, to ensure the avail-
ability of financial resources for the proper closure of the
landfill. However, the disposal of solid waste by persons
on their own property, as described in s. 403.707(2), is
exempt from the provisions of this section.
(a) The revenue-producing mechanism must pro-
duce revenue at a rate sufficient to generate funds to
meet state and federal landfill closure requirements.
(b) The revenue shall be deposited in an interest-
bearing escrow account to be held and administered by
the owner or operator. The owner or operator shall file
with the department an annual audit of the account. The
audit shall be conducted by a certified public account-
ant and shall be filed no later than December 31 of each
year. Failure to collect or report such revenue, except as
allowed in subsection (4), is a noncriminal violation pun-
ishable by a fine of not more than $5,000 for each
offense. The owner or operator may make expenditures
from the account and its accumulated interest only for
the purpose of landfill closure and. if such expenditures
do not deplete the fund to the detriment of eventual clo-
sure, for planning and construction of resource recovery
or landfill facilities. Any moneys remaining in the account
after paying for proper and complete closure, as deter-
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
mined by the department, shall, if the owner or operator
does not operate a landfill, be deposited by the owner
or operator into the general fund of the local government
of jurisdiction.
1. ch. 83-293; >. 20. ch. B8-130.
403.714 Duties of state agencies.—
(1) It shall be the duty of each state agency, the judi-
cial branch of state government, and the State Univer-
sity System, by September 1, 1989, to:
(a) Establish a program, in cooperation with the
Department of Environmental Regulation and the
Department of General Services, for the collection of all
recyclable materials generated in state offices through-
out the state, including, at a minimum, aluminum, high-
grade office paper, and corrugated paper.
(b) Provide procedures for collecting and storing
recyclable materials, containers for storing materials,
and contractual or other arrangements with buyers of
the recyclable materials.
(c) Evaluate the amount of recyclable material recy-
cled and make all necessary modifications to said recy-
cling program to ensure that all recyclable materials are
effectively and practicably recycled.
(d) Establish and implement, in cooperation with the
Department of Environmental Regulation and the
Department of General Services, a solid waste reduction
program for materials used in the course of agency oper-
ations. The program shall be designed and implemented
to achieve the maximum feasible reduction of solid
waste generated as a result of agency operations.
(2) The Department of Commerce shall assist and
encourage the recycling industry in the state. Assist-
ance and encouragement of the recycling industry shall
include, but is not limited to:
(a) Identifying and analyzing, in cooperation with the
Department of Environmental Regulation, components
of the state's recycling industry and present and poten-
tial markets for recyclable materials in this state, other
states, and foreign countries;
(b) Providing information on the availability and ben-
efits of using recycled materials to businesses and
industries in the state; and
(c) Distributing any material prepared in implement-
ing this section to the public, businesses, industries,
local governments, or other organizations upon request.
By September 1, 1989, and every other year thereafter,
the Department of Commerce shall prepare a report
assessing the recycling industry and recyclable materi-
als markets in the state.
(3) The Department of Agriculture and Consumer
Services shall investigate the potential markets for com-
posted materials and shall submit its findings to the
Department of Environmental Regulation for the waste
registry informational program administered by the
department in order to stimulate absorption of available
composted materials into such markets.
(4) All state agencies, including, but not limited to,
the Department of Transportation, the Department of
Natural Resources, and the Department of General Ser-
vices and local governments, are required to procure
compost products when they can be substituted for,
and cost no more than, regular soil amendment prod-
ucts, provided the compost products meet all applicable
state standards, specifications, and regulations. This
product preference shall apply to, but not be limited to,
the construction of highway projects, road rights-of-
way. highway planting projects, recurvation and ero-
sion control programs, and other projects.
(5)(a) The Department of Education, in cooperation
with the State University System and the Department of
Environmental Regulation, shall develop, distribute, and
encourage the use of guidelines for the collection of
recyclable materials and for solid waste reduction in the
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
state system of education. At a minimum, the guidelines
shall address solid waste generated in administrative
offices, classrooms, dormitories, and .cafeterias. The
guidelines shall be developed by September 1, 1989.
(b) In order to orient students and their families to
the recycling of waste and to encourage the participa-
tion of schools, communities, and families in recycling
programs, the school board of each school district in the
state shall provide a program of student instruction in
the recycling of waste materials. The instruction shall be
provided at both the elementary and secondary levels
of education.
(c) The Department of Education is directed to
develop, from funds appropriated for environmental edu-
caiion. curriculum materials and resource guides for a
recycling awareness program for instruction at the ele-
mentary, middle, and high school levels.
History.—«. 2. cn. 74-342: « 8S. cn. 79-66: t. 21. cn. 88-1X.
403.7145 Capitol recycling demonstration area.—
The Capitol and the House and Senate office buildings
constitute the Capitol recycling demonstration area. The
Florida House of Representatives, the Florida Senate,
and the Office of the Governor, and each Cabinet officer
who heads a department that occupies office space in
the Capitol, shall, by January 1, 1989, institute a recy-
cling program for their respective offices in the House
and Senate office buildings and the Capitol. Provisions
shall be made to collect and sell wastepaper and empty
aluminum beverage cans generated by employee activi-
ties in these offices. The collection and sale of such
materials shall be coordinated with Department of Gen-
eral Services recycling activities to maximize the effi-
ciency and economy of this program. The Governor, the
Speaker of the House of Representatives, the President
of the Senate, and the Cabinet officers may authorize
the use of proceeds from recyclable material sales for
employee benefits and other purposes, in order to pro-
vide incentives to their respective employees for partici-
pation in the recycling program. Such proceeds may
also be used to offset any costs of the recycling pro-
gram.
History.—i. 22. cn. 88-130.
403.715 Certification of resource recovery or recy-
cling equipment—For purposes of implementing the
tax exemptions provided by s. 212.08(5)(e) and (7)(p),
the department shall establish a system for the examina-
tion and certification of resource recovery or recycling
equipment. Application for certification of equipment
shall be submitted to the department on forms pre-
scribed by it which include such pertinent information as
the department may require. The department may
require appropriate certification by a certified public
accountant or professional engineer that the equipment
for which these exemptions are being sought complies
with the exemption criteria set forth in s. 2l2.08(5){e)
and (7)(p). Within 30 days after receipt of an application
by the department, a representative of the department
may inspect the equipment. Within 30 days after such
inspection, the department shall issue a written decision
granting or denying certification.
History.—t. 4. ctv 76-329: v 29. eh. 87-6. t. 23. ch 68-IX
403.716 Training of operators of solid waste man-
agement facilities.—
(1) The Department of Environmental Regulation
shall establish qualifications for, and encourage the
development of training programs for, operators of land-
fills, coordinators of local recycling programs and opera-
tors of other solid waste management facilities.
(2) The department shall work with accredited com-
munity colleges, vocational technical centers, state uni-
versities, and private institutions in developing educa-
tional materials, courses of stufly, and other such infor-
mation to be made available for persons seeking to be
trained as operators of solid waste management facili-
ties.
(3) A person may not perform the duties of an opera-
tor of a landfill after July 1, 1991. unless he has com-
pleted an operator training course approved by the
department or he has qualified as an interim operator in
compliance with requirements established by the
department by rule. An owner of a landfill may not
employ any person to perform the duties of an operator
unless such person has completed an approved landfill
operator training course or has qualified as o.n interim
operator in compliance with requirements established
by the department by rule. The department may estab-
lish by rule operator training requirements for other solid
waste management facilities and facility operators.
(4) The department may adopt rules and minimum
standards to effectuate the provisions of this section
and to ensure the safe, healthy, and lawful operation of
solid waste management facilities in this state. The
department may establish by rule various classifications
for operators to cover the need for differing levels of
training required to operate various types of solid waste
management facilities due to different operating require-
ments at such facilities.
(5) For purposes of this section, the term "operator"
means any person, including the owner, who is princi-
pally engaged in, and is in charge of, the actual opera-
tion, supervision, and maintenance of a solid waste man-
agement facility and includes the person in charge of a
shift or period of operation during any part of the day.
History.—» 39. eft. 88-130: ». 63. ch. 90-331: s. 93. cn. 91-221.
403.7165 Applications Demonstration Center for
Resource Recovery from Solid Organic Materials.—
(1) The Applications Demonstration Center for
Resource Recovery from Solid Organic Materials is
hereby created, which shall be operated to demonstrate
and evaluate advanced low-cost technologies for treat-
ment of solid waste and improvement of water quality
that were developed from research in the state for treat-
ing municipal solid waste and wastewater while produc-
ing methane gas and other beneficial products, which
research was funded by the United States Department
of Energy, the Environmental Protection Agency, the
Gas Research Institute, United Gas Pipeline, Southern
California Edison, and the State of Florida, and from simi-
lar research and development programs in this state and
elsewhere directed toward developing resource recov-
ery technologies applicable to brewery wastes, food-
processing residues, municipal wastes, and other indus-
trial organic wastes that threaten the quality of the envi-
ronment in this state.
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(2) The demonstration center shall use existing
wastewater treatment channels and test-beds with
engineered anaerobic digester devices, sludge, organic
municipal solid waste, energy crops, and associated
lands in cooperation with Reedy Creek Energy Services,
Inc., the manager of the land and treatment plant, and
the Gas Research Institute, the owner ol the anaerobic
digestion system.
(3) The Institute of Food and Agricultural Sciences
at the University of Florida shall operate the demonstra-
tion center in cooperation with Reedy Creek Energy Ser-
vices, Inc.
(4) The Florida Cooperative Extension Service shall
conduct workshops at the Applications Demonstration
Center for Resource Recovery from Solid Organic Mate-
rials to demonstrate applicable technologies to munici-
pal, county, and industrial waste managers:
(a) For reducing the potential for eutrophication in
offsite waterbodies and the adverse effects associated
with conventional ways of treating solid organic wastes;
(b) For using energy crops to extract nutrients from
wastewater and sludges spread on land: and
(c) For producing methane gas, compost, and other
useful products in the process of managing wastes.
(5) There is hereby created a program advisory com-
mittee consisting of seven members to advise the Insti-
tute of Food and Agricultural Sciences in the operation
of the Applications Demonstration Center for Resource
Recovery from Solid Organic Materials. The Department
of Environmental Regulation, the Department of Natural
Resources, and the Department of Community Affairs
shall each appoint a representative to :-erve as a mem-
ber of the advisory committee. The Dean of the Cooper-
ative Extension Service and the Director of Energy
Extension Programs at the University of Florida shall
appoint the other four members of the advisory commit-
tee for terms not exceeding 4 years.
Minor/.—•. 61. ch. 88-130-. t. 13, en. 91-113.
403.717 Waste tire and lead-acid battery require-
ments.—
(1) For purposes of this section and ss. 403.718,
403.7185, and 403.719:
(a) 'Department" means the Department of Environ-
mental Regulation.
(b) "Motor vehicle" means an automobile, motorcy-
cle, truck, trailer, semitrailer, truck tractor and semitrailer
combination, or any other vehicle operated in this state,
used to transport persons or property and propelled by
power other than muscular power, but the term does not
include traction engines, road rollers, such vehicles as
run only upon a track, bicycles, mopeds, or farm tractors
and trailers.
(c) "Tire" means a continuous solid or pneumatic rub-
ber covering encircling the wheel of a motor vehicle.
(d) 'Waste tire" means a whole tire that is no longer
suitable for its original intended purpose because of
wear, damage, or defect.
(e) 'Waste tire collection center" means a site where
used or waste tires are collected from the public prior
to being offered for recycling and where fewer than
1,000 tires are kept on the site on any given day.
(f) "Waste tire processing facility" means a site
where equipment is used to recapture reusable byprod-
ucts from waste tires or to cut, burn, or otherwise alter
waste tires so that they are no longer whole. The term
includes mobile waste tire processing equipment.
(g) "Waste tire site" means a site at which 1,000 or
more whole tires are accumulated outdoors.
(h) "Lead-acid battery" means those lead-acid bat-
teries designed for use in motor vehicles, vessels, and
aircraft, and includes such batteries when sold as a
component part of a motor vehicle, vessel, or aircraft,
but not when sold to recycle components.
(2) The owner or operator of any waste tire site shall,
within 6 months after October 1, 1988, provide the
department with information concerning the site's loca-
tion, size, and the approximate number of waste tires
that are accumulated at the site and shall initiate steps
to comply with subsection (3).
(3)(a) A person may not maintain a waste tire site
unless such site is:
1. An integral part of the person's permitted waste
tire processing facility; or
2. Used for the storage of waste tires prior to pro-
cessing and is located at a permitted solid waste man-
agement facility.
(b) It is unlawful for any person to dispose of waste
tires or processed tires in the state except at a permitted
solid waste management facility. Collection or storage
of waste tires at a permitted waste tire processing facil-
ity or waste tire collection center prior to processing or
use does not constitute disposal, provided that the col-
lection and storage complies with rules established by
the department.
(c) Waste tires may not be deposited in a landfill as
a method of ultimate disposal.
(d) A person may not contract with a waste tire col-
lector for the transportation, disposal, or processing of
waste tires unless the collector is registered with the
department or exempt from requirements provided
under this section.
(4) The department shall adopt rules to carry out the
provisions of this section and ss. 403.718 and 403.719.
Such rules shall:
(a) Provide for the administration of a waste tire pro-
cessing facility permit, the fee for which may not exceed
$250 annually:
(b) Provide for the administration or revocation of
waste tire collector registrations and collection center
permits, the fees for which may not exceed $250 annu-
ally;
(c) Set standards for waste tire processing facilities
and associated waste tire sites, waste tire collection
centers, waste tire collectors, and set standards for the
storage of waste tires and processed tires, including
storage indoors;
(d) Establish procedures for administering the waste
tire grants program and issuing grants;
(e) Authorize the final disposal of waste tires at a
permitted solid waste disposal facility provided the tires
have been cut into sufficiently small parts to assure their
proper disposal; and
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ENVIRONMENTAL CONTROL
F.S. 1991
(f) Allow waste tire material which has been cut into
sufficiently small parts to be used as daily cover material
'or a landfill.
(5) A permit is not required for indoor tire storage or
for:
(a) A tire retreading business where fewer than
1,000 waste tires are kept on the business premises;
(b) A business that, in the ordinary course of busi-
ness, removes tires from motor vehicles if fewer than
1.000 of these tires are kept on the business premises;
or
(c) A retail tire-selling business which is serving as
a waste tire collection center if fewer than 1,000 waste
tires are kept on the business premises.
(6)(a) The department shall encourage the voluntary
estaDlishment of waste tire collection centers at retail
tire-selling businesses, waste tire processing facilities,
and solid waste disposal facilities, to be open to the pub-
lic for the deposit of used and waste tires.
(b) The department is authorized to establish an
incentives program for individuals to encourage them to
return their used or waste tires to a waste tire collection
center. The incentives used by the department may
involve the use of discount or prize coupons, prize draw-
ings, promotional giveaways, or other activities the
department determines will promote collection, reuse,
volume reduction, and proper disposal of used or waste
tires.
(c) The department may contract with a promotion
company to administer the incentives program.
(7) By October 1, 1990, the department shall take
appropriate safety measures or ensure that appropriate
safety measures are underway at each waste tire site
containing 150,000 or more tires to protect the health,
safety, and welfare of the community and the environ-
ment. Such measures shall include, but are not limited
to. breaking the tire piles into a series of smaller piles
with sufficiently wide fire breaks; assuring an adequate
nearby water supply to provide a water source in the
event of fire; requiring an emergency preparedness
manual on-site; and requiring mosquito control. The pur-
chase of services by the department to provide the
safety measures at waste tire sites by October 1, 1990,
shall not be subject to chapter 287.
(8) By October 1, 1990, the department, or the
department in cooperation with local government, shall
seek proposals to demonstrate three or more innovative
technologies for the disposal of waste tires at one or
more sites containing 150,000 or more tires, funded from
moneys allocated from waste tire fees pursuant to s.
403.709(2). The department shall award contracts for
these projects by January 1,1991, and shall give priority
to the processing of any required permits needed for the
implementation of project activities. Following a determi-
nation by the department that the projects adequately
demonstrate the ability of the innovative technology to
dispose of waste tires in an environmentally safe, cost-
effective, and efficient manner, such technologies shall
be approved for additional funds from funds allocated
from waste tire fees pursuant to s. 409.709(2) in accord-
ance with the request for proposals and the agreement
negotiated between the vendor and the department and
may be approved for additional project sites funded
from moneys allocated from waste tire fees pursuant to
s. 403.709(2)(c) or (d).
Hlitonr.—I 4i.cn. 88-130. ». 6. Ov S9-171: i. 4. eft. 90-332. s. 120. 01.9i-i 12.
403.718 Waste tire fees.—
'(1) For the privilege of engaging in business, a fee
for each new motor vehicle tire sold at retail is imposed
on any person engaging in the business of making retail
sales of new motor vehicle tires within this state. For the
period January 1, 1989, through December 31, 1989,
such fee shall be imposed at the rate of 50 cents for each
new tire sold. The fee imposed under this section shall
be stated separately on the invoice to the purchaser.
Beginning January 1, 1990, and thereafter, sucn fee
shall be imposed at the rate of $1 for each new tire sold.
The fee imposed shall be paid to the Department of Rev-
enue on or before the 20th day of the month following
the month in which the sale occurs. For purposes of this
section, a motor vehicle tire sold at retail includes such
tires when sold as a component part of a motor vehicle.
The terms "sold at retail" and "retail sales" do not include
the sale of new motor vehicle tires to a person solely for
the purpose of resale provided the subsequent retail
sale in this state is subject to the fee. This fee does not
apply to recapped tires. Such fee shall be subject to all
applicable taxes imposed in part I of chapter 212.
(2) The fee imposed by this section shall be reported
to the Department of Revenue. The payment shall be
accompanied by such form as the Department of Reve-
nue may prescribe. The proceeds of the waste tire fee.
less administrative costs, shall be transferred by the
Department of Revenue into the waste tire account
within the Solid Waste Management Trust Fund. For the
purposes of this section, 'proceeds' of the fee shall
mean all funds collected and received by the depart-
ment hereunder, including interest and penalties on
delinquent fees. The amount deducted for the costs of
administration shall not exceed 3 percent of the total rev-
enues collected hereunder and shall be only those costs
solely and directly attributed to the fee.
(3)(a) The Department of Revenue shall administer,
collect, and enforce the fee authorized under this sec-
tion pursuant to the same procedures used in the admin-
istration, collection, and enforcement of the general
state sales tax imposed under chapter 212, except as
provided in this section. The provisions of this section
regarding the authority to audit and make assessments,
keeping of books and records, and interest and penal-
ties on delinquent fees shall apply. The fee shall not be
included in the computation of estimated taxes pursuant
to s. 212.11 nor shall the dealer's credit for collecting
taxes or fees in s. 212.12 apply to this fee.
(b) The Department of Revenue, under the applica-
ble rules of the 'Career Service Commission, is author-
ized to employ persons and incur other expenses for
which funds are appropriated by the Legislature. The
department is empowered to adopt such rules and shall
prescribe and publish such forms as may be necessary
to effectuate the purposes of this section. The depart-
ment is authorized to establish audit procedures and to
assess delinquent fees.
Hlitonr.—«. 42. ch. 88-130.1. 7. ch. 89-171;«. 17. ch. 89-324: t. 33. ch. 90-132:
a. I2l.cn. 91-112.
78
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
'Nmt.— Socloo u. ch 69-171. pro*aes trial 11Jfvo Eaecuiive Directc ol th«
Oepenment o' Rov»nu# is he*eOy tutnonioa to afloat emergency rules pursuant to
9 '20.54{9). Fk>«oa Statutes. lor purposes o< impiemeniing ma applicable provisions
o' try4 act Puta of tne Department of Revenue 'elated to ano >n furtherance ol the
orderly implementation of the applicable provisions ot Ihis act shall not be subject
to s 120 M(17), FlorOa Statutes, drawoul proceeding. Dot. once adopted. shall be
suDject to s 120.56, Florida Statutes. invalidity challenge Such rules shall be
A0001M Dy the Governor and Cabinet aAO shall become elective upon filing with
the Oepenmeni of State, notwithstandng ine provisons of s. 12054(13). Fkyioa
Statutes.'
•Note.—Sec ten 72. ch. 86-163. transferred "the statutory po*er«. Out*# and lunc-
i«n$. reoords. and property of the Career Service Commission' lo the Pubic Employ-
ees Rotations Commission.
M03.7185 Lead-acid battery feea.—
(1) For the privilege of engaging in business, a fee
for each lead-acid battery sold at retail is imposed on
any person engaging in the business of making retail
sales of lead-acid batteries within this state. Beginning
October 1, 1989, and thereafter, such fee shall be
imposed at the rate of $1.50 for each lead- acid battery
sold. However, the fee shall not be imposed on any bat-
tery which has previously been taxed pursuant to s.
206.9935(2), provided the person claiming exemption
from the tax can document payment of such tax. The fee
imposed shall be paid to the Department of Revenue on
or before the 20th day of the month following the calen-
dar month in which the sale occurs. The department
may authorize a quarterly return under the conditions
described in s. 212.11(1)(c). A dealer selling motor vehi-
cles, vessels, or aircraft at retail can purchase lead-acid
batteries exempt as a sale for resale by presenting a
sales tax resale certificate. However, if a dealer thereaf-
ter withdraws any such battery from inventory to put into
a new or used motor vehicle, vessel, or aircraft for sale,
to use on his own motor vehicle, vessel, or aircraft, to
give away, or any purpose other tha.' for resale, the
dealer will owe the fee at the time the battery is with-
drawn from inventory. If the dealer sells the battery at
retail, that sale will be subject to the fee. If the dealer
sells it to a purchaser who presents him a sales tax
resale certificate, the dealer will owe no fee. The terms
"sold at retail' and 'retail sales' do not include the sale
of lead-acid batteries to a person solely for the purpose
of resale; however, a subsequent retail sale in this state
is subject to the fee. Such fee shall be subject to all
applicable taxes imposed in part I of chapter 212. The
provisions of s. 212.07(4) shall not apply to the provi-
sions of this section. When a sale of a lead-acid battery,
upon which the fee has been paid, is canceled or the
battery is returned to the seller, and the sale price,
taxes, and fees are refunded in full to the purchaser, the
seller may take credit for the fee previously paid. If,
instead of refunding the purchase price of the battery,
the customer is given a new battery in exchange for the
returned battery, the dealer cannot take credit for the
fee on the returned battery, but no fee is due on the new
battery that is given in exchange. However, no credit
shall be taken by the dealer for returns resulting in par-
tial refunds or partial credits on purchase of replacement
batteries.
(2) The fee imposed by this section shall be reported
to the Department of Revenue. The payment shall be
accompanied by such form as the Department of Reve-
nue may prescribe. The proceeds of the lead-acid bat-
tery fee, less administrative costs, shall be transferred
by the Department of Revenue into the Water Quality
Assurance Trust Fund. For the purposes of this section,
"proceeds" of the fee shall mean all funds collected ana
received by the department hereunder, including inter-
est and penalties on delinquent fees. The amount
deducted for the costs of administration shall not
exceed 3 percent of the total revenues collected hereun-
der and shall be only those costs solely and directly attri-
buted to the fee.
(3)(a) The Department of Revenue shall administer,
collect, and enforce the fee authorized under this sec-
tion pursuant to the same procedures used in the admin-
istration, collection, and enforcement of the general
state sales tax imposed under chapter 212. except as
provided in this section. The provisions of chapter 212
regarding the authority to audit and make assessments,
keeping of books and records, and interest and penal-
ties on delinquent fees shall apply. The fee shall not be
included in the computation of estimated taxes pursuant
to s. 212.11, nor shall the dealer's credit for collecting
taxes or fees in s. 212.12 or the exemptions in chapter
212 apply to this fee.
(b) The Department of Revenue is authorized to
employ persons and incur other expenses for which
funds are appropriated by the Legislature. The depart-
ment is empowered to adopt such rules and shall pre-
scribe and publish such forms as may be necessary to
effectuate the purposes of this section. The department
is authorized to establish audit procedures and to
assess delinquent fees.
Hlttory,—• . 8. eft. 89-171 ». 3*. ch. 90-131 s. 122. cn. 91-112.
'Note.—Section 14. ch. 89-171, providee ihgi *{t]he E*ecutrve Director of the
Department ot Revenue is horetry authorized to adopt emergency rules pursuant to
9.120.54(9), Flonda Statutes, tor purpose* of implementing the applicable provuons
of this act. Rules of the Department of Revenue related to ana in furtherance of the
orderly moiementaten of the applicable provisory of tnrs act shafl not be subject
to a. 120.54(17). Florida Statute*, (frawout proceeding, but. once adooted. shaD be
subject to •. 120.56. Florida Statutes, tnvaitiity challenge. Such rules shao be
adooted by trie Governor and Cabinet and that! become effective uoon fibng with
the Department of State, notwithstanding the provisory of a. 120.54(13}. Florida
Statutes.*
403.719 Waste tire grants.—
(1) The department shall, by July 1. 1989, establish
a program to make grants to counties which desire, indi-
vidually or collectively, to:
(a) Construct or operate, or contract for the con-
struction or operation of, a waste tire processing facility
and equipment purchases therefor;
(b) Contract for a waste tire processing facility ser-
vice within or outside the county or state;
(c) Remove or contract for the removal of waste tires
from the county, region, or state;
(d) Perform or contract for the performance of
research designed to facilitate waste tire recycling;
(e) Establishing waste tire collection centers at solid
waste disposal facilities or waste tire processing facili-
ties; or
(<) Provide incentives for establishing privately oper-
ated waste tire collection centers for the public.
(2) Each county shall be eligible for a pro rata share,
based on population, of the available funds in the waste
tire account. Counties may join together, pooling their
financial resources, when utilizing their grants for the
purposes described in subsection (1).
(3) The department shall provide technical assist-
ance, upon request, to a county or groups of counties
desiring assistance in applying for waste tire grants or
79
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
choosing a method of waste tire management which
would be an eligible use of the grant funds.
HI»!ory.—3 «. cn. 88-130.
'403.7195 Waste newsprint disposal fee3.—
(1) On and after January 1, 1989, there is hereby
imposed upon every producer or publisher within the
state a product waste disposal fee of 10 cents per ton
of newsprint consumed. The waste disposal fee
imposed by this section shall be collected from produc-
ers or publishers based upon the total weight of news-
print actually consumed in their publications.
(2) The product waste disposal fee imposed by this
section shall be reported and paid to the Department of
Revenue quarterly. A credit of 10 cents per ton of news-
print against the fee obligation may be taken by the pro-
ducer or publisher for overruns or such similar products
not actually circulated or delivered. The credit of 10
cents per ton is also allowed against the fee obligation
for each ton of recycled newsprint used in publication of
products. The payment shall be accompanied by such
form as the Department of Revenue may prescribe. The
proceeds of the product waste disposal fee collected
pursuant to this section, less administrative costs, shall
be transferred to the Solid Waste Management Trust
Fund. For the purposes of this section, "proceeds" of the
fee shall mean ail funds collected and received by the
department hereunder, including interest and penalties
on delinquent fees. The amount deducted for the costs
of administration shall not exceed 3 percent of the total
revenues collected hereunder and shall be only for those
costs solely and directly attributable to the fee.
(a) The Department of Revenue shall administer,
collect, and enforce the fee authorized under this sec-
tion pursuant to the same procedures used in the admin-
istration, collection, and enforcement of the general
state sales tax imposed under chapter 212, except as
provided in this section. The provisions of this section
regarding the authority to audit and make assessments,
keeping of books and records, and interest and penal-
ties on delinquent fees shall apply. The fees shall not be
included in the computation of estimated taxes pursuant
to s. 212.11 nor shall the dealer's credit for collecting
taxes or fees provided in s. 212.12 apply to this fee.
(b) The Department of Revenue, under the applica-
ble rules of the JCareer Service Commission, is author-
ized to employ persons and incur other expenses for
which funds are appropriated by the Legislature. The
department is empowered to adopt such rules and shall
prescribe and publish such forms as may be necessary
to effectuate the purposes of this section. The depart-
ment is authorized to establish audit procedures and to
assess delinquent fees.
(3) If the Department of Environmental Regulation
determines on October 1, 1992, by the preponderance
of evidence, that newsprint sold within the state is being
recycled at a rate of 50 percent or more of the quantity
sold within the state, the product waste disposal fee on
newsprint shall be rescinded. If the department deter-
mines on that date, by a preponderance of evidence,
that newsprint sold within the state is being recycled at
a rate of less than 50 percent of the quantity sold within
the state, the product waste disposal fee on newsprint
shall be increased to 50 cents per ton and the credits
authorized by subsection (2) shall be increased to 50
cents per ton, effective October 1, 1992. If the product
waste disposal fee on newsprint is increased on Octo-
ber 1, 1992, the provisions of subsections (4) and (5)
shall also be implemented effective on October 1, 1992.
(4) Any producer or publisher using newsprint in
publications shall accept from a person for recycling pur-
poses reasonably clean newsprint previously produced,
published, or offered for sale by that producer or pub-
lisher. Publications accepted for recycling shall be
accepted at the place where they were produced or
published or at other convenient sites offered by tne pro-
ducers or publishers.
(5) The producer or publisher may claim a credit of
25 cents per ton of newsprint utilized in publications by
their facility that have been returned and made available
for recycling. Such claims shall be made quarterly to the
Department of Revenue and shall be accompanied by
such documentation of the claim as the Department of
Revenue requires.
(6) In no event shall credits pursuant to this section
exceed the fee obligation.
(7) For purposes of this section, "newsprint' means
paper, the primary use of which is for the orinting of
newspapers.
Hlatory.—• 71. cn. 88-130: s. 35. cn. 90-132.
'Not#.—Eioirm October 1.1995. pursuant to s. 71. cn. 88-130. and 19 scnrtuiwj
tor rev** by tr* Legislature.
*Nota.—Sicton 72. civ 06-163. transferred Ifte statutory powers, duties an <3 func-
tions, raoortii. and progeny of (fta Career Service Commitaton' to trw Pu&bc Emptoy-
mi flatten* Commtsaon.
1403.7197 Advance disposal fee program.—
(1) The Legislature finds that containers which are
made from plastic, glass, aluminum, plastic coated
paper, or other metals and which are improperly dis-
carded represent a significant solid waste problem in
this state. Finding a solution to litter problems involving
containers has been challenging and difficult for the
public and private sectors. The Legislature has deter-
mined that a program operated with the established
goals and implemented in phases is the most appropri-
ate way to solve problems of litter involving containers.
This act is intended to create the necessary infrastruc-
ture to help solve comprehensive solid waste manage-
ment problems facing the state over the next 5 years.
However, if the recycling facilities and programs created
under this act are not adequate to meet the legislated
recycling goals, additional mechanisms are provided to
be implemented in phases to help assure that litter prob-
lems involving containers are solved and that the reduc-
tion of the solid waste stream can be accomplished.
(2) If the Department of Environmental Regulation
determines on October i, 1992, by a preponderance of
evidence, that containers which are made of glass, plas-
tic, aluminum, plastic coated paper, or other metals and
which are sold in this state are not being recycled at a
sustained rate of 50 percent of the quantities that these
individual types of containers are sold within the state,
the advance disposal fee program created by subsec-
tion (3) shall be implemented. The requirements of this
section that apply to plastic containers shall apply indi-
vidually to the categories of plastic containers identified
in s. 403.708(9).
80
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(3)(a) If trie department makes the finding specified
in subsection (2), there shall be an advance disposal fee
of 1 cent per container charged by retail establishments
on those types of containers sold in the state.
(b) The proceeds of the advance disposal fee col-
lected pursuant to paragraph (a), less the cost of admin-
istration, shall be reported and paid quarterly and shall
be transferred into the Container Recycling Trust Fund
which is hereby created in the Department of Revenue.
For the purposes of this section, "proceeds" of the fee
shall mean all funds collected and received by the
department hereunder, including interest and penalties
on delinquent fees. The amount deducted for the costs
of administration shall not exceed 3 percent of the total
revenues collected hereunder and shall be only those
costs solely and directly attributable to the fee. The
Department of Revenue shall determine -he amount
which needs to be reserved in the Container Recycling
Trust Fund each quarter for refunds and administrative
costs. Any amount above that reserve shall be trans-
ferred quarterly to the Solid Waste Management Trust
Fund for the purposes specified therein.
(c) The Department of Revenue shall administer,
collect, and enforce the fee authorized under this sec-
tion pursuant to the same procedures used in the admin-
istration, collection, and enforcement of the general
state sales tax imposed under chapter 212 except as
provided in this section. The provisions of this section
regarding the authority to audit and make assessments,
keeping of books and records, and interest and penal-
ties on delinquent fees shall apply. The fees shall not be
included in the computation of estimated taxes pursuant
to s. 212.11, nor shall the dealer's creJit for collecting
taxes or fees provided in s. 212.12 apply to this fee.
(d) The Department of Revenue, under the applica-
ble rules of the 2Career Service Commission, is author-
ized to employ persons and incur other expenses for
which funds are appropriated by the Legislature. The
department is empowered to adopt such rules and shall
prescribe and publish such forms as may be necessary
to effectuate the purposes of this section. The depart-
ment is authorized to establish audit procedures and to
assess delinquent fees.
(4) The Department of Environmental Regulation
shall adopt rules to accomplish the following:
(a) Establishing reporting requirements necessary
to obtain necessary sales and recycling information to
implement this section and s. 403.7198;
(b) Establishing the criteria to determine whether
the 50-percent recycling rate has been achieved; and
(c) Establishing the criteria for registration of public
and private recycling centers.
(5) The information obtained for purposes of para-
graph (4)(a) relating to sales information of individual
businesses is confidential and exempt from the provi-
sions of s. 119.07(1). This exemption is subject to the
Open Government Sunset Review Act in accordance
with s. 119.14. All other records and information shall be
considered public records for purposes of chapter 119.
(6)(a) Containers for which an advance disposal fee
has been charged may be returned to recycling centers
which have registered with the department, pursuant to
department rule, for a refund on the advance disposal
fee in addition to payment for the market value of the
product from which the container is made. Unclaimed
moneys which remain in the Container Recycling Trust
Fund shall be allocated to support container recycling
programs as follows:
1. For capital assistance grants, 60 percent;
2. For litter control, 15 percent:
3. For promotion and education, 10 percent;
4. For technical assistance, 8 percent;
5. For research and development, 5 percent; and
6. For administration, 2 percent.
(b) No more than monthly, or at times determined by
rule of the Department of Revenue, operators of regis-
tered recycling centers may certify to the Department of
Revenue, on forms provided by tne Department of Reve-
nue, the amount of refunds of the advance disposal fee
which have been paid to purchasers and shall receive
a refund from the Container Recycling Trust Fund. The
Department of Revenue shall establish audit procedures
for registered recycling center operators.
(7) If the Department of Environmental Regulation
determines by October 1,1995, that containers made of
glass, plastic, aluminum, plastic coated paper, or other
metals and sold in the state are not being recycled at a
rate of 50 percent of the quantities that these individual
types of containers are sold within the state, the
advance disposal fee program created by subsection (3)
shall increase to 2 cents per container and the provi-
sions of s. 403.7198 shall be implemented. Such fees
shall not apply to those types of containers that are recy-
cled at a rate of 50 percent or more.
Hlttory.—<. 72. cfl. 88-IX. «. 2. eft. 90-74: i. 36. eh. 90-132.
'Note.—Expire* Octooer 1.1995. pursuant to 9. 72. eft. 68-130. and Is scfieduled
lor review Dy the Legislature.
'Note.—Section 72. cfi. 96-163. transferred 'the statutory powers, duties and tune-
tens. records, and property of the Career Seonce Commission* to the Puttie Employ-
ees Relations Commiseton.
1403.7198 Containers; deposit; recycling and return.
(1) DEFINITIONS.—As used in s. 403.7197 and this
section:
(a) "Container" means the individual, separate, and
sealed glass, plastic, aluminum, plastic coated paper, or
other metal can, bottle, or jar, not less than 5 ounces in
capacity and in which the contents have been sealed by
the manufacturer.
(b) "Consumer" means any person who purchases a
container for consumption of its contents with no intent
to resell such container.
(c) "Dealer" means any person in this state who
engages in the sale of containers to a consumer, and the
term includes an operator of a vending machine contain-
ing containers. This term does not include a person
licensed pursuant to chapter 509 or chapter 561 who
sells or offers for sale containers, the contents of which
are consumed on the premises; nor a common carrier in
the conduct of interstate passenger service who sells,
offers for sale, or distributes to its passengers contain-
ers, the contents of which are consumed on the prem-
ises.
(d) "Distributor" means any person who engages in
the sale of containers to a dealer in this state including
any manufacturer who engages in such sales.
81
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(e) "Manufacturer" means any person bottling, can-
ning. or otherwise filling containers for sale to distribu-
tors or dealers.
(f) "Nonrefillable container" means a container
which, after being used by a consumer, is not to be
reused as a container by a manufacturer.
(g) "Refillable container' means a container which is
intended to be reused as a container at least five times
by a manufacturer after being initially used by a con-
sumer.
(h) "Redemption center' means a business other
than a dealer or distributor which offers to redeem for
the amount of deposit any empty container.
(2) REFUND VALUE REQUIRED.—
(a) Every container sold or offered for sale in this
state shall have a refund value established by the dis-
tributor of not less than 5 cents.
(b) Each container shall have the refund value, and
the word "Florida" or the letters "Fla." clearly indicated by
embossing, by a stamp, or by a label or other device
securely fixed to any portion of the container other than
the bottom. A dealer, redemption center, or distributor
may refuse to accept from a person any empty container
which does not state such information on the container.
This subsection does not apply to containers sold by a
distributor for use by a common carrier in the conduct
of interstate passenger service.
(c) This subsection does apply to any refillable con-
tainer having a brand name permanently marked
thereon which, on the effective date of this act, has a
refund value of not less than 10 cents.
(d) The requirements of this subsection relating to
refund value shall not apply to those types o1 containers
that meet the requirements of recycling of s.
403.7197(2).
(3) CONSUMERS, DEALERS, DISTRIBUTORS, AND
VENDING MACHINE OPERATORS; REQUIRED PRAC-
TICES—
(a) Each consumer shall deposit with the dealer the
refund value of each container purchased from that
dealer. However, no deposit shall be required if the con-
tainer is sold for consumption of the beverage contained
therein on the premises.
(b) Except as provided in paragraph (d), a dealer
shall accept from any consumer or other person not a
dealer any empty, unbroken, and reasonably clean con-
tainer of the type, size, and brand sold by the dealer
within the past 60 days and shall pay in cash the refund
value of the returned container.
(c) A dealer shall inform consumers that containers
are returnable by placing a sign or shelf label, or both,
in close proximity to any sales display of containers. The
sign or label shall indicate the amount of deposit
required for each container and that the containers are
returnable. If a dealer participates in a redemption cen-
ter, the location of that redemption center shall be
posted.
(d) A dealer may limit the total number of containers
that he will accept from any one consumer in any busi-
ness day to 96 containers. The dealer may refuse to
accept containers for a period of not more than 3 hours
during any business day, provided that the hours during
which containers will not be accepted are conspicuously
posted.
(e) Each operator of a vending machine which sells
containers shall post a conspicuous notice on the vend-
ing machine indicating that a refund is available on each
container purchased and indicating where and from
whom that refund may be obtained. This paragraph
does not require vending machine operators to provide
refunds at the premises wherein such vending machines
are located.
(f) A distributor shall accept from a dealer any
empty, unbroken, and reasonably clean container of the
type, size, and brand sold by the distributor within the
past 60 days and shall pay the dealer or his agent, within
10 working days, the refund value of the container plus
a handling fee of at least 20 percent of the refund value
of each container.
(g) A distributor may refuse to accept from any per-
son who is not a dealer a quantity of fewer than 599 con-
tainers of the type, size, and brand sold by the distribu-
tor.
(h) A distributor shall not be required to pay a manu-
facturer a deposit on a nonrefillable container.
(i) Any person may establish a redemption center
and may determine what type, size, and brand of con-
tainer shall be accepted. The redemption center may
contract with a dealer or a distributor to collect and pro-
vide for the recycling of empty containers. The distribu-
tor shall accept any empty, unbroken, and reasonably
clean container of the type, size, and brand sold by the
distributor within the past 60 days and shall pay to the
redemption center, within 10 working days, the refund
value of the container, plus a handling fee of not less
than 20 percent of the refund values.
(4) DEPARTMENT OF ENVIRONMENTAL REGULA-
TION; POWERS AND DUTIES.—The Department of
Environmental Regulation shall adopt rules necessary to
administer this section, including rules for the regulation
of redemption centers. The rules shall provide that state
informational material, including, but not limited to, travel
pamphlets and road maps, printed after December 31,
1988, shall contain information related to this section.
Such informational material shall contain a statement
relating to the deposit law urging travelers to avoid litter-
ing.
(5) EDUCATIONAL MATERIALS —The Department
of Education shall incorporate information concerning
this section into educational materials distributed to pri-
mary and secondary schools within the state urging an
end to littering.
(6) PENALTY.—Any person who violates any of the
provisions of this section is guilty of a misdemeanor of
the second degree, punishable as provided in s. 775.082
or s. 775.083.
Hlttory.—M 72. 73. eft. 66-130: «. 75. eft. 91-224.
'Not*.—
A. Effective October l. 1996
B. LxpffM October 1.1995. pursuant to s. 72. ch. 66-130. and t» echeduted tar
rwtw by the L*grtl«tu?r
403.72 Identification, listing, and notification.—
(1) The department shall adopt rules which list haz-
ardous wastes and identify their characteristics and
shall establish procedures by which hazardous waste
82
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
may be identified. The department may consider ignita-
bilitv. corrosivity, reactiveness, toxicity, infectiousness,
raaioactivity. mutagenicity, carcinogenicity, teratogeni-
city, bioaccumuiative effect, and persistence and deara-
danility in nature and any other characteristics relevant
to each particular waste material.
(2) Any generator or transporter of, or any person
who owns or operates a facility that disposes of, stores,
or treats, hazardous waste which is identified or listed
by rule of the department shall, within 90 days of the
effective date of the rule, file a written notification with
the department, unless previous notification was given
to the United States Environmental Protection Agency
pursuant to federal law. The notification shall state the
location of the generator, transporter, or facility: shall
generally describe the activity engaged in; and shall
state the hazardous waste handled. The department
shall adopt and make available to the public a notifica-
tion form for this purpose.
Hlttory.—». 8. cn. 80-302: i. 8. en. 82-27.
403.721 Standards, requirements, and procedures
for generators and transporters of hazardous waste
and owners and operators of hazardous waste facili-
ties.—
(1) Persons who generate or transport hazardous
waste, or who own or operate a hazardous waste facility,
shall comply with the applicable standards, require-
ments. and procedures of this act and the rules adopted
pursuant to it.
(2) The department shall establish by rule such
standards, requirements, and procedures as are
needed to protect human health and t ie environment,
which standards, requirements, and procedures shall
apply to persons who generate or transport hazardous
waste; to persons who own or operate hazardous waste
disposal, storage, or treatment facilities; and to hazard-
ous waste disposal facilities. The department may
establish standards, requirements, and procedures
which may vary based on differences in amounts of,
types of, concentrations of, and methods of handling
hazardous waste and on differences in the size and
location of hazardous waste facilities and which may
take into account standards, requirements, and proce-
dures imposed by other laws not in conflict with this act.
Solid waste determined to be special wastes by the
United States Environmental Protection Agency shall be
regulated pursuant to this act consistent with federal
regulations for special wastes under Subtitle C of the
Resource Conservation and Recovery Act.
(3) The department, with respect to generators of
hazardous waste identified or listed pursuant to this act,
shall adopt rules governing:
(a) Recordkeeping practices that accurately identify
the quantities of such hazardous waste generated, the
constituents thereof which are significant in quantity or
in potential harm to human health or the environment,
and the method of disposal of such wastes;
(b) Labeling practices for any containers used for
the disposal, storage, or transport of such hazardous
waste which accurately identify such waste;
(c) The use of appropriate containers for such haz-
ardous waste;
(d) The furnishing of information on the general ele-
mental and chemical composition of such hazardous
waste to persons transporting, treating, storing, or dis-
posing of such wastes;
(e) The use of a manifest system to assure that all
such hazardous waste generated is designated for treat-
ment, storage, or disposal in treatment, storage, or dis-
posal facilities, other than facilities on the premises
where the waste is generated, for which a permit has
been issued; and
(f) Submission of reports and inspection of mani-
fests to describe the quantities of hazardous waste
which are identified or listed pursuant to this act and
which have been generated or transported during a par-
ticular time period to snow their disposition and certifica-
tion of the generator's efforts to reduce their amount and
toxicity,
(4) The department, with respect to transporters of
hazardous waste identified or listed pursuant to this act,
shall adopt rules governing:
(a) Liability and financial responsibility for any liabil-
ity which may be incurred in the transport of hazardous
waste;
(b) Recordkeeping concerning the source, trans-
port, and delivery of hazardous waste;
(c) The transportation of hazardous waste, requiring
that such waste be properly labeled;
(d) Compliance with the manifest system required in
paragraph (3)(e):
(e) The transportation of all such hazardous waste
only to the hazardous waste treatment, storage, or dis-
posal facilities designated by the shipper on the mani-
fest form, which facility shall be a facility holding a per-
mit; and
(f) The use of appropriate containers for transport-
ing such hazardous waste.
(5) With respect to any hazardous waste and trans-
porters of hazardous waste, which also meet the defini-
tions and criteria for hazardous materials and transport-
ers of hazardous materials regulated by the Hazardous
Materials Transportation Act, 88 Stat. 2156,49 U.S.C. ss.
1801 et seq., the department shall consider and adopt,
as appropriate, rules which are consistent with such act
and the rules adopted pursuant thereto.
(6) The department, with respect to owners and
operators of hazardous waste disposal, storage, or treat-
ment facilities, and with respect to such facilities, shall
adopt rules governing:
(a) The maintenance of records concerning all haz-
ardous wastes which are identified or listed pursuant to
this act and which are treated, stored, or disposed of
and the manner of treatment, storage, or disposal;
(b) Satisfactory reporting, monitoring, and inspec-
tion for compliance with the manifest system required in
paragraph (3)(e);
(c) The treatment, storage, or disposal of all hazard-
ous waste received by the facility pursuant to operating
methods, techniques, and practices approved by the
department;
(d) The location, design, and construction of such
hazardous waste treatment, disposal, or storage facili-
ties:
83
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(e) Contingency plans for effective action to mini-
mize unanticipated damage resulting from any accident
occurring curing the treatment, storage, or disposal of
any sucn hazardous waste;
(f) The maintenance or operation of such facilities
ana the requirement of such additional qualifications as
to ownership, continuity of operation, training for person-
nel, and financial responsibility as may be necessary or
desirable: and
(g) Compliance with s. 403.722.
(h) Corrective action at a hazardous waste facility
which shall be taken beyond a facility boundary where
necessary to protect human health and the environ-
ment, unless the owner or operator demonstrates that
despite his best efforts he was unable to obtain the nec-
essary permission to undertake such action.
1(i) Conditions on a permit which require cleanup of
releases of hazardous waste and hazardous constitu-
ents from any solid waste management unit, regardless
of when the waste was placed in the unit.
0) Groundwater monitoring, unsaturated zone moni-
toring, and corrective action requirements for land dis-
posal facilities accepting hazardous waste after July 26,
1982.
(k) The prohibition of the land disposal and storage
of certain hazardous waste based on the requirements
and criteria set forth in s. 201(g) through (j) of the Haz-
ardous and Solid Waste Amendments of 1984, Pub. L.
No. 98-616.
(7) The department shall adopt rules governing the
production, burning, marketing, sale, and distribution of
hazardous waste fuel. The department may provide for
exemptions to such rules so long as the exemptions are
no less stringent than those provided by federal law or
regulation.
HKtory.—>. B. ch. 80-302: >. 22. ch. 83-310: ». 33. ch. 86-188: ». 66. ch. 90-331.
'Note.—The directory language in s. 66. ch. 90-331, purports to amend
fpjaragraph (i) of suDtection (6) of taction 409.721 • . . *: how**f. the tail of the
amendment rat an to paragraph (i) of subnotion (6). There is no s. 403.721(8).
403.7215 Tax on gross receipts of commercial haz-
ardous waste facilities.—
(1) The owner or operator of each privately owned,
permitted, commercial hazardous waste transfer, stor-
age, treatment, or disposal facility shall, on or before
January 25 of each year, file with the chief fiscal officer
of the primary host local government a certified, nota-
rized statement. The statement shall indicate the gross
receipts from all charges imposed during the preceding
calendar year for the storage, treatment, or disposal of
hazardous waste at the facility.
(2) A 3-percent tax is hereby levied on the annual
gross receipts of a privately owned, permitted, commer-
cial hazardous waste transfer, storage, treatment, or dis-
posal facility, which tax is payable annually on or before
July 1 by the owner of the facility to the primary host
local government.
(3) All moneys received by the appropriate local gov-
ernment pursuant to subsection (2) shall be appropri-
ated and used to pay for:
(a) The costs of collecting the tax;
(b) Any local inspection costs incurred by the local
government to ensure that the facility is operated pursu-
ant to the provisions of this part and any rule adopted
pursuant thereto;
(c) Additional security costs incurred as a result of
operating the facility, including monitoring, fire protec-
tion, and police protection;
(d) Hazardous waste contingency planning imple-
mentation;
(e) Road construction or repair costs for public
roaos adjacent to and within 1,000 feet of the facility;
(f) Any other cost incurred by the local government
as a result of the operation of the facility, if all other costs
specified in paragraphs (a) through (e) of this section
have been paid; and
(g) Any other purposes relating to environmental
protection within the jurisdiction of the local govern-
ment, including, but not limited to, the estaDlishment of
a system for the collection and disposal of household,
agricultural and other types of hazaroous waste, the pro-
tection or improvement of the quality of the air or water,
or the acquisition of environmentally sensitive iands,
provided all other costs specified in this section have
been paid.
(4) The primary host local government is responsible
for regulating, controlling, administering, and enforcing
the provisions of this section.
HIMory.—1.17.ch. 83-310. >. 2*.ch. 68-130: v 33.cn. 88-333: ». 1. ch. 89-265:
t. 36. cn. 91-305.
Note.—Former a. 203.10.
403.722 Permits; hazardous waste disposal, stor-
age, and treatment facilities.—
(1) Each person who intends to construct, modify,
operate, or close a hazardous waste disposal, storage,
or treatment facility shall obtain a construction, opera-
tion, or closure permit from the department prior to con-
structing, modifying, operating, or closing the facility. By
rule, the department may provide for the issuance of a
single permit instead of any two or more hazardous
waste facility permits.
(2) Any owner or operator of a hazardous waste facil-
ity in operation on the effective date of the department
rule listing and identifying hazardous wastes shall file an
application for a temporary operation permit within 6
months after the effective date of such rule. The depart-
ment, upon receipt of a properly completed application,
shall identify any department rules which are being vio-
lated by the facility and shall establish a compliance
schedule. However, if the department determines that
an imminent hazard exists, the department may take
any necessary action pursuant to s. 403.726 to abate the
hazard. The department shall issue a temporary opera-
tion permit to such facility within the time constraints of
s. 120.60(2) upon submission of a properly completed
application which is in conformance with this subsec-
tion. Temporary operation permits for such facilities shall
be issued for up to 3 years only. Upon termination of the
temporary operation permit and upon proper application
by the facility owner or operator, the department shall
issue an operation permit for such existing facilities if the
applicant has corrected all of the deficiencies identified
in the temporary operation permit and is in compliance
with all other rules adopted pursuant to this act.
(3) Permit applicants shall provide any information
which will enable the department to determine that the
proposed construction, modification, operation, or clo-
sure will comply with this act and any applicable rules.
84
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
In no instance shall any person construct, modify, oper-
ate. or close a facility in contravention of the standards,
reoL'iremenis. or criteria for a hazardous waste facility.
Permits issued under this section may include any per-
mit conditions necessary to achieve compliance with
applicable hazardous waste rules and necessary to pro-
tect human health and the environment.
(4) The department may require, in a permit applica-
tion, submission of information concerning matters
specified in s. 403.721(6) as well as information respect-
ing:
(a) Estimates of the composition, quantity, and con-
centration of any hazardous waste identified or listed
under this act or combinations of any such waste and
any other solid waste, proposed to be disposed of,
treated, transported, or stored and the time, frequency,
or rate at which such waste is proposed to je disposed
of, treated, transported, or stored: and
(b) The site lo which such hazardous waste or the
products of treatment of such hazardous waste will be
transported and at which it will be disposed of, treated,
or stored.
(5) A permit issued pursuant to this section is not a
vested right. The department may revoke or modify any
sucn permit.
(a) Permits may be revoked for failure of the holder
to comply with the provisions of this act, the terms of the
permit, the standards, requirements, or criteria adopted
pursuant to this act, or an order of the department; for
refusal by the holder to allow lawful inspection; for sub-
mission by the holder of false or inaccurate information
in the permit application; or if necessery to protect the
public health or the environment.
(b) Permits may be modified, upon request of the
permittee, if such modification is not in violation of this
act or department rules or if the department finds the
modification necessary to enable the facility to remain in
compliance with this act and department rules.
(c) A land disposal facility operating with a tempo-
rary operation permit on October 1, 1986, must certify
compliance with groundwater monitoring and financial
responsibility requirements and must submit an applica-
tion for an operation permit by November 8,1986, or the
temporary operation permit will be terminated.
(d) A temporary operation permit for a hazardous
waste facility in existence on the date the department
began permitting facilities shall automatically terminate
on November 8, 1988.
(e) An owner or operator of a hazardous waste facil-
ity in existence on the effective date of a department rule
changing an exemption or listing and identifying the haz-
ardous wastes which require that facility to be permitted
who notifies the department pursuant to s. 403.72, and
who has applied for a permit, may continue to be issued
a temporary operation permit.
(6) A hazardous waste facility permit issued pursu-
ant to this section shall satisfy the permit requirements
of s. 403.707(1). The permit exemptions provided in s.
403.707(2) shall not apply to hazardous waste.
(7) The department may establish permit applica-
tion procedures for hazardous waste facilities, which
procedures may vary based on differences in amounts,
types, and concentrations of hazardous waste and on
differences in the size and location of facilities and which
procedures may take into account permitting proce-
dures of other laws not in conflict with this act.
(8) For permits required by this section, the depart-
ment may require that a fee be paid and may establish,
by rule, a fee schedule based on the degree of hazard
and the amount and type of hazardous waste disposed
of. stored, or treated at the facility.
(9) It shall not be a requirement for the issuance of
such a permit that the facility complies with an adopted
local government comprehensive plan, local land use
ordinances, zoning ordinances or regulations, or other
local ordinances. However, such a permit issued by the
department shall not override adopted local government
comprehensive plans, local land use ordinances, zoning
ordinances or regulations, or other local ordinances.
(10) Notwithstanding ss. 120.60(2) and 403.815:
(a) The time specified by law for permit review shall
be tolled by the request of the department for publica-
tion of notice of proposed agency action to issue a per-
mit for a hazardous waste treatment, storage, or dis-
posal facility and shall resume 45 days after receipt by
the department of proof of publication. If, within 45 days
after publication of the notice of the proposed agency
action, the department receives written notice of opposi-
tion to the intention of the agency to issue such permit
and receives a request for a hearing, the department
shall provide for a hearing pursuant to s. 120.57, if
requested by a substantially affected party, or an infor-
mal public meeting, if requested by any other person.
The failure to request a hearing within 45 days after pub-
lication of the notice of the proposed agency action con-
stitutes a waiver of the right to a hearing under s. 120.57.
The permit review time period shall continue to be tolled
until the completion of such hearing or meeting and shall
resume within 15 days after conclusion of a public hear-
ing held on the application or within 45 days after the
recommended order is submitted to the agency and the
parties, whichever is later.
(b) Within 60 days after receipt of an application for
a hazardous waste facility permit, the department shall
examine the application, notify the applicant of any
apparent errors or omissions, and request any additional
information the department is permitted by law to
require. The failure to correct an error or omission or to
supply additional information shall not be grounds for
denial of the permit unless the department timely noti-
fied the applicant within the 60-day period, except that
this paragraph does not prevent the department from
denying an application if the department does not pos-
sess sufficient information to ensure that the facility is in
compliance with applicable statutes and rules.
(c) The department shall approve or deny each haz-
ardous waste facility permit within 135 days after receipt
of the original application or after receipt of the
requested additional information or correction of errors
or omissions. However, the failure of the department to
approve or deny within the 135-day time period does
not result in the automatic approval or denial of the per-
mit and does not prevent the inclusion of specific permit
conditions which are necessary to ensure compliance
with applicable statutes and rules. If the department fails
to approve or deny the permit within the 135-day period.
85
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
the aoplicant may petition (or a writ of mandamus to
compel the cepartment to act consistently with applica-
ble regulatory requirements.
(11) Hazardous waste facility operation permits shall
be issued for no more than 5 years.
'(12) On the same day of filing with the department of
an application for a permit for the construction modifica-
tion, or operation of a hazardous waste facility, the appli-
cant shall notify each city and county within 1 mile of the
facility of the filing of the application and shall publish
notice of the filing of the application. The applicant shall
publish a second notice of the filing within 14 days after
the date of filing. Each notice shall be published in a
newspaper of general circulation in the county in wnich
the facility is located or is proposed to be located. Not-
withstanding the provisions of chapter 50, for purposes
of this section, a 'newspaper of general circulation" shall
be the newspaper within the county in which the installa-
tion or facility is proposed which has the largest daily cir-
culation in that county and has its principal office in that
county. If the newspaper with the largest daily circula-
tion has its principal office outside the county, the notice
shall appear in both the newspaper with the largest daily
circulation in that county, and a newspaper authorized
to publish legal notices in that county. The notice shall
contain:
(a) The name of the applicant and a brief description
of the project and its location.
(b) The location of the application file and when it is
available for public inspection.
The notice shall be prepared by the applicant and shall
comply with the following format:
Notice of Application
The Department of Environmental Regulation
announces receipt of an application for a permit from
ln«m» ol «ppfce»nl) to tm&l dwcnolinn of nrowett . This proposed
project will be located at riocaicni in (eoumvi (atv> .
This application is being processed and is available for
public inspection during normal business hours, 8:00
a.m. to 5:00 p.m., Monday through Friday, except legal
holidays, at Imiw «IX1 afldmn of oflc«l .
'(13) A permit for the construction, modification, or
operation of a hazardous waste facility which initially
was issued under authority of this section, may not be
transferred by the permittee to any other entity, except
in conformity with the requirements of this subsection.
(a) At least 30 days prior to the sale or legal transfer
of a permitted facility, the permittee shall file with the
department an application for transfer of the permits on
such form as the department shall establish by rule. The
form must be completed with the notarized signatures
of both the transferring permittee and the proposed per-
mittee.
(b) The department shall approve the transfer of a
permit unless it determines that the proposed permittee
has not provided reasonable assurances that the pro-
posed permittee has the administrative, technical, and
financial capability to properly satisfy the requirements
and conditions of the permit, as determined by depart-
ment rule. The determination shall be limited solely to
ihe ability ol 1he proposed permittee to comply with the
conditions of the existing permit, and it shall not concern
the adequacy of the permit conditions. If the department
proposes to deny the transfer, it shall provide both the
transferring permittee and the proposed permittee a
written objection to such transfer together with notice of
a right to request a proceeding on such determination
under chapter 120.
(c) Within 90 days after receiving a properly com-
pleted application for transfer of permit, the department
shall issue a final determination. The department may
toll the time for making a determination on the transfer
by notifying both the transferring permittee and the pro-
posed permittee that additional information is required
to adequately review the transfer request. Such notifica-
tion shall be served within 30 days after receipt of an
application for transfer of permit, completed pursuant to
paragraph (a). However, the failure of the department to
approve or deny within the 90-day time period does not
result in the automatic approval or denial of the transfer.
If the department fails to approve or deny the transfer
within the 90-day period, the applicant may petition for
a writ of mandamus to compel the department to act
consistently with applicable regulatory requirements.
(d) The transferring permittee is encouraged to
apply for a permit transfer well in advance of the sale or
legal transfer of a permitted facility. However, the trans-
fer or the permit shall not be effective prior to the sale
or legal transfer of the facility.
(e) Until the transfer of the permit is approved by the
department, the transferring permittee and any other
person constructing, operating, or maintaining the per-
mitted facility shall be liable for compliance with the
terms of the permit. Nothing in this section shall relieve
the transferring permittee of liability for corrective
actions that may be required as a result of any violations
occurring prior to the legal transfer of the permit.
Hlttrny.—i. 8. ch. 00-302; s. Z eft. 82-79: t. 4. eh. 82-122: •. 64. eft. 83-218: ».
24. cn. 83-310: >. 34. eft. 88-186: •. 19. eh. 88-333:». 2. eft. 91-284:« 2. eh. 91-301
'Not*.—Sacton 3. eft. 91-284. provide? tftn -[t)m set (ftai t*k» aflact Oct Oder
1. 1991. end full tppty onfy to (hoae feoiitiea (or wtucft an epp*«alion »»filed on or
tftr tuch 0*9.'
Wot*.—Sactxtf 3. cn. 91-301, prowO** that fijhia act shall take affect October
1. 1991. and tteJl appty only to lho»e permit trentta appUcanone filed on o> aftai
aucn dare.'
403.7221 Research, development, and demonstra-
tion permits.—
(1) The department may issue a research, develop-
ment, and demonstration permit to the owner or opera-
tor of any solid waste management facility who pro-
poses to utilize an innovative and experimental solid
waste treatment technology or process for which permit
standards have not been promulgated. Permits shall:
(a) Provide for construction and operation of the
facility for not longer than 1 year, renewable no more
than 3 times.
(b) Provide for the receipt and treatment by the facil-
ity of only those types and quantities of solid waste
which the department deems necessary for purposes of
determining the performance capabilities of the technol-
ogy or process and the effects of such technology or
process on human health and the environment.
(c) Include requirements the department deems
necessary which may include monitoring, operation,
86
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(15) Except as provided in this part, no local govern-
ment law, ordinance, or rule pertaining to the subject of
hazardous waste regulation may be more stringent than
department rules adopted under the authority of this
chapter.
(16) Local, regional, and state assessments shall be
brought up to date by sending letters to each small
quantity generator at 5-year intervals, based on the
schedule for the initial local assessments. More frequent
complete mail surveys shall not be required by the state.
However, at their option, local and regional governing
authorities may update such assessments at more fre-
quent intervals. Alternatively, the assessment rolls shall
be brought up to date before the end of the 5-year inter-
val by including the applicable names from occupational
licenses, building permits, and from not less than one
complete survey of the business pages c the county
local telephone systems. The roll shall be updated con-
tinuously thereafter in the same manner.
(17) The Legislature recognizes the expense incurred
by county governments in the proper identification and
notification of small quantity generators of hazardous
waste within their jurisdictions. When required to sup-
port the local hazardous waste assessments required
by this section, the small quantity generator notification
program required pursuant to s. 403.7234, and the
reporting requirements of s. 403.7236, a county may
impose a small quantity generator notification and verifi-
cation surcharge of up to $50 on the business or occupa-
tional license or renewal of any firm that is identified as
a small quantity generator of hazardous wastes. A
county may contract with or otherwire enter into an
agreement with the county tax collector to collect the
annual surcharge.
Hlttory.—«. 25. cn. 83-310: s. 34. ch. 84-338: >. 3. eft. 85-269: ». 11, eh. 87-374:
I. 37. cn. 91-305.
'Hot®.—The referenced promion no longer appears in tne Code of Federal Regu-
lations.
403.7226 Technical assistance by the department.
The Department of Environmental Regulation shall:
(1) Provide technical assistance to county govern-
ments and regional planning councils to ensure consis-
tency in coordinating local and regional hazardous
waste assessments as provided in s. 403.7225. In order
to ensure that each local assessment is properly pre-
pared and that all information gathered during the
assessment is uniformly compiled and documented,
each county or regional planning council shall contact
the department during the preparation of the local
assessment to receive technical assistance. Each
county and region shall follow guidelines established by
the department in order to properly prepare these
assessments.
(2) Identify short-term needs and long-term needs
for hazardous waste facilities and services for the state
on the basis of the information gathered through the
county and regional hazardous waste assessments and
other information from state and federal regulatory agen-
cies and sources. The state needs assessment must be
ongoing and must be updated when new data concern-
ing waste generation and waste management technolo-
gies become available. The department shall annually
send a copy of this assessment to the Governor and to
the Legislature with the report required by s.
403.7225(9).
Hlitory.—•. 29.
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(5) If the local government determines within 90
aays of the request that construction or modification of
the facility does not comply with such plans, ordinances,
regulations, or area or site designations pursuant 1o this
act, the person requesting the determination may
request a variance from such plans, ordinances, regula-
tions, or designations.
(6) If the variance requested by the applicant is
denied by local government or if there is no determina-
tion made by local government pursuant to subsection
(4) within 90 days of the request, or if there is no action
on the variance requested by the applicant within 90
days of the request for the variance, the person request-
ing such determination or variance may petition the Gov-
ernor and Cabinet for a variance from the local ordi-
nances. assessments, regulations, plans, or area and
site designations.
(7) The Governor and Cabinet shall grant the vari-
ance from any local ordinances, assessments, area and
site designations, regulations, or plans only if a hazard-
ous waste permit has been issued by the department
and if the Governor and Cabinet find, based upon com-
petent substantial evidence that clearly and convinc-
ingly establishes, that the facility:
(a) Will not have a significant adverse impact on the
environment, including ground and surface water
resources, of the region; and
(b) Will not have a significant adverse impact on the
economy of the region.
(8) The Governor and Cabinet shall also consider
the record of the proceeding before the local govern-
ment, when determining whether to grant a petition for
a variance from local ordinances, regulations, or plans.
(9) The Governor and Cabinet may adopt rules of
procedure that govern these proceedings.
Mtftorr-—». 6. ch. 80-302; •. 41. eft. 81-167: *. 2®. eft. 81-259:». 43. ch 83-S5:
*. 28. eft. 83-310.
403.7234 Small quantity generator notification pro-
gram.—
(1) Each county specified in s. 403.7225(10)(a), (b),
and (c) shall send by mail a letter to each small quantity
generator, as defined pursuant to federal regulations in
'40 C.F.R. part 261.5, on the January 1 preceding the
date specified in such paragraphs for completion of its
hazardous waste assessment, and the United States
Postal Service certificate of mailing shall be retained as
proof of mailing. In addition, within 14 days after a
county completes its hazardous waste assessment, the
county shall send such letter to each small quantity gen-
erator not notified on the preceding January 1. Thereaf-
ter, each county shall annually send such letter on July
1. The letter shall:
(a) Detail the legal responsibilities of the small quan-
tity generator with regard to proper waste management
practices, including penalties for noncompliance.
(b) Include a list of hazardous waste management
alternatives which are available to the small quantity
generator.
(2) Within 30 days of receipt of the letter, each small
quantity generator identified in the county assessment
shall disclose its management practices and the types
and quantities of waste to the county government.
Annually, each county shall verify the management
practices of at least 20 percent of the small quantity gen-
erators. The procedure for verification used by the
county shall be developed by rule by the department.
The Department of Environmental Regulation may also
regulate the waste management practices of small
quantity generators in order to ensure proper manage-
ment of hazardous waste in a manner consistent with
federal requirements, except as provided under s.
403.804(2).
(3) Any small quantity generator who does not com-
ply with the requirements of subsection (2) and who has
received two subsequent certified letters from the
county is subject to a fine of between $25 and $100 per
day for a maximum of 100 days. The county may collect
such fines and deposit them in its general revenue fund.
Fines collected by the county shall be used to carry out
the verification procedure established in subsection (2).
If there are excess funds after the verification procedure
has been completed, such funds shall be used for haz-
ardous and solid waste manaaement purposes only.
History.—•. 29. en. 83-310: •. 35. eh. 8*-338: •. 37. eft. 86-186: •. 12. ch. 87-374.
*Nof ¦—Th» f ff anc90 provwon no tpnqf >pp— rt in th» Cf * erf Regu-
latem.
403.7236 Local government information to be sent
to the department.—Before June 30 of any year, each
county shall transmit the following information to the
Department of Environmental Regulation regarding
activities of the preceding year:
(1) A summary of the information gathered during
the hazardous waste assessment program by each
county at the 5-year interval when it occurs:
(2) Information gathered from each small quantity
generator not notified previously: and
(3) Onsite information gathered annually.
History.—a. 30. eft. 83-310: » 4. eft. 85-269.
403.724 Rnancial responsibility.—
(1) An owner or operator of a hazardous waste facil-
ity, as a prerequisite to the operation, closure, postclo-
sure, or corrective action at a facility in the state, shall
guarantee the financial responsibility of such owner or
operator for any liability which may be incurred in the
operation of the facility and provide that, upon closure,
abandonment, or interruption of operation of the facility,
all appropriate measures are taken to prevent present
and future damage to human health, safety, and welfare:
the environment; and private and public property.
(2) Cash, the establishment of a trust fund, surety
bonds, a letter of credit, or casualty insurance, a finan-
cial test, a corporate guarantee, or a combination
thereof, may be used to satisfy the financial responsibil-
ity requirement. Any method of financial responsibility
used to satisfy this requirement shall be maintained in
the amount approved by the department and shall be
maintained until the department determines that the
waste is no longer a hazard and authorizes cancellation,
modification, or liquidation of the financial responsibility.
(3) The amount'of financial responsibility required
shall be approved by the department upon each issu-
ance, renewal, or modification of a hazardous waste
facility permit. Such factors as inflation rates and
changes in operation may be considered when approv-
90
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
testing, financial responsibility, closure, and remedial
action.
(2) The department may apply the criteria set forth
in this section in establishing the conditions o! each per-
mit without separate establishment of rules implement-
ing such criteria.
(3) For the purpose of expediting review and issu-
ance of permits under this section, the department may,
consistent with the protection of human health and the
environment, modify or waive permit application and
permit issuance requirements, except that there shall be
no modification or waiver of regulations regarding finan-
cial responsibility or of procedures established regard-
ing public participation.
(4) The department may order an immediate termi-
nation of all operations at the facility at any -ime upon a
determination that termination is necessa- / to protect
human health and the environment.
History.—a. 35. cn. 86-186: j. 80. cn. 88-130.
403.7222 Prohibition of hazardous waste landfills.
(1) As used in this section, the term "hazardous
waste landfill" means a disposal facility or part of a facil-
ity at which hazardous waste that has not undergone
treatment is placed in or on land, including an injection
well, and which is not a land treatment facility. However,
except as provided in subsection (2), in no event may
hazardous waste be disposed of through an injection
well.
(2) The Legislature declares that, due to the perme-
ability of the soil and high water table in Florida, future
hazardous waste landfills shall be prohibited. Therefore,
the Department of Environmental Regulation may not
issue a permit pursuant to s. 403.722 tor a newly con-
structed hazardous waste landfill. However, if by execu-
tive order the Governor declares a hazardous waste
management emergency, the department may issue a
permit for a temporary hazardous waste landfill. Any
such landfill shall be used only until such time as an
appropriate alternative method of disposal can be
derived and implemented. In no event shall such a per-
mit be issued for a period exceeding 6 months without
a further declaration of the Governor.
(3) Nothing in this section shall prohibit the depart-
ment from banning the disposal of hazardous waste in
other types of waste management units in a manner
consistent with federal requirements, except as pro-
vided under s. 403.804(2).
Hlttory.—t. 38. eh. 83-310:1. 36. ch. e6-!86: s. 5. cn. 89-285: s. 64. ch. 90-331.
403.7223 Waste elimination and reduction assist-
ance program.—
(1) The Legislature finds that the reduction of the
volume and toxicity of hazardous waste generated in the
state is the most environmentally, economically, and
technically efficient method of protecting the public
health and the environment from the improper manage-
ment of hazardous waste.
(2) The department shall establish a waste reduc-
tion and elimination assistance program designed to
assist all persons in reducing the amount and toxicity of
the hazardous waste generated in the state to the maxi-
mum extent possible. The waste reduction assistance
program may include, but not be limited to:
(a) The establishment of a waste reduction clearing-
house of all available information concerning waste
reduction, waste minimization, recycling programs, eco-
nomic and energy savings, and production and environ-
mental improvements;
(b) Assistance in transferring information concern-
ing waste reduction technologies through workshops,
conferences, and handbooks;
(c) Cooperation with university programs to develop
waste reduction curricula and training;
(d) Onsite technical assistance for hazardous waste
generators; and
(e) Researching and recommending incentive pro-
grams for innovative waste management and reduction
programs.
Hlttory.—a. 6. ch, 88-333
403.7225 Local hazardous waste management
assessments.—
(1) The Legislature recognizes that there is a need
for estimating the amount, type, and sources of hazard-
ous waste generated in the state. There is also a need
for facilitating proper storage, transportation, volume
reduction, treatment, resource recovery, and disposal of
these wastes. Proper management of these wastes is
imperative in order to protect the public health, safety,
and welfare and the environment.
(2) The Department of Environmental Regulation
shall establish guidelines for local hazardous waste
management assessments and shall specify a standard
format. The local hazardous waste management assess-
ments shall include, but not be limited to, the identifica-
tion of the following:
(a) All hazardous waste generators within the
county, including small quantity generators as defined
pursuant to federal regulations under '40 C.F.R. part
261.5.
(b) The types and quantities of hazardous waste
generated within the county.
(c) Current hazardous waste management prac-
tices of generators within the county.
(d) Effective waste management practices for haz-
ardous waste generators requiring offsite services,
including the identification of types of facilities needed
to serve the hazardous waste generators within the
county.
(e) Abandoned dump sites within the county.
(f) Operating procedures at sanitary landfills within
the county.
(3) Each regional planning council shall coordinate
the local hazardous waste management assessments
for counties within its region and submit them to the
department, according to a department-prescribed for-
mat. Each county shall prepare a local hazardous waste
management assessment based on guidelines estab-
lished by the department. The regional planning coun-
cils and the counties shall negotiate the proportionate
share of each county of the sum appropriated to the
region for this purpose. In the event that a regional plan-
ning council and a county cannot agree on such share,
the secretary of the department shall settle the dispute.
The share of the county shall be determined pursuant
to the criteria specified in s. 27(2) of chapter 83-310,
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ENVIRONMENTAL CONTROL
F.S. 1991
Laws of Florida. Once the allocation is made available to
tnem. the counties shall have 30 days to decide whether
or not they want to perform their own assessments. If a
ccunty declines to perform the local hazardous waste
management assessment or fails to respond within the
30-aay period, the regional planning council shall per-
form the assessment.
(4) Each county shall designate areas within the
county in which a hazardous waste storage facility may
be located. Counties may jointly designate areas or sites
by interlocal agreement. Public hearings shall be held to
determine the area locations. Each county shall amend
its comprehensive plan, if necessary, in order to desig-
nate areas for storage facilities. Preference shall be
given to appropriate public lands and industrial areas as
designated on local comprehensive plans. However, this
section does not prohibit a county from amending its
comprehensive plan to designate other areas for this
purpose or prohibit construction of a facility on any other
locally approved or state-approved site.
(5) No county may amend its comprehensive plan or
undertake rezoning actions in order to prevent areas
from being designated for a hazardous waste storage
facility.
(6) The regional planning councils shall:
(a) Assist with county hazardous waste manage-
ment assessments and area selection procedures;
(b) Coordinate and assemble local hazardous waste
management assessments, which shall then constitute
a regional hazardous waste management facility needs
assessment, and area selections;
(c) Provide any technical expertise needed by the
counties in developing the assessments:
(d) Promote local and regional public information
programs for citizens and generators of hazardous
waste;
(e) Review storage facility area selections for the
purpose of siting one or more regional storage facilities;
and
(f) Select one or more regional storage facility sites.
(7) The selection of a regional storage facility site will
not preclude the siting of a storage facility at some other
site which is locally or state approved.
(8) Within 6 months after the completion of all local
hazardous waste management assessments within a
region, the regional planning council shall complete a
regional hazardous waste management facility needs
assessment utilizing procedures and guidelines devel-
oped by the department in order to ensure consistent
development of these planning documents. Further, the
regional planning council, in preparing the regional haz-
ardous waste management facility needs assessment,
shall utilize all data available from county hazardous
waste management assessments. The regional plan-
ning council, according to a department-prescribed for-
mat. shall include in its regional hazardous waste man-
agement facility needs assessment the following:
(a) A summary of the quantities and types of hazard-
ous waste generated within its jurisdiction.
(b) A summary of current hazardous waste manage-
ment- practices by generators in its jurisdiction.
(c) A profile of hazardous waste generators in its
jurisdiction by industry, size, and county or city location.
(d) An assessment cf the excess demand for off site,
commercial hazardous waste facilities and services.
(e) An assessment of the short-term need and the
long-term need for hazardous waste management facili-
ties in its jurisdiction.
(f) A plan to eliminate ar.y excess demand for offsite
hazardous waste management facilities or services with
the local governments in its jurisdiction, with local gov-
ernments in other jurisdictions, or with other regional
planning councils.
(9) The department shall:
(a)1. Assemble the regional hazardous waste man-
agement facility needs assessments and determine if
the needs of hazarcous waste generators will be met by
regional hazardous waste storage facilities or if addi-
tional storage, treatment, or disposal facilities are
needed in the state and, if needed, which regions have
the greatest need; and
2 Submit its determinations to the Legislature.
(b) Prepare a progress report on the development of
each regional hazardous waste management facility
needs assessment and submit such report to the Legis-
lature no later than January 1 of the year in which such
plan is due.
(10) The schedule for completion of county hazard-
ous waste management plans by region is as follows:
(a) For counties within the geographic areas of the
Tampa Bay Regional Planning Council, the South Florida
Regional Planning Council, the Northeast Florida
Regional Planning Council, and the East Central Florida
Regional Planning Council and for Volusia County; by
January 1, 1985.
(b) For counties within the geographic areas of the
Treasure Coast Regional Planning Council, the South-
west Florida Regional Planning Council, the West Florida
Regional Planning Council, and the Central Florida
Regional Planning Council; by July 1, 1985.
(c) For counties within the geographic areas of the
the Apalachee Regional Planning Council, the North
Central Florida Regional Planning Council, and the With-
lacoochee Regional Planning Council and for Jefferson
County; by July 1, 1986.
(11) The preparation of county hazardous waste man-
agement assessments, storage facility area selections,
or regional storage facility site selections shall not pre-
vent siting of storage or treatment facilities in any area
of the state.
(12) Any county which undertakes and completes a
hazardous waste management assessment and storage
facility area selection prior to the scheduled completion
dates for counties in the region shall receive a propor-
tionate share of moneys available, determined pursuant
to subsection (3). at the time it is appropriated for such
purpose.
(13) Water management districts shall provide techni-
cal assistance, relative to water resources, to local and
regional agencies during the selections of the local stor-
age facility areas and regional transfer facility sites.
(14) The department and the regional planning coun-
cils shall administer any funds appropriated for the pur-
pose of developing the local hazardous waste manage-
ment assessments and storage facility area or site
selections.
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
ing financial responsibility for the duration of the permit.
The Department of Insurance shall be available to assist
the department in making this determination. In approv-
ing or modifying the amount of financial responsibility,
the department shall consider:
(a) The amount and type of hazardous waste
involved;
(b) The probable damage to human health and the
environment;
(c) The danger and probable damage to private and
public property near the facility;
(d) The probable time that the hazardous waste and
facility involved will endanger the public health, safety,
and welfare or the environment; and
(e) The probable costs of properly closing the facil-
ity.
(4) The department may adopt rules wf ch establish
the procedures and guidelines it will use to approve or
modify the amount of financial responsibility.
(5) Hazardous waste facilities in operation on Octo-
ber 1, 1980, shall, within 1 year after the effective date
of rules regarding financial responsibility pursuant to
this act. establish financial responsibility or have the
requirement waived.
(6) By rule, the department may create exemptions
from the financial responsibility requirement when, due
to the size or magnitude of the operation, waiving the
requirement will not conflict with the purposes of the
requirement.
(7) A transporter of hazardous waste shall be
bonded or insured to guarantee the financial responsibil-
ity of such transporter for any liabilitv which may be
incurred in the transportation of such l .azardous waste
and to provide that all appropriate measures are taken
to prevent damage to human health, safety, and welfare,
to the environment, and to private and public property.
Financial guarantees specified in subsection (2) shall be
used to satisfy the financial responsibility requirement.
(8)(a) In any case where the owner or operator is in
bankruptcy, reorganization, or arrangement pursuant to
the Federal Bankruptcy Code or where with reasonable
diligence jurisdiction in any state court or any of the fed-
eral courts cannot be obtained over an owner or opera-
tor likely to be solvent at the time of judgment, any claim
arising from conduct for which evidence of financial
responsibility must be provided under this section may
be asserted directly against the guarantor providing
such evidence of financial responsibility. In the case of
any action pursuant to this subsection, such guarantor
shall be entitled to invoke all rights and defenses which
would have been available to the owner or operator if
any action had been brought against the owner or oper-
ator by the claimant and which would have been avail-
able to the guarantor if an action had been brought
against the guarantor by the owner or operator. The total
liability of any guarantor shall be limited to the aggregate
amount which the guarantor has provided as evidence
of financial responsibility to the owner or operator under
this act.
(b)1. Nothing in this subsection shall be construed
to limit any other state or federal statutory, contractual,
or .common law liability of a guarantor to its owner or
operator, including, but not limited to, the liability of such
guarantor for bad faith either in negotiating or in failing
to negotiate the settlement of any claim.
2. Nothing in this subsection shall be construed to
diminish the liability of any person under s. 107 or s. Ill
of the Comprehensive Environmental Response, Com-
pensation and Liability Act of 1980, 'Pub. L. No. 96-510,
or other applicable law.
Hniory.—s. e. eft. 60-302: s. 22. eft. 83-310: s. 38. eft. 86-186. s. 65.cn. 90-331.
Wot*.—The citation •fNjb. L. No. 96-510* was aooeo by editors.
403.725 Hazardous Waste Management Trust
Fund.—
(1) The purpose of this section is to create a method
to provide financial resources to abate or substantially
reduce an imminent hazard due to hazardous waste, to
maintain and monitor an area where hazaraous waste
has been disposed of, to prevent damage from hazard-
ous waste, to pay for all provable property damages
which are the proximate results of hazardous wastes
released into the environment after the eflective date of
this act, and to pay for restoration of areas damaged by
hazardous waste from abandoned hazardous waste
sites. It shall be the responsibility of any person claiming
damages from this fund to provide the department with
documentation of the destruction to, or loss of, any real
or personal property. The claimant shall also provide the
department with documentation that the damages were
the direct result of the release of hazardous waste into
the environment. This section shall be liberally con-
strued to effect the purposes set forth, such construc-
tion being especially imperative due to the danger which
hazardous waste poses to human health, safety, and
welfare; the environment; and private and public prop-
erty.
(2) The Hazardous Waste Management Trust Fund
is established and shall be used by the department for
the purposes, and shall receive funds and be adminis-
tered in the manner, specified in this section.
(3) Into the fund shall be deposited:
(a) Appropriations to the fund by the Legislature:
(b) Moneys collected from reimbursement requests
and actions; and
(c) Grants, moneys, or gifts from public or private
agencies which are specifically designated to be depos-
ited into the fund for hazardous waste management.
(4) Moneys in the fund not currently needed to meet
the obligations of the department in the exercise of its
responsibilities under this act shall be deposited with
the Treasurer to the credit of the fund and may be
invested in such manner as is provided by statute. Inter-
est received on the investment shall be credited to the
fund.
(5) Moneys in the fund shall not be expended to
clean up hazardous waste which is being removed from
navigable waters by a federal agency in accordance
with the National Oil and Hazardous Substances Pollu-
tion Contingency Plan established pursuant to the Fed-
eral Water Pollution Control Act, Pub. L. No. 92-500, as
amended, or which is being removed from any coastal
waters, estuaries, tidal flats, beaches, or lands adjoining
the coastline of the state by the Department of Natural
Resources pursuant to chapter 376.
History.—%. 8. eft. 80-302: ». 9. eft. 82-27: ». 6. eft. 85-164.
91
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
403.7255 Department to adopt rules.—
(1) The Department of Environmental Regulation
snail adopt rules no later than January 1, 1991, which
establish requirements and procedures for the place-
ment of signs at sites which may have been contami-
nated by hazardous wastes. Sites shall include any site
in the state that is listed or proposed for listing on the
Super!und Site List of the United States Environmental
Protection Agency or any site identified by the depart-
ment as a suspected or confirmed contaminated site
where there may be a risk of exposure to the public. The
requirements of this section shall not apply to sites
reported under ss. 376.3071 and 376.3072. The rules
shall establish the appropriate size for such signs, which
size shall be no smaller than 2 feet by 2 feet, and shall
provide in clearly legible print appropriate warning lan-
guage for the waste or other materials at the site and a
telephone number which may be called for further infor-
mation.
(2) Violations of this act are punishable as provided
in s. 403.161(4).
(3) The provisions of this act are independent of and
cumulative to any other requirements and remedies in
this chapter or chapter 376, or any rules promulgated
thereunder.
Hi«tor|r.—m. 2, 3. «. cn. 90-15.
403.726 Abatement of imminent hazard caused by
hazardous substance.—
(1) The Legislature finds that hazardous waste
which has been improperly generated, transported, dis-
posed of, stored, or treated may pose an imminent haz-
ard to the public health, safety, and welfare and the envi-
ronment.
(2) The department shall take any action necessary
pursuant to s. 403.121 or s. 403.131 to abate or substan-
tially reduce any imminent hazard caused by a hazard-
ous substance, including a spill into the environment of
a hazardous substance. The department is authorized
to use moneys from the Hazardous Waste Management
Trust Fund or the Water Quality Assurance Trust Fund
to finance such actions, and such expenditures from the
fund shall be recoverable pursuant to s. 403.725(5) or s.
376.307.
(3) An imminent hazard exists if any hazardous sub-
stance creates an immediate and substantial danger to
human health, safety, or welfare or to the environment.
The department may institute action in its own name,
using the procedures and remedies of s. 403.121 or s.
403.131, to abate an imminent hazard. However, the
department is authorized to recover a civil penalty of not
more than $25,000 for each day of continued violation.
Whenever serious harm to human health, safety, and
welfare; the environment; or private or public property
may occur prior to completion of an administrative hear-
ing or other formal proceeding which might be initiated
to abate the risk of serious harm, the department may
obtain, ex parte, an injunction without paying filing and
service fees prior to the filing and service of process.
(4) The department may implement the provisions of
chapter 386 and ss. 387.08 and 387.10 in its own name
whenever a hazardous substance is being generated,
transported, disposed of. stored, or treated in violation
of those provisions of law.
(5) The department may issue a permit requiring
prompt abatement of an imminent hazard.
(6) The department may remove or dispose of any
hazardous substance which has become an imminent
hazard, or take any other emergency action, when the
owner or operator of a hazardous waste facility or a gen-
erator or transporter of a hazardous suDstance does not
take appropriate action to abate or neutralize the haz-
ard.
(7) Where a hazardous substance is discharged into
waters of the state and abatement action is taken pursu-
ant to this section, the department may require that the
affected body of water be restored to meet, but not
exceed, either the standards estaolisned by cepartmen;
rule for that particular body of water or ambient water
quality prior to the discharge, whichever is higher. How-
ever. under no circumstances would the subject water
have to be restored to a more pure state than ambient
water quality prior to the discharge.
History.—l. 8. ch. 80-302: •. 36. cn. 84-338
403.7264 Amnesty days for purging small quanti-
ties of hazardous wastes.—Amnesty days are author-
ized by the state for the purpose of purgi. g small quanti-
ties of hazardous waste, free of charge, from the pos-
session of homeowners, farmers, schools, state agen-
cies, and small businesses. These entities have no
appropriate economically feasible mechanism for dis-
posing of their hazardous wastes at the present time. In
order to raise public awareness on this issue, provide an
educational process, accommodate those entities which
have a need to dispose of small quantities of hazardous
waste, and preserve the waters of the state, amnesty
days shall be carried out in the following manner:
(1 )(a) The Department of Environmental Regulation
shall administer and supervise amnesty days and shall
contract with a department-approved, bonded waste
handling company for implementation. The waste col-
lected from the entities named in this section shall be
transported out of the state for proper disposal at a fed-
erally approved facility.
(b) If a local government has established a local or
regional hazardous waste collection center pursuant to
s. 403.7265(4) and such center is in operation, the
department and the local government may enter into a
contract whereby the local government shall administer
and supervise amnesty days. If a contract is entered
into, the department shall provide to the local govern-
ment, from funds appropriated to the department for
amnesty days, an amount of money as determined by
the department that is equal to the amount of money
that would have been spent by the department to
administer and supervise amnesty days in the local gov-
ernment's area. A local government that wishes to
administer and supervise amnesty days shall notify the
department at least 30 days prior to the beginning of the
state fiscal year during which the amnesty days are
scheduled to be held in the local government s area.
Local governments that wish to administer and super-
vise amnesty days during fiscal year 1988-1989 shall
notify the department no later than July 30, 1988.
(2) The department shall establish maximum
amounts of hazardous waste to be accepted from any
92
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
one entity during amnesty days. Amnesty days shall
continue, at no cost to participants reporting with less
than 1CX3 pounds of hazardous waste, until funds appro-
priated by the Legislature for this purpose have been
exhausted.
(3) Local governments are required to participate in
the program by selecting a highly visible site for
amnesty days, publicizing the event, and sending a rep-
resentative to work at amnesty days activities when they
occur.
(4) Regional planning councils shall assist the
department in site selection, public awareness, and pro-
gram coordination. However, the department shall retain
full responsibility for the state amnesty days program.
(5) The state shall conduct amnesty days according
to the following schedule:
(a) In counties within the geographic areas of the
South Florida, Treasure Coast, and Southwest Florida
Regional Planning Councils, amnesty days shall be held
between January 1, 1989, and June 3C, 1989.
(b) In counties within the geographic areas of the
Withlacoochee, East Central Florida, Central Florida,
and Tampa Bay Regional Planning Councils and in Volu-
sia County, amnesty days shall be held between July 1,
1989, and June 30, 1990.
(c) In counties within the geographic areas of the
West Florida, Apalachee, North Central Florida, and
Northeast Florida Regional Planning Councils and in Jef-
ferson County, amnesty days shall be held between July
1, 1990, and June 30, 1991.
(6) Amnesty days shall be funded on a continuing
basis, as needed, from the Water Quality Assurance
Trust Fund. The department is author ied to use up to
5 percent of the funds appropriated for amnesty days for
administrative costs and up to 5 percent of such funds
for public education related to amnesty days.
Hlitory.—i. 34, ch.83-310: v 37. eft. 84-338: ». 39. ch. 86-186: i. 7. eh. 88-393.
403.7265 Local hazardous waste collection pro-
gram.—
(1) The Legislature recognizes the need for local
hazardous waste collection centers throughout the
state which can be operated to augment existing and
future hazardous waste storage facilities. Local collec-
tion centers are to serve a purpose similar to the collec-
tion locations used in the amnesty days program
described in s. 403.7264. Such collection centers are to
be operated to provide a service to homeowners, farm-
ers, and small businesses who generate small quantities
of hazardous waste and to encourage proper hazardous
waste disposal. Local collection centers will allow local
governments the opportunity to provide a location for
collection and temporary storage of small quantities of
hazardous waste. A private concern should be responsi-
ble for collecting the waste within 90 days for transfer
to a permitted recycling, storage, disposal, or treatment
facility. In time, local collection centers are to become
privately operated businesses in order to reduce the bur-
den of hazardous waste collection on local government.
(2) The department, in cooperation with the regional
planning councils and the counties, shall formulate and
update a plan for collecting small quantities of hazard-
ous waste from homeowners, farmers, and businesses
in the state. The plan shall include:
(a) An assessment of private industry interest or
involvement in hazardous waste collection in the state
and recommendations to the Legislature for private
industry collection incentives:
(b) A survey of businesses available to serve this
function or alternative recycling or disposal functions
with recommendations of approved firms to be used by
local governments for the collection program:
(c) A method for encouraging private industry haz-
ardous waste collection pilot projects in local and
regional communities; and
(d) An assessment of the suitability of those areas
designated by the regional planning councils as regional
storage facility sites and a recommendation of a site for
a multipurpose hazardous waste facility. The assess-
ments and recommendation required by this paragraoh
shall be submitted to the Governor, the President of the
Senate, and the Speaker of the House of Representa-
tives no later than May 1, 1988.
(3) By March 1, 1991, the department shall develop
a statewide local hazardous waste management plan
which will ensure comprehensive collection and proper
management of hazardous waste from small quantity
generators and household hazardous waste in Florida.
The plan shall address, at a minimum, a network of local
collection centers, transfer stations, and expanded haz-
ardous waste collection route services. The plan shall
assess the need for additional compliance verification
inspections, enforcement, and penalties. The plan shall
include a strategy, timetable, and budget for implemen-
tation.
(4) For the purposes of this section, the phrase:
(a) "Collection center" means a secured site
approved by the department to be used as a base for
a hazardous waste collection facility.
(b) "Regional collection center" means a facility per-
mitted by the department for the storage of hazardous
wastes.
(5) The department shall establish a grant program
for local governments which desire to provide a local or
regional hazardous waste collection center. Grants shall
be authorized to cover collection center costs associ-
ated with capital outiay for preparing a facility or site to
safely serve as a collection center and to cover costs of
administration, public awareness, and local amnesty
days programs. The total cost for administration and
public awareness shall not exceed 10 percent of the
grant award. Grants shall be available on a competitive
basis to local governments which:
(a) Comply with the provisions of ss. 403.7225 and
403.7264:
(b) Design a collection center which is approved by
the department; and
(c) Provide up to 33 percent of (he capital outlay
money needed for the facility as matching money.
(6) The maximum amount of a grant for any local
government participating in the development of a collec-
tion center shall be $100,000. If a regional collection facil-
ity is designed, each participating county shall be eligi-
ble for up to $100,000.
Hlttoiy.—•. 9. ch. 8J-269: s. 40. ch. 86-186: J. 13. ch. 87-374; t. 8. ch. 88-393.
403.727 Violations; defenses, penalties, and reme-
dies.—
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(1) It is unlawful for any biohazardous or hazardous
waste generator, transporter, or facility owner or opera-
tor to:
(a) Fail to comply with the provisions of this act or
departmental rules or orders;
(b) Operate without a valid permit;
(c) Fail to comply with a permit;
(d) Cause, authorize, create, suffer, or allow an immi-
nent hazard to occur or continue;
(e) Knowingly make any false statement, represen-
tation, or certification in any application, record, report,
plan, cr other document filed or required to be main-
tained pursuant to the provisions of this act;
(f) Fail to notify the department pursuant to s.
4C3.72(2): or
(g) Refuse lawful inspection.
(2) In addition to the "imminent hazard" provision, ss.
403.121 and 403.131 are available to the department to
abate violations of this act.
(3) Violations of the provisions of this act are punish-
able as follows:
(a) Any person who violates the provisions of this
act, the rules or orders of the department, or the condi-
tions of a permit is liable to the state for any damages
specified in s. 403.141 and for a civil penalty of not more
than $50,000 for each day of continued violation, except
as otherwise provided herein. The department may
revoke any permit issued to the violator. In any action by
the department against a small hazardous waste gener-
ator for the improper disposal of hazardous wastes, a
rebuttable presumption of improper disposal shall be
created if the generator was notified pursuant to s.
403.7234; the generator shall then have the burden of
proving that the disposal was proper. If the generator
was not so notified, the burden of proving improper dis-
posal shall be placed upon the department.
(b) Any person who knowingly or by exhibiting reck-
less indifference or gross careless disregard for human
health:
1. Transports or causes to be transported any bio-
hazardous or hazardous waste, as defined in s. 403.703,
to a facility which does not have a permit when such a
permit is required under s. 403.707 or s. 403.722;
2. Disposes of, treats, or stores biohazardous or
hazardous waste:
a. At any place but a hazardous waste facility which
has a current and valid permit pursuant to s. 403.722 or,
with regard to biohazardous waste, at any place except
a facility that has a current and valid permit for the dis-
posal or storage of biohazardous waste;
b In knowing violation of any material condition or
requirement of such permit if such violation has a sub-
stantial likelihood of endangering human health, animal
or plant life, or property; or
c. In knowing violation of any material condition or
requirement of any applicable rule or standard if such
violation has a substantial likelihood of endangering
human health, animal or plant life, or property;
3 Makes any false statement or representation or
knowingly omits material information in any biohazar-
dous or hazardous waste application, label, manifest,
record, report, permit, or other document required by
this act;
4. Generates, stores, treats, transports, disposes
of. or otherwise handles any bionazardous or hazardous
waste and who knowingly destroys, alters, conceals, or
fails to file any record, application, manifest, report, or
other document required to be maintained or filed for
purposes of compliance with this act; or
5. Transports without a manifest, or causes to be
transported without a manifest, any biohazardous or
hazardous waste required by rules adopted by the
department to be accompanied by a manifest
is, upon conviction, guilty of a felony of the third degree,
punishable for the first such conviction by a fine of not
more than £50,000 for each day of violation or imprison-
ment not to exceed 5 years, or both, and for any subse-
quent conviction by a fine of not more than $100,000 per
day of violation cr imprisonment of not more than 10
years, or both.
(c)1. As used in this paragraph, "Class II violation'
means a violation of this part, or the rules promulgated
pursuant to this part, which pertains to small quantity
generators as defined by applicable department rules
and which does not result in a discharge or serious
threat of a discharge of hazardous waste to the environ-
ment, or does not involve the failure to ensure that
groundwater will be protected or that hazardous waste
will be destined for and delivered to permitted facilities.
Class II violations shall include, but need not be limited
to, the failure to submit manifest exception reports in a
timely manner, failure to provide a generator's United
States Environmental Protection Agency identification
number on the manifest, failure to maintain complete
personnel training records, and failure to meet inspec-
tion schedule requirements for tanks and containers
that hold hazardous waste.
2. In addition to any other judicial or administrative
remedy authorized by this part, the department may
assess a noncompliance fee for any Class II violation by
a small quantity generator. For the first and second viola-
tions, the fee shall not be assessed until the generator
has failed to comply after notice of noncompliance and
has been given a reasonable time to comply. If the
owner or operator fails after three or more notifications
to comply with the requirement to correct the Class II
violation, the department may assess the fee without
waiting for compliance.
3. At the time of assessment of a noncompliance
fee, the department shall give the small quantity genera-
tor written notice setting forth the amount assessed, the
specific provision of law, rule, or order alleged to be vio-
lated, the facts alleged to constitute the violation, the
corrective action needed to bring the party into compli-
ance, and the rights available under chapter 120 to chal-
lenge the assessment. The assessment shall be final
and effective unless an administrative proceeding is
requested within 20 days after receipt of the written
notice, and shall be enforceable pursuant to s. 120.69.
Once the assessment has become final and effective,
the department shall refuse to issue, modify, transfer, or
renew a permit or issue an identification number to the
facility until the fee has been paid.
4. Before assessing any noncompliance fee, the
department shall adopt rules to implement the provi-
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ENVIRONMENTAL CONTROL
Ch. 403
sions of this paragraph, which shall include a descriptor)
of activities that constitute Class II violations and the set-
ting of appropriate amounts for the noncompliance fees,
based upon the type of violation, but not to exceed $250.
Total noncompliance fees assessed shall not exceed
SI,000 per assessment for all violations attributable to a
specific facility during any one month.
5. The department's assessment of a noncompli-
ance fee shall be in lieu of any civil action that may be
instituted by the department in a court of competent
jurisdiction to impose and recover civil penalties for any
violation that resulted in the fee assessment, unless the
department initiates a civil action for nonpayment of a
fee properly assessed pursuant to this paragraph.
6. Noncompliance fees collected pursuant to this
paragraph shall be aeoosited in the Pollution Recovery
Fund. The department may use a portion c. the fund to
contract for services to help in the collection of fees
assessed pursuant to this paragraph.
(4) In addition to any other liability under this chap-
ter, and subject only to the defenses set forth in subsec-
tions (5), (6), and (7):
(a) The owner and operator of a facility;
(b) Any person who at the time of disposal of any
hazardous substance owned or operated any facility at
which such hazardous substance was disposed of;
(c) Any person who, by contract, agreement, or oth-
erwise, arranged for disposal or treatment, or arranged
with a transporter for transport for disposal or treatment,
of hazardous substances owned or possessed by such
person or by any other parly or entity at any facility
owned or operated by another party cr entity and con-
taining such hazardous substances: arid
(d) Any person who accepts or has accepted any
hazardous substances for transport to disposal or treat-
ment facilities or sites selected by such person,
is liable for all costs of removal or remedial action
incurred by the department under this section and dam-
ages for injury to, destruction of, or loss of natural
resources, including the reasonable costs of assessing
such injury, destruction, or loss resulting from the
release or threatened release of a hazardous substance
as defined in the Comprehensive Environmental
Response. Compensation, and Liability Act of 1990,
Pub. L. No. 96-510.
(5) The following defenses are available to a person
alleged to be in violation of this act, who shall plead and
prove that the alleged violation was solely the result of
any of the following or combination of the following:
(a) An act of war.
(b) An act of government, either state, federal, or
local, unless the person claiming the defense is a gov-
ernmental body, in which case this defense is available
only by acts of other governmental bodies.
(c) An act of God, which means only an unforesee-
able act exclusively occasioned by the violence of
nature without the interference of any human agency.
(d) An act or omission of a third party other than an
employee or agent of the defendant or other than one
whose act or omission occurs in connection with a con-
tractual relationship existing, directly or indirectly, with
the defendant, except when the sole contractual
arrangement arises from a published tarift and accept-
ance for carriage by a common earner by rail, if the
defendant establisnes by a preponderance of the evi-
dence that:
1. The defendant exercised due care with respect
to the biohazardous or hazardous waste concerned, tak-
ing into consideration the characteristics of such bioha-
zardous or hazardous waste, in light of all relevant facts
and circumstances; and
2. The defendant took precautions against foresee-
able acts or omissions of any such third party and
against the consequences that could foreseeably result
from such acts or omissions.
(6) A generator or transporter of biohazardous or
hazardous wastes who has complied with this act and
with the applicable rules promulgated under this act and
who has contracted for the disposal of biohazardous or
hazardous wastes with a licensed biohazardous or haz-
ardous waste disposal or processing facility is relieved
from liability for those wastes upon receipt of a certifi-
cate of disposal from the disposal or processing facility.
(7) A generator of biohazardous or hazardous waste
who has complied with this act and with the applicable
rules under this act and who has contracted for the
transportation of biohazardous or hazardous waste to a
licensed biohazardous or hazardous waste facility is
relieved of liability to the extent that such liability is cov-
ered by the insurance or bond of the transporter
obtained pursuant to this act.
(8) Notwithstanding any of the provisions of this sec-
tion, a generator of biohazardous wastes who has com-
plied with this act and with the applicable rules promul-
gated under this act and who has contracted for the
transportation of biohazardous wastes with a trans-
porter who is registered pursuant to Department of Envi-
ronmental Regulation rules and regulations shall not be
jointly and severally liable for any actions of the trans-
porter.
Hlttory.—s. 6. eft. 80-302: ». 10. eft. 82-27: $. 35. cn. 83-310: s. 38. ch. 84-338:
s. 41. en. 86-186: t. 3. cn. 89-143: s. 4. cn. 90-82.
403.728 Qualifications of operation personnel of
hazardous waste facilities.—The owner and operator of
a hazardous waste facility shall employ persons who are
adequately trained, or who are registered in a training
program, to operate and maintain a hazardous waste
facility. The department may develop and conduct
onsite or classroom training programs for persons who
operate or maintain hazardous waste facilities. The
aepartment may do so through its employees or by con-
tract. The program may include training in personal and
public safety, emergency measures, properties of the
waste, and such other items as the department deems
necessary.
History.—s. 8. ch. 8&-302.
403.73 Trade secrets.—Records, reports, or infor-
mation obtained from any person under this act shall be
available to the public, except upon a showing satisfac-
tory to the department by the person from whom the rec-
ords, reports, or information is obtained that such rec-
ords, reports, or information, or a particular part thereof,
contain trade secrets. Such trade secrets, or portions
thereof, shall be confidential and are exempt from the
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ENVIRONMENTAL CONTROL
F.S. 1991
provisions of s. 119.07(1). The person must request that
the department keep such trade secrets confidential
zr.c must inform the department pf the basis for the
claim of trade secret. The department shall, subject to
notice and opportunity for hearing, determine whether
the information, or portions thereof, claimed to be a
trade secret is or is not a trade secret. When making a
determination pursuant to this section, the department
shall consider the public purpose specified in s.
119.14(4)(b)3. However, such trade secrets may be dis-
closed to officers, employees, or authorized representa-
tives of the department or of the United States Environ-
mental Protection Agency, or when relevant in any pro-
ceeding under this act. This exemption is subject to the
Open Government Sunset Review Act in accoraance
with s. 119.14.
Hittory.—s. 8. cfi. 0O-X2: 9. 3. ch. 90-7*.
403.74 Management of hazardous materials by
governmental agencies.—
(1) For the purposes of this section, "hazardous
materials" are those substances which are:
(a) Listed as constituents of waste streams F001,
F002. F003, F004, and F005 in 40 C.F.R. s. 261.31, or
(b) Listed in 40 C.F.R. s. 261.33, including those sub-
stances which are "pesticides' as defined by s.
487.021(45).
(2) Every local, state, or other governmental agency
and every institution of the State University System that
disposes of hazardous materials shall:
(a) Notify the Department of Environmental Regula-
tion of the type and approximate annual quantity of each
hazardous material that is generated.
(b) Notify the department of the management prac-
tices used for disposal of its hazardous materials.
(3) Each such agency shall develop written plans for
the management of the disposal of hazardous material.
(4) Each such agency shall develop plans for spill
prevention control and countermeasures for hazardous
materials incidents.
(5) Hazardous materials which are used by govern-
mental agencies in annual quantities of less than 1 kilo-
gram, except for those hazardous materials which are
listed because of reactivity, are exempt from this sec-
tion.
Nlitofy.—t. 36. ch. 63-310: *. 39. ch. $4-338: ». 56. ch. 65-61.
Not*.—former » £01.116.
403.75 Definitions relating to used oil.—As used in
ss. 403.75-403.769 and s. 526.01, as amended by chap-
ter 84-338, Laws of Florida, the term:
(1) "Public used oil collection center" means:
(a) Automotive service facilities or governmentally
sponsored collection facilities, which in the course of
business accept for disposal small quantities of used oil
from households; and
(b) Facilities which store used oil in aboveground
tanks, which are approved by the department, and
which in the course of business accept for disposal
small quantities of used oil from households.
(2) 'Department" means the Department of Environ-
mental Regulation.
(3) "Person" means any individual, private or public
corporation, partnership, cooperative, association,
estate, political subdivision, or governmental agency or
instrumentality.
(<) "Reclaiming" means the use of methods, other
than those used in rerefining. to purify used oil primarily
to remove insoluble contaminants, making the oil suit-
able for further use: the methods may include settling,
heating, dehydration, filtration, or centrifuging.
(5) "Recycling" means to prepare used oil for reuse
as a petroleum product by rerefining, reclaiming, re pro-
cessing, or other means or to use used oil in a manner
that substitutes for a petroleum product made from new
oil.
(6) "Rerefining" means the use of refining processes
on used oil to produce high-quality base stocks for lubri-
cants or other petroleum products. Rerefining may
include distillation, hydrotreating, or treatments employ-
ing acid, caustic, solvent, clay, or other chemicals, or
other physical treatments other than those used in
reclaiming.
(7) "Used oil" means any oil which has been refined
from crude oil or synthetic oil and, as a result of use, stor-
age, or handling, has become unsuitable for its original
purpose due to the presence of impurities or loss of orig-
inal properties, but which may be suitable for further use
and is economically recyclable.
(8) "Used oil recycling facility" means any facility that
recycles more than 10.000 aallons of used oil annually.
Hlttofy.—». 57. en. 84-338; «. 25. cn/Ss-iM.
403.751 Prohibited actions; used oil.—
(1)(a) No person may collect, transport, store, recy-
cle, use, or dispose of used oil in any manner which
endangers the public health or welfare.
(b) No person may discharge used oil into sewers,
drainage systems, septic tanks, surface or ground
waters, watercourses, or marine waters.
(c) No person may mix or commingle used oil with
solid waste that is to be disposed of in landfills or directly
dispose of used oil in landfills in Florida unless approved
by the department.
(d) Any person who unknowingly disposes into a
landfill any used oil which has not been properly segre-
gated or separated from other solid wastes by the gener-
ator is not guilty of a violation under this act.
(e) No person may mix or commingle used oil with
hazardous substances that make it unsuitable for recy-
cling or beneficial use.
(2) Used oil shall not be used for road oiling, dust
control, weed abatement, or other similar uses that have
the potential to release used oil into the environment.
History.—t. 56. cfl. 8*-338: ¦. 26. cti. 88-130.
403.753 Public educational program about collec-
tion and recycling of used oil.—The department shall
conduct a public education program to inform the public
of the needs for and benefits of collecting and recycling
used oil and shall:
(1) Encourage persons who annually sell at retail, in
containers for use off the premises, more than 500 gal-
lons of oil to provide the purchasers with information on
the locations of collection facilities and information on
proper disposal practices.
(2) Establish, maintain, and publicize a used oil infor-
mation center that disperses materials or information
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
explaining local, slate, and federal laws and rules gov-
erning used oil and informing the public of places and
methods for proper disposal of used oil.
(3) Encourage the voluntary establishment of used
oil collection and recycling programs and provide techni-
cal assistance to persons who organize such programs.
(4) Encourage the procurement of recycled automo-
tive, industrial, and fuel oils, and oils blended with recy-
cled oils, for all state and local government uses. Recy-
cled oils procured under this section shall meet equip-
ment manufacturer's specifications. A 5-percent price
preference may be given in procuring these recycled
products.
Hlitory.—a. 59. cn. 84-338: s. 27. cn. 88-130
403.754 Registration ot persons transporting, col-
lecting, or recycling used oil; fees; repo Is and rec-
ords.—
(1) The following persons shall register annually with
the department pursuant to rules of the department on
forms prescribed by it:
(a) Any person who transports over public highways
more than 500 gallons of used oil annually.
(b) Any person who maintains a collection facility
that receives more than 6,000 gallons of used oil annu-
ally. For purposes of registration, the amount received
does not include used oil delivered to collection centers
by individuals 'who change their own personal motor oil.
(c) Any facility that recycles more than 10,000 gal-
lons of used oil annually.
(2) An electric utility the operations of which gener-
ate used oil and which used oil is then reclaimed, recy-
cled, or rerefined by the electric utility for use in its oper-
ations is not required to register or report pursuant to
this section.
(3) An onsite burner which only burns a specification
used oil generated by such burner is not required to reg-
ister or report pursuant to this section, provided that
such burning is done in compliance with any air permits
issued by the department.
(4) The department may prescribe a fee for the reg-
istration required by this section in an amount which is
sufficient to cover the cost of processing applications
but which does not exceed $25.
(5) The department shall require each registered
person to submit, no later than July 1 of each year, a
report which specifies the type and quantity sf used oil
transported, collected, and recycled during the preced-
ing calendar year, commencing in calendar year 1985.
(6) Each registered person who transports or recy-
cles used oil shall maintain records which identify:
(a) The source of the materials transported or recy-
cled:
(b) The quantity of materials received:
(c) The date of receipt; and
(d) Th» destination or end use of the materials.
(7) The department shall perform technical studies
to sample used oil at facilities of representative used oil
transporters and at representative recycling facilities to
determine the incidence of contamination of used oil
with hazardous, toxic, or other harmful substances.
History.—s. 60. ch. 84-338: i. 28. eft. 88-130.
Ttw word Vho' was substituted lor ffw word 'that* by the •dilors.
403.7545 Regulation of used oil as hazardous
waste.—Nothing in ss. 403.75-403.769 and s. 526.01,
as amended by chapter 84-338, Laws of Florida, shall
prohibit the department from regulating used oil as a
hazardous waste in a manner consistent with s. 241 of
the Hazardous and Solid Waste Amendments of 1984,
Pub. L. No. 98-616.
Hlitory.—a. *2. ch. 86-186. «. 29. ch, 88-130.
403.756 Report to Legislature concerning oil recy-
cling.—The department shall submit an annual report to
the Legislature which summarizes information on used
oil collection and recycling, analyzes the effectiveness
of this act, and makes recommendations for any neces-
sary changes.
History.—s. 61. ch. 8*-338.
403.757 Coordination with other state agencies.—
(1) The department shall coordinate its activities and
functions under ss. 403.75-403.769 and s. 526.01, as
amended by chapter 84-338, Laws of Florida, with the
Department of Community Affairs and other state agen-
cies to avoid duplication in reporting and information
gathering.
(2) The nonprofit corporation established pursuant
to s. 946.502 shall examine the feasibility of using used
oil to fuel boilers and furnaces of state government build-
ings.
(3) The Department of Transportation shall examine
the feasibility of using recycled oil products in road con-
struction activities.
History.—s. 62, eft. 84-338: s. 30. eh. 88-130; ». 14. cn. 91-113.
403.758 Enforcement and penalty.—
(1) Except as provided in subsection (2), the depart-
ment may enforce ss. 403.75-403.769 and s. 526.01, as
amended by chapter 84-338, Laws of Florida, pursuant
to ss. 403.121 and 403.131.
(2) Any person who fails to register with the depart-
ment as required by s. 403.754 and s. 526.01, as
amended by chapter 84-338, Laws of Florida, is subject
to a fine of $300.
Hlstoty.—s. 63. ch. 84-338; s. 31. ch. 88-130.
403.759 Disposition of fees, fines, and penalties.—
The proceeds from the registration fees, fines, and pen-
alties imposed by ss. 403.75-403.769 and s. 526.01, as
amended by chapter 84-338, Laws of Florida, shall be
deposited into the Solid Waste Management Trust Fund
for use by the department in implementing the provi-
sions of ss. 403.75-403.769 and s. 526.01, as amended
by chapter 84-338, Laws of Florida.
Hlatory.—•. 64. ch. 84-338; s. 32. Ch. 08-130.
403.760 Public used oil collection centers.—
(1) The department shall encourage the voluntary
establishment of public used oil collection centers and
recycling programs and provide technical assistance to
persons who organize such programs.
(2) Ali government agencies, and businesses that
change motor oil for the public, are encouraged to serve
as public used oil collection centers.
(3) A public used oil collection center must:
(a) Notify the department annually that it is accept-
ing used oil from the public: and
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(b) Annually report quantities of used oil collected
from the public.
(4) The Department of Agriculture and Consumer
Services shall assist the department in inspecting public
used oil collection centers.
(5) No person may recover from the owner or opera-
tor of a used oil collection center any costs of response
actions, as defined in s. 376.301, resulting from a release
of either used oil or a hazardous substance or use the
authority of ss. 376.307, 376.3071, and 403.724 against
the owner or operator of a used oil collection center if
such used oil is:
(a) Not mixed with any hazardous substance by the
owner or operator of the used oil collection center:
(b) Not knowingly accepted with any hazardous
substances contained therein:
(c) Transported from the used oil collection center
by a certified transporter pursuant to s. 403.767;
(d) Stored in a used oil collection center that is in
compliance with this section; and
(e) In compliance with s. 114(c) of the Comprehen-
sive Environmental Response, Compensation, and Lia-
bility Act of 1980, as amended.
This subsection applies only to that portion of the public
used oil collection center used for the collection of used
oil and does not apply if the owner or operator is grossly
negligent in the operation of the public used oil collec-
tion center. Nothing in this section shall affect or modify
in any way the obligations or liability of any person under
any other provisions of state or federal law, including
common law, for injury or damage resulting from a
release of used oil or hazardous substances. For the
purpose of this section, the owner or operator of a used
oil collection center may presume that a quantity of no
more than 5 gallons of used oil accepted from any mem-
ber of the public is not mixed with a hazardous sub-
stance, provided that such owner or operator acts in
good faith.
History.—t. 33. ch. 88-130. i. 10. ch. 86-188.
403.761 Incentives program.—
(1) The department is authorized to establish an
incentives program for individuals who change their own
oil to encourage them to return their used oil to a used
oil collection center.
(2) The incentives used by the department may
involve the use of discount or prize coupons, prize draw-
ings, promotional giveaways, or other activities the
department determines will promote collection, reuse, or
proper disposal of used oil.
(3) The department may contract with a promotion
company to administer the incentives program.
Hlatoiy.—». 34, eft. 88-130.
403.763 Grants to local governments.—
(1) The department shall develop a grants program
for local governments to encourage the collection,
reuse, and proper disposal of used oil. No grant may be
made for any project unless such project is approved by
the department.
[2} The department shall consider for grant assist-
ance any local government project that uses one or more
of the following programs or any activity that the depart-
ment feels will reduce the improper disposal and reuse
of used oil:
(a) Curbside pickup of used oil containers by a local
government or its designee.
(b) Retrofitting of solid waste equipment to promote
curbside pickup or disposal of used oil at used oil collec-
tion centers designated by the local government.
(c) Establishment of publicly operated used oil col-
lection centers at landfills or other public places.
(d) Providing containers and other materials and
supplies that the public can utilize in an environmentally
sound manner to store used oil for pickup or return to
a used oil collection center.
(e) Providing incentives for the establishment of pri-
vately operated public used oil collection centers.
(3) Eligible projects shall be funded according to
provisions established by the department. However, in
no case shall one grant exceed $25,000.
(4) The department shall initiate rules on or before
January 1,1989, necessary to carry out the purposes of
this section.
Hlstofy.—a. 35. cn. 68-130.
403.767 Certification of used oil transporters.—
(1) Any person who transports over public highways
after January 1,1990, more than 500 gallons annually of
used oil must be a certified transporter.
(2) The department shall develop a certification pro-
gram for transporters of used oil and shall issue, deny,
or revoke certifications authorizing the holder to trans-
port used oil. Certification requirements shall help
assure that a used oil transporter is familiar with appro-
priate rules and used oil management procedures.
(3) The department shall adopt rules governing cer-
tification, which shall include requirements for the follow-
ing:
(a) Registration and annual reporting pursuant to s.
403.754.
(b) Evidence of familiarity with applicable state laws
and rules governing used oil transportation.
(c) Proof of liability insurance or other means of
financial responsibility for any liability which may be
incurred in the transport of used oil.
HJttory.—r 36. eft. 89*130.
403.769 Permits for used oil recycling facilities.—
(1) Each person who intends to operate, modify, or
close a used oil recycling facility shall obtain an opera-
tion or closure permit from the department prior to oper-
ating, modifying, or closing the facility.
(2) By January 1, 1990, the department shall
develop a permitting system for used oil recycling facili-
ties after reviewing and considering the applicability of
the permit system for hazardous waste treatment, stor-
age, or disposal facilities.
(3) Permits shall not be required under this section
for the burning of used oil as a fuel, provided:
(a) A valid department air permit is in effect for the
facility; and
(b) The facility burns used oil in accordance with
applicable United States Environmental Protection
Agency regulations, local government regulations, and
the requirements of its department air permit.
98
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ENVIRONMENTAL CONTROL
Ch. 403
(4) No permit is required under this section lor the
use of used oil lor the beneficiation or flotation of phos-
phate rock.
History.—i. 37. cT\ 86-130
403.7721 Rule of construction; chs. 85-269 and 85-
277.—The provisions of chapters 85-269 and 85-277,
Laws of Florida, shall be construed to supplement rather
than to diminish or supersede the powers presently
exercised by the Department of Environmental Regula-
tion under chapters 376 and 403. In accordance with
chapters 376 and 403. the department may fully exer-
cise its authority under said chapters to collect informa-
tion for other purposes and may coordinate such efforts
with the information gathering duties imposed by chap-
ters 85-269 and 85-277, where deemed practicable and
advisable, m order to provide for cost-efff :tive use of
state resources.
Hlitory.—s. 15. en. 85-269: s. 5, 85-277.
403.78 Short title.—Sections 403.78-403.7893 may
be cited as the 'Statewide Multipurpose Hazardous
Waste Facility Siting Act."
Hlitory.—s. 4. cn. 89-285.
403.781 Legislative intent.—The legislative intent of
ss. 403.78-403.7893 is to establish a centralized and
coordinated permitting process for the location, con-
struction, operation, and maintenance of statewide mul-
tipurpose hazardous waste facilities, which necessarily
involve several broad interests of the public addressed
through the subject matter jurisdiction of several agen-
cies. The Legislature recognizes that stc.ewide multipur-
pose hazardous waste facilities will havj an effect upon
the welfare of the population. Recognizing the need to
ensure adequate availability, in an orderly, timely, and
continuing fashion, of hazardous waste treatment, stor-
age, and disposal capacity for hazardous wastes gener-
ated in this state, the centralized and coordinated per-
mitting process established by ss. 403.78-403.7893 is
intended to further the legislative goal of ensuring
through available and reasonable methods that the loca-
tion, construction, operation, and maintenance of state-
wide multipurpose hazardous waste facilities produce
minimal adverse effects on the environment and public
health, safety, and welfare. It is the intent of ss. 403.78-
403.7893 to fully balance the need for statewide mul-
tipurpose hazardous waste facilities with the broad
interests of the public in order to effect a reasonable bal-
ance between the need for the facility as a means of pro-
viding adequate hazardous waste treatment, storage,
and disposal capacity and the impact on the public and
the environment resulting from the location, construc-
tion, operation, and maintenance of statewide multipur-
pose hazardous waste facilities. The Legislature intends
that the provisions of chapter 120 apply to ss. 403.78-
403.7893 and to proceedings pursuant to it except as
otherwise expressly exempted.
H)#tory.—•• *• eft. B9-285.
403.782 Definitions.—As used in ss. 403.78-
403.7893:
(.1) "Agency," as the context requires, means an offi-
cial, officer, commission, authority, council, committee,
department, division, bureau, board, section, or other
unit or entity of government within the state, including
a county, municipality, or other regional or local govern-
mental entity.
(2) "Amendment" means a material change in infor-
mation provided in the application lor certification made
after the initial application filing.
(3) "Applicant" means any person proposing to con-
struct and operate a statewide multipurpose hazardous
waste facility and who files an application for certifica-
tion.
(4) "Application" means the documents required by
ss. 403.78-403.7893 to be filed to initiate a certification
proceeding.
(5) "Board" means the Governor and Cabinet sitting
as the siting board.
(6) "Certification" means the written order of the
board approving an application in whole or with such
modifications or conditions as the board may deem
appropriate.
(7) "Local government" means a municipality,
county, or special district in the jurisdiction of which the
project is proposed to be located.
(8) "Statewide multipurpose hazardous waste facili-
ty" means a hazardous waste management facility,
which stores, treats, or disposes of hazardous waste.
(9) "Project" means any proposed statewide mul-
tipurpose hazardous waste facility.
History.—9. 4. ch. 09-285.
403.783 Department of Environmental Regulation;
powers and duties.—The department shall have the fol-
lowing powers and duties:
(1) To make findings or make or contract for studies
of certification applications on matters within the depart-
ment's jurisdiction.
(2) To administer the processing of applications for
certification and ensure that the applications are pro-
cessed as expeditiously as possible.
(3) To require the payment of fees as specified in ss.
403.78-403.7893.
(4) To provide public notice of the filing of the appli-
cation and of the proceedings conducted pursuant to
ss. 403.78-403.7893.
(5) To prescribe the means for monitoring the
effects arising from the location, construction, operation,
and maintenance of the project to assure continued
compliance with the terms of the certification.
(6) To present rebuttal evidence on any issue prop-
erly raised at the certification hearing.
Hlitory.—s. <. Ch. 89-285.
403.784 Applicability and certification.—The provi-
sions of chapter 120 shall apply to this act, except as
alternative proceedings are expressly provided herein.
The provisions of ss. 403.78-403.7893 apply to the siting
of multipurpose hazardous waste facilities. Disputes
relating to the designation of the site and the selection
of the contractor by the department shall be resolved by
the hearing officer and the board as part of the certifica-
tion proceedings.
History.—«. 4. ch. 89-285.
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ENVIRONMENTAL CONTROL
F.S. 1991
403.7841 Application for certification.—
(1) To initiate the certification process, the applicant
shall file five copies of an application for the proposed
project in accordance with this section. The application
shall include completed application forms and other sup-
porting documentation which would be required by the
department or any other relevant agency or local gov-
ernment to obtain any permit, approval, license, lease,
consent of use, or other grant of authority which would
have been applicable to the proposed project in the
absence of ss. 403.78-403.7893. Each applicable form
shall be completed in a manner consistent with require-
ments applicable to the relevant permit or authorization.
The composite application required herein shall include
at a minimum the following:
(a) A description of the project including a map
showing its location.
(b) The means to be employed to attain compliance
of the project with department standards relating to
water quality, air quality, fish and wildlife, and cultural
resources.
(c) The means to be employed to attain compliance
of the project with any other applicable agency stand-
ards.
(d) A marketing analysis of the economic viability
and economic benefits of the proposed project.
(e) An analysis of transportation corridor impacts
related to the proposed facility.
(f) An analysis of the availability of adequate means
for transporting hazardous wastes to a multipurpose
facility established for the purposes of this section, par-
ticularly from small-quantity generators and very-small-
quantity generators.
(2) In order to avoid duplication of information pro-
vided in the composite application, the applicant may
include cross-references from one form or one support-
ing document to another, provided that all required infor-
mation is included in the application as submitted.
(3) Within 7 days after Filing the application with the
department, the applicant shall provide two copies of
the application as filed to each of the following: the
Department of Community Affairs, the water manage-
ment district which has jurisdiction over the area
wherein the proposed project is to be located, the
Department of Transportation, the Department of Natu-
ral Resources, the Game and Fresh Water Fish Commis-
sion, the Department of Health and Rehabilitative Ser-
vices, the Department of Agriculture and Consumer Ser-
vices. and the local governmental entities which have
jurisdiction.
Mlitory.—1 4. ch. 89-28S.
403.7842 Fees.-
(1) The applicant shall submit to the department
with a certification application a filing fee of $75,000. The
department may reject any application for failure to
timely file the application fee.
(2) Any amendment to the application initiated by
and filed by the applicant involving a substantial change
in the size, location, or method of operation of the facility
or requiring additional studies by governmental agen-
cies shall be accompanied by an application amend-
ment fee of $5,000.
(3) Reasonable expenses and costs of the process-
ing of the application by the department, and other gov-
ernmental agencies required to prepare reports on the
application, shall be paid, in an amount as determined
by the department, from the application or application
amendment fees.
(4) As a condition of certification, the board may
impose an annual inspection and monitoring fee in an
amount not to exceed actual annual costs of the depart-
ment for those activities related to the project.
History.—t. 4. cft. 89-2B5
403.785 Appointment of hearing officer.—Within 7
days after receipt of an application, whether complete
or not. the department snail request the Division of
Administrative Hearings to oesignate a hearing officer to
conduct the hearings required by ss. 403.78-403.7893.
The division director shall designate a hearing officer
within 7 days after receipt of the request from the
department. The designated hearing officer shall give
priority to this proceeding, and his workload shall be
adjusted by the division to facilitate the prompt conclu-
sion of this matter. Upon being advisei. that a hearing
officer has been appointed, the department shall imme-
diately file a copy of the application and all supporting
documents with the hearing officer, who shall docket the
application. All other time limits provided in ss. 403.78-
403.7893 shall run from the date of the filing of the appli-
cation with the Division of Administrative Hearings.
History.—t 4. ch. 89-2B5.
403.786 Report and studies.—
(1) The Department of Community Affairs, the water
management district which has jurisdiction over the area
wherein the proposed project is to be located, the
Department of Transportation, the Department of Natu-
ral Resources, the Game and Fresh Water Fish Commis-
sion, the Department of Health and Rehabilitative Ser-
vices, the Department of Agriculture and Consumer Ser-
vices. and each local government which has jurisdiction
shall each submit a report of matters within their jurisdic-
tion to the department within 90 days after their receipt
of the application. Any other agency may submit com-
ments relating to matters within its jurisdiction to the
department within 90 days after the filing of the applica-
tion with the Division of Administrative Hearings.
(2) Each report required by this section shall include
specific findings regarding variances, compliance or
noncompliance on all nonprocedural requirements and
any proposed condition of certification within the juris-
diction of the reporting agency. For each finding of non-
compliance and each proposed condition, the agency
shall list the specific statute, rule, or ordinance authoriz-
ing it.
(3) Any nonprocedural requirement not specifically
addressed in a report required by this section is waived.
(4) It shall be the duty of the department to make
findings on the proposed project, including, but not lim-
ited to, the following:
(a) The potential for compliance of the project, with
department standards relating to water quality, air qual-
ity, fish and wildlife, and cultural resources.
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F.S. 1S91
ENVIRONMENTAL CONTROL
Ch. 4C2
(b) Cc.Tici:ance c! tne project with any other applies-
Die agency standarcs, inducing the criteria established
pursuant tc s. 37 of chaster £3-210. Laws of Flcrica.
[z) Whetner a workable plan can be developed for
transporting hazardous wastes to a multipurpose facility
estaDlisheo for the purposes of this section, particularly
from small-cua,Tiiiy generators ano very-smali-quantitv
generators
(c) Whether tne applicant has adequately
addressed the items set forth in s. 403.7841(1).
(5) The department shall prepare a reoor, as to the
findings required by subsection (4) and the depart-
ment's recommendation as to the disposition of the
acD.'icaticn and any proposed conditions of certification
v.-mcn tne Department oelieves should be imposed and
snai: suDmii the report to the hearing office: within 135
cays after the filing of tne application wiit- the Division
of Acministrative Hearings. This report snaii address rel-
evant issues raised by and comments received from any
agency listed in subsection (1) contained in tne required
report.
(6) Each agency shall file 10 copies of its report with
the department and a; the same time shall submit a
copy to the applicant, each affected agency, and person
who nas filed a notice of intent to become a parly.
History.—s. 4, eft. 89-285.
403.787 Notice, proceedings, parties, participants.
(1)(a) No later than 15 days after the receipt of an
application, the department shall arrange for publication
of a notice of the application and of the proceedings
required by ss. 403.76-403.7893.
(b) The department shall arrange 'jr publication of
a notice of the certification hearing and other public
hearings provided for in this section and notice of the
deadline for filing of notice of intent to be a party. Such
notices shall be published at least 60 days before the
daie set for the hearing, or such other time as necessary
to comply with applicable federal requirements.
(c) The department shall arrange for publication of
a reminder notice in the newspapers no more than 2
weeks prior to the certification hearing, reminding the
public of the date and location of the hearing. This notice
shall not constitute a point of entry for intervention in the
proceeding.
(d) Notices shall be published:
1. By newspaper notice as provided in chapter 50,
within the county in which the project is proposed to be
sited;
2. In the Florida Administrative Weekly; and
3. By giving notice to any persons who have
requested to oe placed on the departmental mailing list
for this purpose.
(e) All published notices shall be paid for by the
applicant and shall be in addition to the application fee.
The department shall arrange for publication ol notices
required by this section.
(2) No later than 180 days after receipt of an applica-
tion by the department, the hearing officer shall conduct
a certification hearing pursuant 10 s. 120.57(1), except
as otherwise provided herein, at a central location in
proximity to the proposed project. The certification hear-
ing shall be completed within 60 days of commence-
ment cf the nearmg. unless a longer time is necessary
to afforc the parlies cue process cf iaw,
(3) A; the conc:us;cn cf tne certificaticn nearmg, the
hearing efftcer snai!, after consideration cf a!i evidence
of reco.-d, and witn cue regard to '.he criteria and s'.anc-
ards set forth in this act, issue a reccrnmenaed order
disposing of '.he application no later than 50 davs after
the transcript cf ihe certification hearing and the public
hearings is filed with tne Division of Administrative Hear-
ings.
(4)(a) Parties to the proceeding shall be:
1. The applicant.
2. The department.
3. The Department cf Community Affairs.
4. The Department c: Natural Resources.
5. The Game anc Fresn Water risn Commission.
6 Each water management district in the jurisdic-
tion cf which tne proposed proiec: is to oe located.
7. Any affeciec local government.
(b) If any person, including the parties listed in this
section, fails to file a notice of its intent to oe a party on
or before the 30th cay pricr tc tne certification nearing.
such person shall be deemed to have waived its rignt
to be a party unless its participation is necessary to sat-
isfy statutory requirements or tc afford due process of
law.
(c) Notwithstanding the provisions of chapter 120 to
the contrary, upon the filing with the hearing officer of
a notice of intent lo be a party, the following snail be par-
ties to the proceeding:
1. Any state agency no; listed in paragraph (a) as
to matters within its jurisdiction.
2. Any domestic nonprofit corporation or associa-
tion formed, in whole or in part, to promote conservation
of natural beauty; to protect the environment, personal
health, or other biological values; to preserve historical
sites; to promote consumer interests; to represent laoor,
commercial, or industrial groups; or to promote orderly
development of the area in which the proposed project
is to be located.
3. Any person whose substantial interests are
aflected and being determined by the proceeding.
(d) Any agency w1-?^ properties or works may be
affected shall be made a party upon the request of the
agency or any party to this proceeding.
(5) At an appropriate time during the hearing, any
person who is not a parly may be given an opportunity
to present oral or written communications to the hearing
officer. All parties shall be given an opportunity to cross-
examine, challenge, or rebut such communications.
(6) The hearing officer shall have all powers and
duties granted to hearing officers by chapter 120 and Py
the laws and rules of the department.
Hlitory.—». 4, ch. 8&-2S6.
403.7871 Public meetings.—
(1) At the request of any affected local government,
the department shall conduct one public meeting
regarding the certification application to assure that
there is substantial input from the affected community
in order to:
(a) Receive public input on matters within the juris-
diction of the local government; and
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ENVIRONMENTAL CONTROL
F.S. 1991
Co) rc:rr.-j:s:* recommendations wr.n respect to the
orciec"--
(2) if more ir.an one local government reauests that
a oublic meeting be conductec as specified in this sec-
tic-., scheduling snail be coordinated such that only one
Duolic meeting win &e held.
(2) The public meeting nelc pursuant to this section
Shall be held in a locality affected by tne proposed proj-
ect.
Hutory.—s 4 cn. 8^-je;
<03.7872 Amendment to the application.—
It} Any amencmen! maoe to the aoplication shall be
sen: by the acoiicant io me neannc ct'ficer anc to all oar-
ties to tne c.-oceecmg.
(2) Any amencment to the application maae prior tc
certification snail pe disposed of as par; of the original
certification proceeding. Amendment of the application
may be considered "good cause" for alteration of time
limits pursuant to s. 403.7673.
Mlnory.—j <. cn. BS-2E5.
403.7873 Alteration of time limits.—Any time limita-
tion in ss. 402.78-403.7893 may be altered by the hear-
ing officer uDon stipulation between the department and
the applicant unless objected to by any oariy within 5
days after notice cr for good cause shown by any party.
Hlttorjr.—5 i CPl. 8&-2ES.
403.788 Final disposition of application.—
(1) For the purposes of issuing a final order, the
board shall serve as the agency head. Within 45 days
after receipt of the hearing officer's recommended
order, the board shall issue a final order as provided by
s. 120.57(1 )(b)10„ approving the application in whole,
approving the application with such modifications or
conditions as the board deems appropriate, or denying
the issuance of a certification and stating the reasons for
issuance or denial.
(2) In regard to the properties and works of any
agency which is a party to the certification hearing, the
board shall have the authority to decide issues relating
to the use thereof, the connection thereto, or the cross-
ing thereof for the project and to direct such state
agency to execute, within 30 days of the entry of certifi-
cation, the necessary license or easement for such use,
connection, or crossing, subject only to the conditions
set forth in such certification.
(3) If certification is denied, the board shall set forth
in writing the action the applicant would have to take to
secure tne approval of ihe application by tne board.
(4) In determining wnether an application shall be
approved in whole, approved with modifications or con-
ditions, or denied, the board shall consider whether, and
the extent to which, tne proposed project will:
(a) Ensure adequate capacity for treatment, storage,
and disposal of hazardous wastes generated in the
state:
(b) Meet the hazardous waste treatment, storage,
and disposal needs of the state in an orderly and timely
fashion:
(c) Comply with the nonprocedural standards of s.
403.722 pertaining to permitting of hazardous waste
facilities:
(c) Comply wiir, soolicaole nonprocecural reauue-
men:s cf affected agencies:
(e) Be consistent w:tn acoi-.cac.e s;mc criteria.
(5) Any project certified by tne boara snail meet tne
criteria cf this section.
(6) The issuance or denial c' tne certification by tr.e
board shall be final agency action. Proceecmcs une'e.-
tnis act shall be subject cnlv ;c judicial review as pro-
vided in s. 120.68.
Hlitory.—9. «. cn S5-?8S
403.7881 Terms and conditions of certification.—
Tne board is authorized to incoroorat-r- sucn terms anc
conditions in the certification as it ceems aopropnate to
comoly witr, aopiicaoie stancarcs o: tne Department
anc otne: acpiicacic- reauirements of this cnaoter,
inclucmg, Dui no: limitec ;c. a iimetaDle tor securing
necessary funcing anc commencing and completing
construction.
Mlttory.—a. ». cn. 63-Ki
403.789 Effect of certification.—
(1) Subject to tne conditions set forth therein, certifi-
cation shall constitute the sole license of the state anc
any agency as to the approval of the location, construc-
tion, operation, and maintenance of the project, except
'hat permits fcr operation or closure of tne hazardous
waste treatme..:. storage or disposal facility must oe
renewed pursuant to s. 403.722 every 5 years.
(2) The certification shall authorize the applicant to
locate, construct, operate, and maintain the project sub-
ject only to the conditions of certification set forth in
such certification. The certification may include condi-
tions which constitute variances and exemptions, otner-
wise allowed by law, from nonprocedural standards or
regulations of the department or any other agency,
which were expressly considered during the proceeding
unless waived Py the agency as provided in ss. 402.78-
403.7893 and which otherwise would be applicable to
the location, construction, operation, or maintenance of
the project.
(3) The certification shall be in lieu of any license,
permit, certificate, or similar document required by any
agency pursuant to. but no; limited to, cnapter 125.
chapter 161, chapter 163. chanter 166, chapier 252.
chapter 25S, cnaoter 298. chaote' 370, chapter 373.
chapter 380, chaoter 381, chanter 387. cnapter 403 (ex-
cept as orovided in s. 403.789(1)). chapter 404, the Flor-
ida Transportation Cooe. or 33 U.S.C. s. 1341. Uoon cer-
tification. any license, lease, easement, or other interest
in state lands, tne une of which is vested in the Board
of Trustees of ine Internal Improvement Trust Fund, shall
be issued as a ministerial act.
(4) Nonprocedural requirements of the department
adopted subsequent to the issuance of certification by
the boara and applicable to the project may be incorpo-
rated into subsequent renewals of the hazardous waste
faciliiy permit pursuant to s. 403.722 and other applica-
ble requirements of this chapter.
History.—«. 4. cn. 69-2SS
403.7891 Revocation, suspension, or modification
of certification.—
(1) Any certification may be revoked or suspended,
or additional conditions may be imposed:
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(a) For any material false statement in the aDpiica-
tion or in the supplemental or additional statements of
fact or studies required cf the applicant.
(b) For failure to comply with the terms or conditions
of the certification.
(c) For violation of the provisions of ss. 403.78-
403.7893 or rules or orders issued thereunder.
(2) Any certification may be modified by the board
upon request of the department or the applicant when-
ever the applicant proposes, after certification, to signifi-
cantly expand the size of the facility or to significantly
alter the type of hazardous waste management activity
conducted at the facility. The department may modify a
certification without board action if the department and
the aQplicant stipulate to the modification.
Hlnory.-s. cn 89-225.
403.7892 Enforcement of compliance.—Failure to
obtain a certification, or to comply with the conditions
thereof, or to comply with this part constitutes a violation
of. and shall be enforceable pursuant to, this chapter.
Hlitory.—s. 4. cn. 89-285.
403.7893 Superseded laws, regulations, and certi-
fication power.—
(1) If any provision of ss. 403.78-403.7893 is in con-
flict with any other provision, limitation, or restriction
which is now in effect under any law of this state or any
ordinance of a local government, political subdivision, or
municipality, or any rule or regulation adopted thereun-
der, ss. 403.78-403.7893 shall control.
(2) The state hereby preempts the certification of
statewide multipurpose hazardous v iste treatment,
storage, and disposal facilities sited pursuant to ss.
403.78-403.7893.
(3) The board and the department shall have the
power to adopt reasonable procedural rules to carry out
their duties under ss. 403.78-403.7893 and to give effect
to the legislative intent that ss. 403.78-403.7893 provide
an efficient, expedited, centrally coordinated, one-stop
permitting process.
(4) Nothing in ss. 403.78-403.7893 prohibits a local
government from assessing reasonable impact fees,
special assessments, service charges, or user fees with
respect to the proposed project, provided that those
fees are specifically set forth in the certification.
(5) Sections 403.78-403.7893 do not preempt the
department's authority under s. 403.726.
History.—i. 4. en. 8&-2S5,
PART V
ENVIRONMENTAL REGULATION
403.801 Short title.
403.802 Declaration of policy.
403.803 Definitions.
403.804 Environmental Regulation Commission; pow-
ers and duties.
403.805 Secretary; powers and duties.
403.8055 Department adoption of federal standards.
403-809 Environmental districts: establishment: man-
agers; functions.
4C3.812 Dredge and fill permitting in stormwater
management systems.
403.813 Permits issued at district centers: excep-
tions.
403.8135 Citation of rule.
403.814 General permits: delegation.
403.815 Public notice; waiver of hearings.
403.816 Permits for maintenance dredging of deep-
water ports and beach restoration proj-
ects.
403.8163 Sites for disposal of spoil from maintenance
dredge operations; selection.
403.817 Legislative intent; determination of the natu-
ral landward extent of waters for regula-
tory purposes.
403.8171 Ratification of Rule 17-4.022, Florida Admin-
istrative Code, with additions and dele-
tions to the vegetation and soil indexes
and with limitations on the determination
of landward extent of waters.
403.801 Short title.—Chapter 75-22, Laws of Flor-
ida, shall be known and may be cited as the "Florida
Environmental Reorganization Act of 1975."
Hltiory.—9. 1. CD, 7S-22.
403.802 Declaration of policy.—Reasserting the
policies of the Governmental Reorganization Act of 1969
and the Florida Environmental Reorganization Act of
1975 which recognize that structural reorganization
should be a continuing process, and recognizing that
many years have passed since the passage of those
acts, it is the intent of the Legislature to promote more
efficient, effective, and economical operation of certain
environmental agencies by transferring decisionmaking
authority to environmental district centers and delegat-
ing to the water management districts permitting func-
tions related to water quality. Further, it is the intent of
this act to promote proper administration of Florida's
landmark environmental laws.
Mlttory.—«. 2. ch. 75-22: >. 61. civ 83-310.
403.803 Definitions.—When used in this act, the
term, phrase, or word:
(1) "Branch office" means a geographical area, the
boundaries of which may be established as a part of a
district.
(2) "Canal' is a manmade trench, the bottom of
which is normally covered by water with the upper
edges of its sides normally above water.
(3) "Channel" is a trench, the bottom of which is nor-
mally covered entirely by water, with the upper edges
of its sides normally below water.
(4) "Commission" means the Environmental Regula-
tion Commission.
(5) "Department" means the Department of Environ-
mental Regulation.
(6) "District" or "environmental district" means one of
the geographical areas, the boundaries of which are
established pursuant to this act.
(7) 'Drainage ditch" or "irrigation ditch" is a manmade
trench dug for the purpose of draining water from the
land or for transporting water for use on the land and is
not built for navigational purposes.
103
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(8) "Environmental district center" means the facili-
ties anc personnel which are centralized in each district
tor the purposes ol carrying out the provisions of this
act.
(9) "Headquarters' means the physical location of
the offices of the secretary and the division directors of
the department.
(10) "Insect control impoundment dikes" means artifi-
cial structures, including earthen berms, constructed
and used to impound waters for the purpose of insect
control.
(11) "Manager" means the head of an environmental
district or branch office who shall supervise all environ-
mental functions of the department within such environ-
mental district or branch office.
(12) "Secretary" means the secretary of the Depart-
ment of Environmental Regulation.
(13) "Standard" means any rule of the Department of
Environmental Regulation relating to air and water qual-
ity, noise, solid-waste management, and electric and
magnetic fields associated with electrical transmission
and distribution lines and substation facilities. The term
"standard" does not include rules of the department
which relate exclusively to the internal management of
the department, the procedural processing of applica-
tions, the administration of rulemaking or adjudicatory
proceedings, the publication of notices, the conduct of
hearings, or other procedural matters.
(14) "Swale" means a manmade trench which:
(a) Has a top width-to-depth ratio of the cross-
section equal to or greater than 6:1, or side slopes equal
to or greater than 3 feet horizontal to 1 foot vertical;
(b) Contains contiguous areas of standing or flowing
water only following a rainfall event;
(c) Is planted with or has stabilized vegetation suit-
able for soil stabilization, stormwater treatment, and
nutrient uptake; and
(d) Is designed to take into account the soil erodi-
bility, soil percolation, slope, slope length, and drainage
area so as to prevent erosion and reduce pollutant con-
centration of any discharge.
History.—t. 3. tfv 75-22; • 62. en. 83-310: • 40. ch. 84-338: a. 9. ch. 88-173:
s. 56. en. 86-166.
403.804 Environmental Regulation Commission;
powers and duties.—
(1) The commission shall exercise the exclusive
standard-setting authority of the department, except as
provided in subsection (2) and ss. 120.54(9) and
373.114. The commission may adopt procedural rules
governing the conduct of its meetings and hearings.
(2) The department shall have a study conducted of
the economic and environmental impact which sets
forth the benefits and costs to the public of any pro-
posed standard that would be stricter or more stringent
than one which has been set by federal agencies pursu-
ant to federal law or regulation. Such study as is pro-
vided for in this subsection shall be submitted to the
commission, which shall initially adopt the standard.
Final action shall be by the Governor and Cabinet, who
shall accept, reject, modify, or remand for further pro-
ceedings the standard within 60 days from the submis-
sion. Such review shall be appellate in nature. Hearings
shall be in accordance with the provisions of chapter
120.
(3) The commission shall establish priorities and
have final state approval on applications for, and dis-
bursements of, federal and state grants for the construc-
tion of wastewater or water treatment works. In estab-
lishing priorities for state grants under this act, an appli-
cation shall not receive a lower priority solely because
the proposed project includes reserve capacity for
which the incremental costs will be paid by the applicant
in accordance with s. 403.1826(6).
HUtory.—1.6. cn. 7S-22: js. 4. 5. cn. 60-66: J. W. crv 83-310: s. 41. ch. 84-338:
s. l. eft. 88-043.
403.805 Secretary; powers and duties.—The secre-
tary shall have the powers ana duties of heads of depart-
ments set forth in chapter 20. including the power to
aaopt rules under chapter 253, chaoter 373, chapter
376, and this chapter, except that the Environmental
Regulation Commission shall exercise the exclusive
standard-setting authority of the department pursuant
to s. 403.804. The secretary shall employ legal counsel
to represent the department in matters affecting the
department. Except for appeals on permits specifically
assigned by this act to the Governor and Cabinet, and
unless otherwise prohibited by law, the secretary may
delegate the authority assigned to the department by
this act to the assistant secretary, division directors, ana
district and branch office managers and to the water
management districts.
i. 6. cn. 75-22: «. 6. ch. 00-66: i. 2. en. 80-394: •. 63. ch. 83-310: i
3, ch. 87-337: ». 10. ch. 87-374; ». 13. ch. 88-333.
403.8055 Department adoption of federal stand-
ards.—Notwithstanding ss. 120.54 and 403.804, the
secretary is empowered to adopt rules substantively
identical to regulations adopted in the Federal Register
by the United States Environmental Protection Agency
pursuant to federal law, in accordance with the following
procedures:
(1) The secretary shall publish notice of intent to
adopt a rule pursuant to this section in the Florida
Administrative Weekly at least 21 days prior to filing the
rule with the Department of State. The secretary shall
mail a copy of the notice of intent to adopt a rule to the
Administrative Procedures Committee at least 21 days
prior to the date of filing with the Department of State.
Prior to filing the rule with the Department of State, the
secretary shall consider any written comments received
within 21 days after the date of publication of the notice
of intent to adopt a rule. The rufe shall be adopted upon
filing with the Department of State. Substantive changes
from the rules as noticed shall require republishing of
notice as required in this section.
(2) Any rule adopted pursuant to this section shall
become effective upon the date designated in the rule
by the secretary; however, no such rule shall become
effective earlier than the effective date of the substan-
tively identical United States Environmental Protection
Agency regulation.
(3) The secretary shall stay any terms or conditions
of a permit implementing department rules adopted pur-
suant to this section if the substantively identical provi-
sions of a United States Environmental Protection
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
Agency regulation have been stayed under federal judi-
cial review. A stay issued pursuant to this subsection
shall terminate upon completion ot federal judicial
review.
(4) Any domestic for-profit or nonprofit corporation
or association formed, in whole or in part:
(a) To promote conservation or natural beauty;
(b) To protect the environment, personal health, or
other biological values;
(c) To preserve historical sites;
(d) To promote consumer interests;
(e) To represent labor, commercial, or industrial
groups: or
(f) To promote orderly development;
and any other substantially affected person may, within
14 days after the date of publication of t» e notice of
intent to adopt a rule, file an objection to rulemaking with
the Environmental Regulation Commission. The objec-
tion shall specify the portions of the proposed rule to
which the person objects and the reasons for the objec-
tion. The secretary shall not have the authority under
this section to adopt those portions of a proposed rule
specified in such objection. Objections which are frivo-
lous shall not be considered sufficient to prohibit the
secretary from adopting rules under this section.
(5) Whenever all or part of any rule proposed for
adoption by the department is substantively identical to
a regulation adopted in the Federal Register by the
United States Environmental Protection Agency pursu-
ant to federal law, such rule shall be written in a manner
so that the rule specifically references such regulation
whenever possible.
Hlnory.-J. 7. eft. 80-66; «. 11. cn. 82-27; «. 38. ch. 88-130.
403.809 Environmental districts; establishment;
managers; functions.—
(1) The secretary shall establish environmental dis-
tricts. The boundaries of the environmental districts
shall coincide with the boundaries of the water manage-
ment districts, and a water management district may be
divided into more than one environmental district. The
secretary has the authority to adjust the environmental
district boundaries upon a determination that excep-
tional circumstances require such adjustment in order to
more properly serve the needs of the public or the envi-
ronment. The secretary may establish branch offices for
the purpose of making services more accessible to the
citizens of each district. In the Suwannee River Water
Management District, a branch office may serve as the
environmental district center. By July 1, 1984, the
department shall collocate part of its permitting opera-
tions with each of the central offices of the water man-
agement districts, and the water management districts
shall collocate part of their permitting operations with
each of the district offices of the department.
(2) There shall be a manager for each environmental
district who shall be appointed by, and serve at the
pleasure of, the secretary. The district manager shall
maintain his office in the environmental district center,
which shall be collocated with an office of a water man-
agement district. Each branch office shall have a branch
office manager. The water management districts are
encouraged to collocate part of their permitting opera-
tions with the branch offices of the department to the
maximum extent practicable.
(3)(a) Field services and inspections required in sup-
port of ine decisions of the department relating to the
issuance of permits, licenses, certificates, or exemp-
tions shall be accomplished at the environmental district
center level to the maximum extent practicable, except
where otherwise delegated by the secretary.
(b) The processing of all applications for permits,
licenses, certificates, and exemptions shall be accom-
plished at the district center or the branch office, except
for those applications specifically assigned elsewhere in
the department pursuant to s. 403.805 or to the water
management districts under's. 403.812 and those appli-
cations assigned by interagency agreement as provided
in this act. However, the secretary, as head of the
department, may not delegate to district or subdistrict
managers, water management districts, or any unit of
local government the authority to act on the following
types of permit applications:
1. Certification of national pollutant discharge elimi-
nation system permits pursuant to Pub. L. No. 92-500,
s. 401.
2. Construction of major air pollution sources.
3. Certifications under the Florida Electrical Power
Plant Siting Act or the Transmission Line Siting Act.
History.—ss. 4. 6. cn. 7S-22. •. 67. cn. 83-310: s. <2. ch. &a-o38: *• 15. ch.
88-392.
'Not#.—Section 39. cft. 89-279. substantially rewofOea a. 403.612. removing all
references io the delegation ot (unctions 10 water management aistr»cis.
403.812 Dredge and fill permitting in stormwater
management systems.—The department shall not
require dredge and fill permits for stormwater manage-
ment systems where such systems are located land-
ward of the point of connection to waters of the state
and are designed, constructed, operated, and main-
tained for stormwater treatment, flood attenuation, or irri-
gation. The waters within such systems, unless
designed, constructed, operated, and maintained for in-
water recreational uses, such as swimming and boating,
shall not be considered waters of the state; however, if
the system provides other incidental uses and is acces-
sible to the public, then the department may require rea-
sonable assurance that .vi_;er quality within the system
will not adversely impact public health, fish and wildlife
in adjacent waters, or adjacent waters. The department
shall not require dredge and fill permits for structures
designed solely to connect stormwater management
systems to waters of the state proviaed that the connec-
tion of such system to waters of the state is regulated
pursuant to chapter 373. The department shall initiate
rulemaking to implement the provisions of this section.
History.—*. 6. ch. 75-22: >. 68. ch. 63-310: t. 6. cfi. 84-79; •. 3. eft. 85-1S*: s.
39. ch. 89-279.
403.813 Permits issued at district centers; excep-
tions.—
(1) The secretary shall adopt procedural rules pro-
viding for a short-form application for, and issuance at
the district centers of, permits for;
(a) Projects which affect less than 10 acres of juris-
dictional area and are within the landward extent of
waters of the state that are directly impacted by dredg-
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
ing or filling, including other areas severed from or con-
nected to waters of the stale as a result of dredge and
fill activities.
(b) Docking facilities of less than 10 wet slips, which
facilities do no; provide commercial or marine supplies
or services.
(c) New seawalls or similar structures which do not
exceed 500 linear feet of shoreline.
(d) The installation of subaqueous transmission and
distribution lines laid on, or embedded in, the bottoms
of waters of the state carrying water, electricity, commu-
nication cables, oil, and gas, except as exempted by
paragraph (2)(m) or paragraph (2)(n).
(e) Other similar projects that are iimited in scope as
specified by rule.
(2) No permit under this chapter, chapter 373, chap-
ter 61-691, Laws of Florida, or chapter 25214 or chapter
25270, Laws of Florida, 1949, shall be required for activi-
ties associated with the following types of projects; how-
ever, nothing in this subsection relieves an applicant
from any requirement to obtain permission to use or
occupy lands owned by the Board of Trustees of the
Internal Improvement Trust Fund or any water manage-
ment district in its governmental or proprietary capacity
or from complying with applicable local pollution control
programs authorized under this chapter or other require-
ments of county and municipal governments:
(a) The installation of overhead transmission lines,
with support structures which are not constructed in
waters of the state and which do not create a naviga-
tional hazard.
(b) The installation and repair of mooring pilings and
dolphins associated with private docking facilities and
the installation of private clocks, any of which docks:
1. Has 500 square feet or less of over-water surface
area for a dock which is located in an area designated
as Outstanding Florida Waters or 1,000 square feet or
less of over-water surface area for a dock which is
located in an area which is not designated as Outstand-
ing Florida Waters;
2. Is constructed on or held in place by pilings or is
a floating dock which is constructed so as not to involve
filling or dredging other than that necessary to install the
pilings;
3. Shall not substantially impede the flow of water
or create a navigational hazard;
4. Is used for recreational, noncommercial activities
associated with the mooring or storage of boats and
boat paraphernalia; and
5. Is the sole dock constructed pursuant to this
exemption as measured along the shoreline for a dis-
tance of 65 feet, unless the parcel of land or individual
lot as platted is less than 65 feet in length along the
shoreline, in which case there may be one exempt dock
allowed per parcel or lot.
Nothing in this paragraph shall prohibit the department
from taking appropriate enforcement action pursuant to
this chapter to abate or prohibit any activity otherwise
exempt from permitting pursuant to this paragraph if the
department can demonstrate that the exempted activity
has caused water pollution in violation of this chapter.
(c) The installation and maintenance to design spec-
ifications of boat ramps on artificial bodies of water
where navigational access to the proposed ramp exists
or the installation of boat ramps open to the public in any
waters of the state where navigational access to the pro-
posed ramp exists and where the construction of the
proposed ramp will be less than 30 feet wide and will
involve the removal of less than 25 cubic yards of mate-
rial from the waters of the state, and the maintenance to
design specifications of such ramps; however, the mate-
rial to be removed shall be placed upon a self-contained
upland site so as to prevent the escape of the spoil
material into the waters of the state.
(d) The reolacement or repair of existing cocks,
except that no fill material is to be used and provided
that the replacement or repaired dock is in the same
location and of the same configuration and dimensions
as the dock being replaced or repaired.
(e) The restoration of seawalls at their previous loca-
tions or upland of, or within 1 foot waterward of, their pre-
vious locations. However, this shall not affect the permit-
ting requirements of chapter 161, and department rules
shall clearly indicate that this exception does not consti-
tute an exception from the permitting requirements of
chapter 161.
(f) The performance of maintenance dredging of
existing manmade canals, channels, and intake and dis-
charge structures where the spoil material is to be
removed and deposited on a self-contained, upland
spoil site which will prevent the escape of the spoil
material into the waters of the state, provided that no
more dredging is to be performed than is necessary to
restore the canals, channels, and intake and discharge
structures to original design specifications and provided
that control devices are utilized to prevent turbidity and
prevent toxic or deleterious substances from discharg-
ing into adjacent waters during maintenance dredging.
This exemption applies to all canals constructed prior to
April 3,1970, and to those canals constructed on or after
April 3, 1970, pursuant to all necessary state permits.
This exemption does not apply to the removal of a natu-
ral or manmade barrier separating a canal or canal sys-
tem from adjacent waters. When no previous permit has
been issued by the Board of Trustees of the Internal
Improvement Trust Fund or the United States Army
Corps of Engineers for construction or maintenance
dredging of the existing manmade canal or intake or dis-
charge structure, such maintenance dredging shall be
limited to a depth of no more than 5 feet below mean low
water. The Board of Trustees of the Internal Improve-
ment Trust Fund may fix and recover from the permittee
an amount equal to the difference between the fair mar-
ket value and the actuai cost of the maintenance dredg-
ing for material removed during such maintenance
dredging. However, no charge shall be exacted by the
state for material removed during such maintenance
dredging by a public port authority. The removing party
may subsequently sell such material; however, pro-
ceeds from such sale that exceed the cos\s of mainte-
nance dredging shall be remitted to the state and
deposited in the Internal Improvement Trust Fund.
(g) The maintenance of existing insect control struc-
tures, dikes, and irrigation and drainage ditches, pro-
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
vided that spoil material is deposited on a self-
contained. upland spoil site which will prevent the
escape ci the spoil material into waters of '.he state. In
the case of insect control structures, if the ccst of using
a self-contained upland spoil site is so excessive, as
determined by the Department of Health and Rehabilita-
tive Services, pursuant to s. 403.088(1), that it will inhibit
proposed insect control, then existing spoil sites or
dikes may be used, upon notification to the department.
In the case of insect control where upland spoil sites are
not used pursuant to this exemption, turbidity control
devices shall be used to confine the spoil material dis-
charge to that area previously disturbed when the
receiving body of water is used as a potable water sup-
ply. is designated as shellfish harvesting waters, or func-
tions as a habitat for commercially or recreationally
important shellfish or finfish. In all cases, nc more dredg-
ing is to be oerformed than is necessary to restore the
dike or irrigation or drainage ditch to its original design
specifications.
(h) The repair or replacement of existing functional
pipes or culverts the purpose of which is the discharge
or conveyance of stormwater. In all cases, the invert ele-
vation, the diameter, and the length of the culvert shall
not be changed. However, the material used for the cul-
vert may be different from the original.
(i) The construction of private docks and seawalls
in artificially created waterways where such construction
will not violate existing water quality standards, impede
navigation, or affect flood control.
(j) The construction and maintenance of swales.
(k) The installation of aids to navigation and buoys
associated with such aids, provided :he devices are
marked pursuant to s. 327.40.
(I) The replacement or repair of existing open-
trestle foot bridges and vehicular bridges that are 100
feet or less in length and two lanes or less in width, pro-
vided that no more dredging or filling of submerged
lands is performed other than that which is necessary to
replace or repair pilings and that the structure to be
replaced or repaired is the same length, the same con-
figuration, and in the same location as the original
bridge. No debris from the original bridge shall be
allowed to remain in the waters of the state.
(m) The installation of subaqueous transmission and
distribution lines laid on, or embedded in, the bottoms
of waters in the state, except in Class I and Class II
waters and aquatic preserves, provided no dredging or
filling is necessary.
(n) The replacement or repair of subaqueous trans-
mission and distribution lines laid on, or embedded in,
the bottoms of waters of the state.
(o) The construction of private seawalls in waters of
the state where such construction is between and
adjoins at both ends existing seawalls, follows a continu-
ous and uniform seawall construction line with the exist-
ing seawalls, is no more than 150 feet in length, and
does not violate existing water quality standards,
impede navigation, or affect flood control. However, this
shall not affect the permitting requirements of chapter
161, and department rules shall clearly indicate that this
exception does not constitute an exception from the
permitting requirements of chapter 161.
(p) The restoration of existing insect control
impoundment dikes which are less than 100 feet in
length. Such impoundments shall be connected to tid-
ally influenced waters for 6 montns each year beginning
September 1 anc ending February 23 if feasible or oper-
ated in accordance with an impoundment management
plan approved by the department. A dike restoration
may involve no more dredging than is necessary to
restore the dike to its original design specifications. For
the purposes of this paragraph, restoration does not
include maintenance of impoundment dikes of operating
insect control impoundments.
(q) The construction, operation, or maintenance of
stormwater management facilities which are designed
to serve single family residential projects, including
duplexes, triplexes, and auadruplexes. if they are less
than 10 acres total land and have less than 2 acres of
impervious surface and if the facilities:
1. Comply with all regulations or ordinances appli-
cable to stormwater management and adopted by a city
or county;
2. Are not part of a larger common plan of develop-
ment or sale; and
3. Discharge into a stormwater discharge facility
exempted or permitted by the department under this
chapter which has sufficient capacity and treatment
capability as specified in this chapter and is owned,
maintained, or operated by a city, county, special district
with drainage responsibility, or water management dis-
trict," however, this exemption does not authorize dis-
charge to a facility without the facility owner's prior writ-
ten consent.
(3) The provisions of subsection (2) are superseded
by general permits established pursuant to ss. 373.118
and 403.814 which include the same activities. Until
such time as general permits are established, or should
general permits be suspended or repealed, the exemp-
tions under subsection (2) shall remain or shall be rees-
tablished in full force and effect.
Hlttoiy.—s. 7. eft. 75-22: s. 143. cn. 77-10*: t. 4. ch. 78-98: s. 1. ch. 78-146: s.
86. ch. 79-65: s. l. ch. 80-M: s. 8. cfv 80-66: ». 3. ch. 82-60. j. 6. ch. 82-185: s.
65. ch. 83-218: s. 69. ch. 83-310: s. *3. ch. 84-338: j. 39. cn. 85-55: s. 12. crv
86-138: v 44. cn. 86-186: «s. 1. 3. cn. 89-324.
403.8135 Citation of rule.—In addition to any other
provisions within this pari or ai'iy rules promulgated here-
under, the permitting agency shall, when requesting
information for a permit application pursuant to this part
or suCh rules promulgated hereunder, cite a specific
rule. If a request for information cannot be accompanied
by a rule citation, failure to provide such information can-
not be grounds to deny a permit.
History.—s. 9. ch. 79-161.
403.814 General permits; delegation.—
(1) The secretary is authorized to adopt rules estab-
lishing and providing for a program of general permits
under chapters 253 and 403 for projects, or categories
of projects, which have, either singly or cumulatively, a
minimal adverse environmental effect. Such rules shad
specify design or performance criteria which, if applied,
would result in compliance with appropriate standards
adopted by the commission. Except as provided for in
subsection (3), any person complying with the require-
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
ments of a general permit may use the permit 30 days
a(:er giving notice to the department without any
agency action by the department.
(2) After giving public notice and, upon the request
of any person, holding a public hearing in the area
affected, the department may issue a general permit in
the Biscayne Bay Aquatic Preserve for the placement of
riprap waterward of vertical seawalls or as replacement
for vertical seawalls, for the purpose of enhancing the
water quality and fish and wildlife habitats of the Bis-
cayne Bay area. No other general permits shall be
issued within the preserve. Nothing herein shall be con-
strued to abrogate the rights of any person under the
provisions of chapter 120. In addition to the public notice
required by this subsection, public notice shall be pro-
vided by United States mail to any person who requests,
in writing, to have his name placed on a mailing list by
the department. Notice of activities allowed pursuant to
such general permit shall also be mailed, at least
monthly, to all persons on the list.
(3) The department may publish or by rule require
the applicant to publish, or the applicant may elect to
publish, in a newspaper of general circulation in the area
affected, notice of application for a general permit. If
published, such public notice of application shall be
published within 14 days after the applicant notifies the
department; and, within 21 days after publication of
notice, any person whose substantial interests are
affected may request a hearing in accordance with s.
120.57. The failure to request a hearing within 21 days
after publication of notice constitutes a waiver of any
right to a hearing under s. 120.57. If notice is published,
no person shall begin work pursuant to a general permit
until after the time for requesting a hearing has passed
or until after a hearing is held and a decision is rendered.
(4) The department is authorized to delegate any of
its general permit authority to the district offices of the
department or to water management districts.
(5) Notwithstanding the procedures set forth in sub-
sections (1) and (3), the department may specify by rule
alternative notice procedures for certain activities which
are of a routine and repetitive nature and which are an
integral part of agricultural activities or silvicultural activi-
ties or are activities of another state agency.
History.—a. 9. eft. 80-66: ». 12, eft. 82-27; t. 7. eft. 84-79: >. 60. en. 86-186: >.
2. eft. 86-295.
403.815 Public notice; waiver of hearings.—The
department may publish or by rule require the applicant
to publish, or the applicant may elect to publish, in a
newspaper of general circulation in the area affected,
notice of application for a permit submitted under this
chapter or chapter 253. The notice of application shall
be published within 14 days after the application is filed
with the department. Notwithstanding any provision of
s. 120.60, the department may publish or by rule require
the applicant to publish, or the applicant may elect to
publish, in a newspaper of general circulation in the area
affected, notice of proposed agency action on any per-
mit application submitted under this chapter or chapter
253: The department shall require the applicant for a
permit to construct or expand a solid waste facility to
publish such notice. The notice of proposed agency
action shall be published at least 14 days prior to final
agency action. The 20-day time period specified in s.
120.60(2) shall be tolled by the request of the depart-
ment for publication of notice of proposed agency action
and shall resume 14 days af'.sr receipt by the depart-
ment of proof of publication. However. if a petition is filed
for a proceeding pursuant to s. 120.57, the time periods
and tolling provisions of s. 120.60 shall apply. The cost
of publication of notice under this section shall be paid
by the applicant. The secretary may, by rule, specify the
format and size of such notice. Within 14 days after pub-
lication of notice of proposed agency action, any person
whose substantial interests are affected may request a
hearing in accorcance with s. 120.57. The faiiure to
request a hearing within 14 days after publication of
notice of proposed agency action constitutes a waiver
of any right to a hearing on the application under s.
120.57.
Hlaiory.—i. 10. crv 80-66. i. 13. eft. 82-27: t. 44. eft. 84-338: •. 48. ch. 87-225.
403.816 Permits for maintenance dredging of
deepwater ports and beach restoration projects.—
(1) The department shall establish a permit system
under this chapter and chapter 253 which provides for
the performance, for up to 25 years from the issuance
cf the original permit, of maintenance dredging of per-
mitted navigation channels, port harbors, turning basins,
harbor berths, and beach restoration projects approved
pursuant to chapter 161. However, permits issued for
dredging river channels which are not a part of a deep-
water port shall be valid for no more than five years. No
charge shall be exacted by the state for material
removed during such maintenance dredging by a public
port authority.
(2) The provisions of s. 253.77 do not apply to a per-
mit for maintenance dredging and spoil site approval
when there is no change in the size or location of the
spoil disposal site and when the applicant provides doc-
umentation to the department that the appropriate
lease, easement, or consent of use for the project site
issued pursuant to chapter 253 is recorded in the county
where the project is located.
(3) The provisions of this section relating to ports
apply only to the port waters, spoil disposal sites, port
harbors, navigation channels, turning basins, and harbor
berths used for deepwater commercial navigation in the
ports of Jacksonville, Tampa, Port Everglades, Miami.
Port Canaveral. Ft. Pierce, Palm Beach, Port Manatee,
Port St. Joe, Panama City, St. Petersburg, Port Bartow,
Florida Power Corporation's Crystal River Canal, Boca
Grande, Green Cove Springs, and Pensacola.
MIMOfy.—ft. 3. 5. ex. 81-228: i. 8. eft. 84-79: r 2. eft. 85-296: • 13. eft. 86-138:
t. 20. eft. 89-175: >. 4. eft. 89-324.
403.8163 Sites (or disposal of spoil from mainte-
nance dredge operations; selection.—Lands created
by spoil or used as dredge spoil sites must be given pri-
ority consideration as sites for disposal of spoil in main-
tenance dredge operations, except when the Division of
Beaches and Shores of the Department of Natural
Resources determines that the spoil, or some substan-
tial portion thereof, may be placed as compatible sedi-
ment into the littoral system of an adjacent sandy beach
108
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
or coastal barrier dune system for the preservation and
protection of such beach or dune system.
Mliiory.—c cn 8*-338. a. u. ch B6-13S
403.817 Legislative intent; determination of the
natural landward extent of waters for regulatory pur-
poses.—
(1) It is recognized that the levels of the waters of the
state naturally rise and fall, depending upon tides and
other nydrological, meteorological, and geological cir-
cumstances and features. The natural rise and fall of the
waters is essential to good water quality, but often
makes it difficult to determine the natural landward
extent of the waters. Therefore, it is the intent of the Leg-
islature that the Department of Environmental Regula-
tion establish a method of making such determinations,
based upon ecological factors which represent these
fluctuations in water levels.
(2) In order to accomplish the legislative intent
expressed in subsection (1), the department is author-
ized to establish by rule, pursuant to chapter 120, the
method for determining the landward extent of the
waters of the state for regulatory purposes. Such extent
shall be defined by species of plants or soils which are
characteristic of those areas subject to regular and peri-
odic inundation by the waters of the state. The applica-
tion of plant indicators to any areas shall be by dominant
species. However, no landowner shall suffer any prop-
erty loss or gain because of vegetation changes due to
mosquito control activities conducted upon his prop-
erty, provided these activities are or have been
undertaken as part of a governmental mosquito control
program. To the extent that certain lends have come
within department jurisdiction pursuaru to this section
or chapter 253 solely due to insect control activities,
these lands shall not be subject to permitting require-
ments for the discharge of dredge or fill material.
(3) Amendments adopted after April 5, 1977, to the
rules of the department adopted before April 5, 1977,
relating to dredging and filling and which involve addi-
tions or deletions of the vegetation or soil indexes or the
addition or deletion of exemptions shall be submitted in
bill form to the Speaker of the House of Representatives
and to the President of the Senate for their consideration
and referral to the appropriate committees. Such rule
amendments shall become effective only upon approval
by act of the Legislature. However, whenever the Legis-
lature amends any exemption relating to dredging and
filling, the department may amend its rules to make
them consistent with changes made by the Legislature.
(4) To the extent that any plant or soil indicators are
enacted into law by the Legislature for the purpose of
defining the landward extent of the waters of the state
for regulatory purposes, the plant or soil indicators
adopted by the department regarding areas covered by
legislation shall be consistent with said legislation.
(5) The landward extent of waters as determined by
the rules authorized by this section shall be for regula-
tory purposes only and shall have no significance with
respect to sovereign ownership.
MUtory.—>1 I. 2, ch. 77-170; • 5. cn. 78-98: t. 5. ch. BS-269; •. 2. ch. BS-334.
403.8171 Ratification of 'Rule 17-4.022, Florida
Administrative Code, with additions and deletions to
the vegetation and soil indexes and with limitations on
the determination of landward extent of waters.—Pur-
suant to s. 403.817. ihe Legislature ratifies the rule
adopted on January 25, 1984, by the Environments'
Regulation Commission with the following changes:
(1)(a) In 'Rule 17-4.022(2), Florida Administrative
Code, the following shall be removed: Biechnum serrula-
tum, Carex leptalea: Carex stipata; Carya aquatica: Con-
ocarpus erecius; Crataegus viridis: Cymodocea liiilor-
mis: Cyperus odoratus: Dichromena spp.: Dryopteris
ludoviciana; Gleditsia aquatica: Gratiola ramosa:
Halodule beaudettei; Hypericum iasciculatum: lllicium
lloridanum: Liriodendron tulipilera in all counties south
of Taylor, Lafayette, Suwannee, Columbia, Baker, and
Duval: Lycopus rubellus: Myrica in odor a: Osmunda
spp.: Paricum repens; Panicum virgaturr; Pluchea spp.:
Polygala cymoss: Populus deltoides: Rhexia. all species
except R. slitanus. R. lutea, R. mariana, R. petiolata, and
R. virginica. Sabatia bartramii: Sarracenia spp.: Sch-
izachyrium rhizomatum: Sesuvium maritimum: Sesu-
vium portulacastrum: Spartina spp.: Thalassia tes-
tudinum; and Woodwardia spp.
(b) In 'Rule 17-4.022(2), Florida Administrative
Code, the following shall be added: Muhlenbergia capil-
laris: Muhlenbergia schreberi: Osmunda regalis: Rhexia
parvillora: Rhexia salicifolia: and Spartina, all species
except S. bakerii.
(2)(a) In 'Rule 17-4.022(3), Florida Administrative
Code, the following shall be removed: Acer spp.: Bac-
chacis halimilolia: Carya glabra in all counties west of
Dixie, Gilchrist, and Columbia; Cliftonia monophylla:
Cyrilla racemillora: Liriodendron tulipifera in all counties
north and west of and including Taylor, Lafayette,
Suwannee, Columbia, Baker, and Duval: Melaleuca
quinquenervia: Muhlenbergia spp.: Rhexia alifanus:
Rhexia lutea: Rhexia mariana: Rhexia petiolata: Rhexia
virginica: Sabal palmetto: Schinus terebinthilolius: and
Ulmus spp.
(b) In 'Rule 17-4.022(3), Florida Administrative
Code, the following shall be added: Acer rubrum: Acer
saccharinum: Acer negundo: Biechnum serrulatum:
Carex leptalea: Carex stipata: Carya aquatica: Conocar-
pus erectus: Crataegus viridis: Cyperus odoratus:
Dichromena spp.: Dryopteris ludoviciana: Gleditsia
aquatica: Gratiola ramosa. Hypericum Iasciculatum: llli-
cium lloridanum: Liriodendron tulipilera: Lycopus rubel-
lus: Myrica inodora: Osmunda cinnamomea: Panicum
repens: Panicum virgatum: Pluchea spp.: Polygala
cymosa: Populus deltoides: Rhexia, all species except
R. parvillora and R. salicilolia: Sabatia banramii: Sarra-
cenia spp. : Schizachyrium rhizomatum: Sesuvium mari-
timum; Sesuvium portulacastrum: Spartina bakerii:
Ulmus, all species except U. rubra: and Woodwardia
spp.
(3) In 'Rule 17-4 022( 1 )(d), Florida Administrative
Code, the following sentences shall be added: "If both
parties agree to use more than one stratum, the follow-
ing methods for a combination of strata shall be used in
a manner to ensure that sufficient representative data
will be generated. The methods described in subpara-
graphs (c)1., 2., and 3. shall be used for the appropriate
strata. The percentages obtained shall be added and
the sum divided by the number of strata examined. The
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
number generated by this procedure shall be substi-
tuted for areal extent in paragraph (a) or paragraph (b)
above. When a combination of strata,is used, the follow-
ing shall be added to 'Rule 17-4.022(2), Florida Adminis-
trative Code: Blechnum serrulatum, Carex leptalea.
Carex stipata, Crataegus viridls, Osmunda spp., Pluchea
spp., and Woodwardia spp. Concurrently the following
shall be added to 'Rule 17-4.022(3), Florida Administra-
tive Code: Axonopus furcatus, Flaveria spp., Metopium
toxilerum, Myrica ceritera, Sabal minor, and Sympolcos
tmctoria'
(4) Cliltonia monophylla, Cyritla racemiflora.
Melaleuca quinquener\-ia. SaPal palmetto, and Schinus
terebinthifolius shall not be considered submerged,
transitional, or upland species. In areas vegetated by
any of these five species, the department shall deter-
mine the landward extent of waters using the remaining
plant species or other indicators of regular and periodic
inundation as provided in "Rule 17-4.022(1), Florida
Administrative Code.
(5) In all areas of the state, the landward extent of
waters shall be demarcated by 'Rule 17-4.022, Florida
Administrative Code; however, in no case shall the land-
ward extent of such waters extend above the elevation
of the 1-in-10-year recurring flood event or the area of
land with standing or flowing water for more than 30 con-
secutive days per year calculated on an average annual
basis, whichever is more landward. The extent of the
flood line shall be developed by appropriate engineering
techniques, and a description of the surveyed line shall
be prepared and certified by a professional land sur-
veyor registered in this state. The burden for determin-
ing the surveyed flood line shall be with the party wish-
ing to use this alternative. Notwithstanding the above,
for waters which are saline or brackish, or for rivers the
major sources of flow of which are from springs, the
landward extent of waters shall be demarcated solely by
1Rule 17-4.022, Florida Administrative Code. The provi-
sions of this subsection shall not operate to reduce the
landward extent of the jurisdiction of the department as
such jurisdiction existed prior to January 24, 1984.
History.—*. 9. ch- 84-79.
'Not*.—-Transferrea to another location.
PART VI
DRINKING WATER
403.850 Short title.
403.851 Declaration of policy; intent.
403.852 Definitions.
403.853 Drinking water standards.
403.8535 Citation of rule.
403.854 Variances, exemptions, and waivers.
403.855 Imminent hazards.
403.856 Plan for emergency provision of water.
403.857 Notification of users and regulatory agen-
cies.
403.858 Inspections.
403^859 Prohibited acts.
403.860 Penalties and remedies.
403.861 Department; powers and duties.
403.862 Department of Health and Rehabilitative Ser-
vices; public water supply duties and
responsibilities: coordinated budget
requests with Department of Environmen-
tal Regulation.
4C3.863 State public water supply laboratory certifi-
cation program.
403.8635 State drinking water sample laboratory certi-
fication program.
403.864 Public water supply accounting program.
403.850 Short title.—This act may be cited as the
"Florida Safe Drinking Water Act."
Hlitory.—s. 1. cfi. 77-337.
403.851 Declaration of policy; intent.—It is the pol-
icy of the state that the citizens of Florida shall De
assured of the availability of safe drinking water. Recog-
nizing that this policy encompasses both environmental
and public health aspects, it is the intent of the Legisla-
ture to provide a water supply program operated jointly
by the Department of Environmental Regulation, in a
lead-agency role of primary responsibility for the pro-
gram, and by the Department of Health and Rehabilita-
tive Services and its units, including county health
departments, in a supportive role with specific duties
and responsibilities of its own. Without any relinquish-
ment of Florida's sovereign powers and responsibilities
to provide for the public health, public safety, and public
welfare of the people of Florida, the Legislature intends:
(1) To give effect to Pub. L. No. 93-523 promulgated
under the commerce clause of the United States Consti-
tution, to the extent that interstate commerce is directly
affected.
(2) To encourage cooperation between federal,
state, and local agencies, not only in their enforcement
role, but also in their service and assistance roles to city
and county elected bodies.
(3) To provide for safe drinking water at all times
throughout the state, with due regard for economic fac-
tors and efficiency in government.
Mlitonr.—2. eft. 77-337; t 162. CIV 7&-400.
403.852 Definitions.—As used in ss. 403.850-
403.864:
(1) "Department* means the Department of Environ-
mental Regulation, which is charged with the primary
responsibility for the administration and implementation
of the Florida Safe Drinking Water Act.
(2) "Public water system" means a community, non-
transient noncommunity, or noncommunity system for
the provision to the public of piped water for human con-
sumption, provided tha* such system has at least 15 ser-
vice connections or regularly serves at least 25 individu-
als daily at least 60 days out of the year. The term
includes:
(a) Any collection, treatment, storage, and distribu-
tion facility or facilities under control of the operator of
such system and used primarily in connection with such
system.
(b) Any collection or pretreatment storage facility or
facilities not under control of the operator of such sys-
tem but used primarily in connection with such system.
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(3) "Community water system" means a public water
system which serves at least 15 service connections
used by year-round residents or regularly serves at least
25 year-round residents.
(4) "Noncommunity water system" means a public
water system for provision to the public of piped water
for human consumption, which serves at least 25 individ-
uals daily at least 60 days out of the year, but which is
not a community water system; except that a water sys-
tem for a wilderness educational camp is a noncom-
munity water system.
(5) "Person" means an individual, public or private
corporation, company, association, partnership, munici-
pality, agency of the state, district, federal agency, or
any other legal entity, or its legal representative, agent,
or assigns.
(6) "Municipality" means a city, town, or >ther public
body created by or pursuant to state law or an Indian
tribal organization authorized by law.
(7) "Federal agency" means any department,
agency, or instrumentality of the United States Govern-
ment.
(8) "Supplier of water" means any person who owns
or operates a public water system.
(9) "Contaminant" means any physical, chemical,
biological, or radiological substance or matter in water.
(10) 'Administrator' means the Administrator of the
United States Environmental Protection Agency.
(11) "Federal act" means the Safe Drinking Water Act,
Pub. L. No. 93-523.
(12) "Primary drinking water regulation" means a rule
which:
(a) Applies to public water system:.
(b) Specifies contaminants which, in the judgment
of the department, after consultation with the Depart-
ment of Health and Rehabilitative Services, may have an
adverse effect on the health of the public;
(c) Specifies for each such contaminant either:
1. A maximum contaminant level if, in the judgment
of the department, it is economically and technologically
feasible to ascertain the level of such contaminant in
water in public water systems; or
2. Each treatment technique known to the depart-
ment which leads to a reduction in the level of the con-
taminant sufficient to satisfy the requirements of s.
403.853 if, in the judgment of the department, it is not
economically or technologically feasible to ascertain the
level of such contaminant; and
(d) Contains criteria and procedures to assure a
supply of drinking water which dependably complies
with such maximum contaminant levels, including qual-
ity control and testing procedures to assure compliance
with such levels and to ensure proper operation and
maintenance of the system, and which contains require-
ments as to:
1. The minimum quality of water which may be
taken into the system; and
2. Siting for new facilities for public water systems.
(13) "Secondary drinking water regulation" means a
rule which:
(a) Applies to public water systems; and
(b) Specifies the maximum contaminant levels
which, in the judgment of the department after public
hearings, are requisite to protect the public welfare.
Such regulation may apply to any contaminant in drink-
ing water:
1. Which may adversely affect the odor or appear-
ance of such water and consequently may cause a sub-
stantial number of the persons served by the public
water system providing such water to discontinue its
use; or
2. Which may otherwise adversely affect the public
welfare.
Such regulations may vary according to geographic and
other circumstances.
(14) "National primary drinking water regulations"
means primary drinking water regulations promulgated
by the administrator pursuant to the federal act.
(15) "National secondary drinking water regulations"
means secondary drinking water regulations promul-
gated by the administrator pursuant to the federal act.
(16) "Sanitary survey" means an onsite review of the
water source, facilities, equipment, operation, and main-
tenance of a public water system for the purpose of eval-
uating the adequacy of such source, facilities, equip-
ment, operation, and maintenance for producing and
distributing safe drinking water.
(17) "Nontransient noncommunity water system"
means a public water system that is not a community
water system and that regularly serves at least 25 of the
same persons over 6 months per year.
HUtory.-j. 3. cn. 77-337; $. 1. en. 82-80: ». 10. cn. 89-324. ». 38. cn. 91-305.
403.853 Drinking water standards.—
(1) The department shall adopt and enforce:
(a)1. State primary drinking water regulations that
shall be no less stringent at any given time than the com-
plete interim or revised national primary drinking water
regulations in effect at such time; and
2. State secondary drinking water regulations pat-
terned after the national secondary drinking water regu-
lations.
(b) Primary and secondary drinking water regula-
tions for noncommunity water systems, which shall be
no more stringent than the corresponding national pri-
mary or secondary drinking water regulations in effect at
such time, except that nontransient, noncommunity sys-
tems shall monitor and comply with additional primary
drinking water regulations as determined by the depart-
ment.
(2) Subject to the exceptions authorized pursuant to
s. 403.854, state primary drinking water regulations
apply to each public water system in the state, except
that such regulations do not apply to any public water
system which meets all of the following criteria; namely,
that the system:
(a) Consists of distribution and storage facilities only
and does not have any collection or treatment facilities;
(b) Obtains all of its water from, but is not owned or
operated by, a public water system to which such regu-
lations apply;
(c) Does not sell water to any person; and
(d) Is not a carrier which conveys passengers in
interstate commerce.
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
(3) The department shall adopt and implement ade-
quate rules specifying procedures for the enforcement
of st2te primary and secondary drinking water regula-
tions, including monitoring and inspection procedures,
that comply with regulations established by the adminis-
trator pursuant to the federal act.
(4) The department shall keep such records and
make such reports, with respect to its activities under
subsections (1) and (3), as may be required by regula-
tions established by the administrator pursuant to the
federal act. Such records and reports shall be available
for public inspection.
(5) No state primary drinking water regulation may
reauire the addition of any substance for preventive
health care purposes unrelated to the contamination of
drinking water.
(6) Upon the request of the owner or operator of a
noncommunity water system serving businesses, other
than restaurants or other public food service establish-
ments, and using ground water as a source of supply,
the department, or a local county health unit designated
by the department, shall perform a sanitary survey of the
facility. Upon receipt of satisfactory survey results
according to department criteria, the department shall
reduce the requirements of such owner or operator from
monitoring and reporting on a quarterly basis to perform-
ing these functions on an annual basis. Any revised
monitoring and reporting schedule approved by the
department under this subsection shall apply until such
time as a violation of applicable state or federal primary
drinking water standards is determined by the system
owner or operator, by the department, or by an agency
designated by the department, after a random or routine
sanitary survey. Certified operators are not required for
noncommunity water systems of the type and size cov-
ered by this subsection. Any reports required of such
6ystem shall be limited to the minimum as required by
federal law. When not contrary to the provisions of fed-
eral law, the department may, upon request and by rule,
waive additional provisions of state drinking water regu-
lations for such systems.
(7) Unless otherwise required by federal act, the
department may require testing of public water supply
systems only for those contaminants for which maxi-
mum contaminant levels have been set by the adminis-
trator or the department or for which the United States
Environmental Protection Agency or the department has
established a correlation between pollutant concentra-
tion and human health effects.
History.—• 4. ctv 77-337: il.cft. 79-358. a. 45. ch. 84-338. >. *5. en. 66-196;
• 11. en 89-324.
403.8535 Citation of rule.—In addition to any other
provisions within this part or any rules promulgated here-
under, the permitting agency shall, when requesting
information for a permit application pursuant to this part
or such rules promulgated hereunder, cite a specific
rule. If a request for information cannot be accompanied
by a rule citation, failure to provide such information can-
not be grounds to deny a permit.
Hlttoffy.—t. 10. eft. 79-161.
403.854 Variances, exemptions, and waivers.—
(1) The department may authorize variances or
exemptions from the regulations issued pursuant to s.
403.853 under conditions and in such manner as it
deems necessary and desirable, provided that such
variances or exemptions are authorized under such con-
ditions and in such manner as are no less stringent than
the conditions under which and the manner in which
variances and exemptions may be granted under the
federal act.
(2)(a) The department shall exempt public water
systems from any requirements respecting a maximum
contaminant level or any treatment technique require-
ment, or both, when:
1. Due to compelling factors (which may include
economic factors), the public water system is unable to
comply with such contaminant level or treatment tech-
nique requirement:
2. The public water system was in operation on the
effective date of such contaminant level or treatment
technique requirement: and
3. The granting of the exemption will not result in an
unreasonable risk to health.
(b) Proposed additions to existing treatment plants
not under contract for construction on July 1, 1977, shall
not be automatically exempt.
(3)(a) When the department receives an application
for exemption, it shall act upon such application within
a time period under s. 1416(g) of Pub. L. No. 93-523 or
the Florida Administrative Procedure Act, whichever is
earlier.
(b) The department shall prescribe a compliance
schedule for the exempted system and shall notify the
Environmental Protection Agency Administrator person-
ally by certified mail pursuant to Pub. L. No. 93-523, s.
1416(b) and (c).
(4)(a) The department shall, except upon a showing
of good cause, waive on a case-by-case basis any chlo-
rination requirement applicable to noncommunity water
systems upon an affirmative showing by the supplier of
water that no hazard to health will result. This showing
shall be based upon the following:
1. The completion of a satisfactory sanitary survey;
2. The history of the quality of water provided by the
system and monthly monitoring tests for bacteriological
contamination;
3. Evaluation of the well and the site on which it is
located, including geology, depth of well, casing, grout-
ing, and other relevant factors which have an impact on
the quality of water supplied: and
4. The number of connections and size of the distri-
bution system.
(b) The department may as a condition of waiver
require a monitoring program of sufficient frequency to
assure that safe drinking water standards are being met.
(5) The department shall, except upon a showing of
good cause, waive on a case-by-case basis any
requirement for a certified operator for a nontransient
noncommunity or noncommunity water system having a
design flow of less than 10,000 gallons per day upon an
affirmative showing by the supplier of water that the sys-
tem can be properly maintained without a certified oper-
ator. The department shall consider:
(a) The results of a sanitary survey if deemed neces-
sary;
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(£>} The operation and maintenance records for the
year preceding an application for waiver;
(c) The adequacy of monitoring procedures for max-
imum contaminant levels included in primary drinking
water regulations;
(d) The feasibility of the supplier of water becoming
a certified operator; and
(e) Any threat to public health that could result from
nonattendance of the system by a certified operator.
(6) A waiver shall be granted for 3 years and shall be
renewable upon application to the department pursuant
to subsection (4) or subsection (5).
(7) The department may revoke any waiver to pro-
tect the public health, provided the department finds, on
the basis of technical evidence, that revocation is neces-
sary to achieve compliance with state quality standards
for safe drinking water or that the supplier jf water fails
to comply with any conditions of the waiver. The depart-
ment may proceed under s. 403.855 or s. 403.850.
(8) Neither the department nor any of its employees
shall be held liable for money damages for any injury,
sickness, or death sustained by any person as a result
of drinking water from any noncommunity water system
granted a waiver under subsection (4) or subsection (5).
Mliiory.—9. 5. cn. 77-337; 9. i.ch. 60-«17. 9. 70. cn. 90-331: t. 39. eft. 91-305.
403.855 Imminent hazards.—In coordination with
the Department of Health and Rehabilitative Services,
the department, upon receipt of information that a con-
taminant which is present in, or is likely to enter, public
or private water supplies may present an imminent and
substantial danger to the public health, may take such
actions as it may deem necessary in or^ar to protect the
public health. Department actions shall include, but are
not limited to;
(1) Adopting emergency rules pursuant to s.
120.54(9).
(2) Issuing such corrective orders as may be neces-
sary to protect the health of persons who are or may be
users of such supplies, including travelers. An order
issued by the department under this section shall
become effective upon service of such order on the
alleged violator, notwithstanding the provisions of s.
403.860(3).
(3) Establishing a program designed to prevent con-
tamination or to minimize the danger of contamination to
potable water supplies.
(4) Contracting for clinical tests on samples of the
affected population if the department determines there
is a real and immediate danger to the public health.
(5) Commencing a civil action for appropriate relief,
including a restraining order or permanent or temporary
injunction.
Hlitory.—9. 6. cn. 77-337; 9. 1$3. cn. 79-»00; 9. 5. cn. a3-3l0.
403.856 Plan for emergency provision of water.—
The department shall adopt an adequate plan, after con-
sultation with the Department of Health and Rehabilita-
tive Services, for the provision of safe drinking water
under emergency circumstances. When, in the judg-
ment of the department, emergency circumstances
exist in the state with respect to a need for safe drinking
water, it may issue such rule or order as it may deem
necessary in order to provide such water where it would
not otherwise be available.
Mlttory.—s. 7. ch. 77-337.
403.857 Notification of users and regulatory agen-
cies.—Whenever a public water supply system:
(1) Is not in compliance with the state primary and
secondary drinking water regulations;
(2) Fails to perform monitoring required by rules or
regulations adopted by the department;
(3) Is subject to a variance granted for an inability to
meet a maximum contaminant level requirement;
(4) Is subject to an exemption; or
(5) Fails to comply with the requirements prescribed
by a variance or exemption,
the owner or operator of the system shall, as soon as
practicable, notify the local public health departments,
the department, and the communications media serving
the area served by the system of that fact and of the
extent, nature, and possible health effects of such fact.
Such notice shall also be given by the owner or operator
of the system by publication in a newspaper of general
circulation, as determined by the department, within the
area served by such water system at least once every
3 months as long as theviolation, variance, or exemption
continues. Such notice shall also be given with the water
bills of the system as long as the violation, variance, or
exemption continues, as follows: if the water bills of a
public water system are issued at least as often as once
every 3 months, such notice shall be included in at least
one water bill of the system for each customer every 3
months; if the system issues its water bills less often
than once every 3 months, such notice shall be included
in each of the water bills issued by the system for each
customer. However, the provisions of this section not-
withstanding, the department may prescribe by rule rea-
sonable alternative notice requirements.
Hlttory.—•%. 8, ch. 77-337.
403.858 Inspections.—Any duly authorized repre-
sentative of the department or of the Department of
Health and Rehabilitative Services may enter, take water
samples from, and inspect any property, premises, or
place, except a building which is used exclusively for a
private residence, on or al wliich a public water system
is located or is being constructed or installed, at any rea-
sonable time, for the purpose of ascertaining the state
of compliance with the law or with rules or orders of the
department.
Hlitory.—i. 9. ch. 77-337.
403.859 Prohibited acts.—The following acts and
the causing thereof are prohibited and are violations of
this act:
(1) Failure by a supplier of water to comply with the
requirements of s. 403.857 or dissemination by such
supplier of any false or misleading information with
respect to notices required pursuant to s. 403.857 or
with respect to remedial actions being undertaken to
achieve compliance with state primary and secondary
drinking water regulations.
(2) Failure by a supplier of water to comply with reg-
ulations adopted pursuant to s. 403.853, with any rule
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
aaooied 5v the department pursuant to this act. or with
ccncitior.s for variances or exemptions autnorized under
s. 403.854.
(3) Failure by any person to comply with any order
issued by the depanment pursuant to this act.
(4) Failure by a supplier of water to allow any duly
authorized representative of the depailment or of the
Department of Health and Rehabilitative Services to
conduct inspections pursuant to s. 403.858.
(5) Submission by any person of any false statement
or representation in any application, record, report, plan,
or other document filed, or required to be filed by this
act or rules adopted by the department pursuant to its
lawful authority.
(6) Failure by a supplier of water to comply with any
approved plans and specifications or condition to the
approval of plans and specifications issued by the
department pursuant to this act.
(7) The artificial recharge by the direct pumping of
treated or untreated waste into any geologic formation
of the Floridan Aquifer or the Biscayne Aquifer contain-
ing total dissolved solids of 500 milligrams per liter or
less, except such injection from wastewater reuse facili-
ties presently being considered and conceptually
approved by the department before June 1,1983. on the
following conditions:
(a) There will be a minimum 2-year operational test
period during which no other such project will be permit-
ted.
(b) During the test period, no effluent will be injected
into the Floridan Aquifer or the Biscayne Aquifer.
(c) The effluent quality must meet the water quality
standards established by the Department of Environ-
mental Regulation as part of the permit to construct the
treatment facility.
(d) By January 1, 1984, the Department of Environ-
mental Regulation shall promulgate by rule effluent
standards for any project proposing wastewater reuse
by injection into the Floridan Aquifer or Biscayne Aqui-
fer.
(e) At the end of the 2-year operational test, there
will be a peer review of data. The review shall be broadly
distributed to competent, impartial, and experienced
national authorities such as the United States Environ-
mental Protection Agency and the National Academy of
Sciences. The decision by the department to permit
injection shall take into consideration the reports of the
review.
(f) In the event a facility does not receive an opera-
tion permit which assures compliance with department
rules promulgated pursuant to this subsection, the
treated or untreated waste shall be returned to the sew-
age treatment plant from which the wastewater was
diverted during the 2-year period or another legally
acceptable alternative.
The provisions of this subsection do not apply to treated
or untreated waste currently discharging into the Flori-
dan Aquifer or Biscayne Aquifer on June 22, 1983.
Mlftanr.—s. 10. eft. 77-337; i. 164. eft. 79-400: ». 1. eft. 83-161.
403.860 Penalties and remedies.—
(1) A fine, not to exceed $5,000 for each day in
which a violation occurs, may be imposed by a court of
competent jurisdiction on any person who violates s.
403.859 (1), (2). (4), (5). or (6).
(2) A fine, not to exceed $5,000 for each day in
which such violation occurs or failure to comply contin-
ues, may be imposed by a court of competent jurisdic-
tion upon any person who violates, or fails or refuses to
comply with, any order issued by the department pursu-
ant to this act.
(3) The department may initiate an administrative
proceeding to establish liability and require corrective
action. Such proceeding shall be instituted by the
department's serving a written notice of violation upon
the alleged violator by certified mail. The notice shall
specify the provision of law or rule of the department
alleged to have been violated and the facts alleged to
constitute a violation thereof. An order for corrective
action may be included with the notice. However, no
order shall become effective until after service and an
administrative hearing, if requested within 20 days after
service. Failure to request an administrative hearing
within this time period shall constitute a waiver thereof.
A department order, entered after a hearing pursuant to
chapter 120 or a waiver thereof, shall be final and consti-
tute a final adjudication of the matters alleged. Such
order may require, in addition to corrective action, that
the violator pay the state for its reasonable costs and
expenses incurred in investigating the violation and
prosecuting the administrative proceeding.
(4) The department may institute a civil action in any
court of appropriate jurisdiction for injunctive relief to
prevent violation of any order, rule, or regulation issued
pursuant to this act, in addition to any other remedies
provided under this section.
(5) In addition to any judicial or administrative rem-
edy authorized by this part, the department or a county
public health unit that has received approval by the
department pursuant to s. 403.862(1)(c) may assess a
noncompliance fee for failure of any supplier of water of
a public water system to comply with department
requirements for the reporting, in the manner and time
provided by department rule, of test results for microbio-
logical, inorganic, or organic contaminants; or turbidity,
radionucleides, or secondary standards.
(a) For the first and second violations of the microbi-
ological reporting requirements, and for the first violation
of other reporting requirements, the fee shall not be
assessed until the department has given the supplier at
least 30 days to comply with the reporting requirement.
The time shall not begin until the department has given
the supplier written notice of the facts alleged to consti-
tute the reporting violation, the specific provision of law,
rule, or order alleged to have been violated by the owner
or operator, the corrective action needed to bring the
facility into compliance, and the potential penalties that
may be imposed as a result of the supplier's failure to
comply with the notioe. For subsequent violations of the
microbiological reporting requirements, the department
does not have to provide 30-day written notice of the
violations prior to assessing a noncompliance fee. pro-
vided, however, that if any additional reporting violations
occur prior to the expiration of either 30-day notice
issued by the department, the department must provide
114
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
the supplier with a 30-day written notice to correct
those violations as well. Upon expiration of 36 months,
the department shall reinstate the 30-day notice
requirements provided in this subsection prior to
assessing a noncompliance fee.
(b) At the time of assessment of a noncompliance
fee. the department shall give the supplier written notice
setting forth the amount assessed, the specific provi-
sion of law, rule, or order alleged to be violated, the facts
alleged to constitute the violation, the corrective action
needed to bring the party into compliance, and the
rights available under chapter 120 to challenge the
assessment. The assessment shall be final and effective
unless an administrative proceeding is requested within
20 days after receipt of the written notice, and shall be
enforceable pursuant to s. 120.69.
(c) Before assessing a noncompliar ce fee, the
department shall adopt rules to implement the provi-
sions of this subsection. The rules shall establish spe-
cific procedures and assessment amounts for noncom-
pliance fees authorized by paragraph (a). Noncompli-
ance fees shall be set on a sliding scale based upon the
type of violation, the degree of noncompliance, and the
potential for harm. Such rules shall also authorize the
application of adjustment factors subsequent to initial
assessment to increase or decrease the total amount
assessed, such as the good faith efforts or the lack of
good faith efforts of the supplier to comply with the
reporting requirements, the lack of or degree of willful-
ness or negligence on the pari of the supplier, the eco-
nomic benefits associated with the supplier's failure to
comply with the reporting violation, the supplier's previ-
ous history of reporting violations, ar i the supplier's
ability to pay the noncompliance fee.
(d) For microbiological reporting requirements, no
noncompliance fee shall exceed $250, and total non-
compliance fees assessed shall not exceed $1,000 per
assessment for all reporting violations attributable to a
specific facility during any one month.
(e) For violations of reporting requirements other
than microbiological, the fee shall be no greater than $50
per day for each day of violation, and the total amount
assessed shall not exceed $2,000.
(f) The department's assessment of a noncompli-
ance fee shall be in lieu of any civil action which may be
instituted by the department in a court of competent
jurisdiction to impose and recover civil penalties for any
violation that resulted in the fee assessment, unless the
department initiates a civil action for nonpayment of a
fee properly assessed pursuant to this subsection.
(g) No noncompliance fee may be assessed unless
the department has, within 90 days of the reporting vio-
lation, provided the supplier written notice of the viola-
tion.
(6) Fees collected pursuant to this section shall be
deposited in the Water Quality Assurance Trust Fund or
the appropriate Public Health Unit Trust Fund, in accord-
ance with's. 381.0063, to be used to carry out the provi-
sions of this part. The department may use a portion of
the fund to contract for services to help collect noncom-
pliance fees assessed pursuant to this section.
History.—s. 11, ch. 77-337; t. 71. ch. 90-331.
'Note.—Substituted tor • reference to ». 361.2615 to conform to the transfer of thai
taction by ». 2<. ch. 91-297
403.861 Department; powers and duties.—The
department shall have the power and the duty to carry
out the provisions and purposes of this act and, for this
purpose, to:
(1) Administer and enforce the provisions of this act
and all rules and orders adopted, issued, or made effec-
tive hereunder.
(2) Enter into agreements, contracts, or cooperative
arrangements, under such terms and conditions as it
deems appropriate, with other local, state, federal, or
interstate agencies; municipalities; political subdivi-
sions: educational institutions; or other organizations or
persons.
(3) Receive financial and technical assistance from
the Federal Government and other public or private
agencies.
(4) Participate in related programs conducted by
federal agencies, other states, interstate agencies, or
other public or private agencies or organizations.
(5) Establish adequate fiscal controls and account-
ing procedures to assure proper disbursement of, and
accounting for, funds appropriated or otherwise pro-
vided for the purpose of carrying out provisions of this
act.
(6) Delegate those responsibilities and duties
deemed appropriate for the purpose of administering
requirements of this act.
(7) Issue permits for constructing or operating a
public water supply system, based upon the size, type
of treatment, or population served by the system.
(8) Require a fee in an amount sufficient to cover the
costs of viewing and acting upon any application for the
construction and operation of a public water supply sys-
tem and the costs of surveillance and other field ser-
vices associated with any permit issued, but the amount
in no case shall exceed $7,500. The fee schedule shall
be adopted by rule based on a sliding scale relating to
the size, type of treatment, or population served by the
system that is proposed by the applicant.
(9) Adopt, modify, and repeal such rules as are nec-
essary or appropriate to carry out its functions under this
act.
(10) Require department or county health depart-
ment review and approval of comolete plans and specifi-
cations prior to the installation, operation, alteration, or
extension of any public water system.
(11) Establish and maintain laboratories for radiologi-
cal, microbiological, and chemical analyses of water
samples from public water systems, if the department
determines that an additional laboratory capability
beyond that provided by the Department of Health and
Rehabilitative Services is necessary.
(12) Plan, develop, and coordinate program activities
for the management and implementation of the state pri-
mary and secondary drinking water regulations, includ-
ing taking sanitary surveys.
(13) Collect and disseminate information and conduct
educational and training programs relating to drinking
water and public water systems.
(14) Conduct data management activities to maintain
essential records needed for administration of the public
water system supervision program and for submission
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
to the administrator, including the maintenance of an
inventory for all public water systems.
(15) Establish and collect fees for conducting state
laboratory analyses as may be necessary, to be col-
lected and used by either the department or the Depart-
ment of Health and Rehabilitative Services in conducting
its public water supply laboratory functions.
(16) Require suppliers of water to collect samples of
water as required by state primary drinking water regula-
tions, to submit such samples to an appropriate labora-
tory for analysis, and to keep sampling records as
required under the federal act and make such records
available to the department upon request.
(17) Require suppliers of water to submit periodic
operating reports and testing data which the depart-
ment determines are reasonably necessary to ascertain
the adequacy of water supply systems.
(18) Issue such orders as may be necessary to effec-
tuate the intent and purposes of this act.
(19) Assist state and local agencies in the determina-
tion and investigation of suspected waterborne disease
outbreaks, including diseases associated with chemical
contaminants.
(20) Encourage public involvement and participation
in the planning and implementation of the state public
water system supervisory plans.
MIMory.—». 12. civ 77-337: t. 165. en. 79-400: t. 46. civ 86-186: •. 40. ch.
91-305
403.862 Department of Health and Rehabilitative
Services; public water supply duties and responsibili-
ties; coordinated budget requests with Department of
Environmental Regulation.—
(1) Recognizing that supervision and control of
county public health units of the Department of Health
and Rehabilitative Services is retained by the secretary
of that agency, and that public health aspects of the
state public water supply program require joint participa-
tion in the program by the Department of Health and
Rehabilitative Services and its units and the department,
the Department of Health and Rehabilitative Services
shall:
(a) Establish and maintain laboratories for the con-
ducting of radiological, microbiological, and chemical
analyses of water samples from public water systems,
which are submitted to such laboratories for analysis.
Copies of the reports of such analyses and quarterly
summary reports shall be submitted to the appropriate
department district or subdistrict office.
(b) Require each county health department to:
1. Collect such water samples for analysis as may
be required by the terms of this act, from public water
systems within its jurisdiction. The duty to collect such
samples may be shared with the appropriate depart-
ment district or subdistrict office and shall be coordi-
nated by field personnel involved.
2. Submit the collected water samples to the appro-
priate laboratory for analysis.
3. Maintain reports of analyses for its own records.
4. Conduct complaint investigation of public water
systems to determine compliance with federal, state,
and local standards and permit compliance.
5. Notify the appropriate department district or sub-
district office of potential violations of federal, state, and
local standards and permit conditions by public water
systems and assist the department in enforcement
actions with respect to such violations to the maximum
extent practicable.
6. Review and evaluate laboratory analyses of
water samples from private water systems.
(c) Require those county public health units desig-
nated by the Department of Health and Rehabilitative
Services and approved by the department as having
qualified sanitary engineering staffs and available legal
resources, in addition to the duties prescribed in para-
graph (1)(b). to:
1. Review, evaluate, and approve or disaDprove
each application for the construction, modification, or
expansion of a public water system to aetermine compli-
ance with federal, state, and locai requirements. A copy
of the completed permit application and a report of the
final action taken by the county public health unit shall
be forwarded to the appropriate department district
office.
2. Review, evaluate, and approve or disapprove
applications for the expansion of distribution systems.
Written notification of action taken on such applications
shall be forwarded to the appropriate department dis-
trict or subdistrict office.
3. Maintain inventory, operational, and bacteriologi-
cal records and carry out monitoring, surveillance, and
sanitary surveys of public water systems to ensure com-
pliance with federal, state, and local regulations.
4. Participate in educational and training programs
relating to drinking water and public water systems.
5. Enforce the provisions of this part and rules
adopted under this pan.
(d) Require those county health departments desig-
nated by the Department of Health and Rehabilitative
Sen/ices as having the capability of performing bacterio-
logical analyses, in addition to the duties prescribed in
paragraph (1)(b), to:
1. Perform bacteriological analyses of water sam-
ples submitted for analysis.
2. Submit copies of the reports of such analyses to
the appropriate department district or subdistrict office.
(e) Make available to the central and branch labora-
tories funds sufficient, to the maximum extent possible,
to carry out the public water supply functions and
responsibilities required of such laboratories as pro-
vided in this section.
(f) Have general supervision and control over ail pri-
vate water systems and all public water systems not oth-
erwise covered or included in this part. This shall include
the authority to adopt and enforce rules to protect the
health, safety, or welfare of persons being served by all
private water systems and all public water systems not
otherwise covered by this part.
(g) Assist state and local agencies in the determina-
tion and investigation of suspected waterborne disease
outbreaks, including diseases associated with chemical
contaminants.
(h) Upon request, consul; with and advise any
county or municipal authority as to water supply activi-
ties.
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(2) Funds appropriated to support activities of
county health departments of the Department of Health
and Rehabilitative Services pursuant to this act shall be
deposited to the County Health Department Trust Fund
and used exclusively for the purposes of this act.
(3) The Department of Health and Rehabilitative Ser-
vices and the department shall coordinate their respec-
tive budget requests for the fiscal year 1978-1979 and
for subsequent fiscal years to ensure that sufficient
funding is provided to the Department of Health and
Rehabilitative Services in order that it may carry out its
public water supply functions and responsibilities as
provided in this section. In the event the Department of
Health and Rehabilitative Services lacks sufficient funds
in any fiscal year to the extent that it is unable ade-
quately to carry out its public water supply duties, an
interagency agreement may be entered ; ;io between
the two departments in order lo remeay administra-
tively, either through the transfer of funcs or c; services,
the lack of sufficient public water supply funds within the
Department of Health and Rehabilitative Services.
(4) If the department determines that a county
health department or other unit of the Department of
Health and Rehabilitative Services is not performing its
public water supply responsibilities satisfactorily, the
secretary of the department shall certify such determi-
nation in writing to the Secretary of Health and Rehabili-
tative Services. The Secretary of Health and Rehabilita-
tive Services shall evaluate the determination of the
department and shall inform the secretary of the depart-
ment of his evaluation. Upon concurrence, the Secretary
of Health and Rehabilitative Services shall take immedi-
ate corrective action.
(5) Nothing in this section shall serve to negate the
powers, duties, and responsibilities of the Secretary of
Health and Rehabilitative Services relating to the protec-
tion of the public from the spread of communicable dis-
ease, epidemics, and plagues.
(6) After January 2, 1991, no county public health
unit may be designated and approved unless it can
carry out all functions of the drinking water program.
Each year, the department, in conjunction with the
Department of Health and Rehabilitative Services, shall
review approved county public health units to determine
continued qualification for approved status. To receive
and maintain approved status, a county public health
unit shall meet the following criteria and other reason-
able and necessary requirements established by the
Department of Environmental Regulation for its district
offices:
(a) The staff shall be under the direction of a quali-
fied individual who is a registered professional engineer
in Florida pursuant to chapter 471.
(b) The county public health unit shall have sufficient
legal resources to carry out the requirements of this
part.
(7) Fees received from suppliers of water pursuant
to ss. 403.860(5) and 403.861(8) in counties where
county public health units have been approved by the
department pursuant to s. 403.862(1 )(c) shall be depos-
ited in the appropriate Public Health Unit Trust Fund to
be used for the purposes stated in s. 403.862(1 )(c).
History.—s. 13. cn. 77-337: s. 156. eft 79-400. t. 12. cH. B9-324: s. 73. cn.
90-331: i. 41. cn. 91-30S"
403.663 State public water supply laboratory certi-
fication program.—
(1) Within 120 days of the effective date of this act.
the department and the Depariment of Health and
Rehabilitative Services shall iomiiy develop a slate pro-
gram. and the Department of Health and Rehabilitative
Services shall adopt rules for the evaluation and certifi-
cation of all laboratories in the state, other than the prin-
cipal state laboratory, which perform or make application
to perform analyses pursuant to the Florida Safe Drink-
ing Water Act. Such joint development shall be funded
in part through the use of a portion of the State Public
Water Systems Supervision Program grants received by
the department from the Federal Government in order
to implement the federal act.
(2) The Department of Health and Rehabilitative Ser-
vices shall have the responsibility for the operation and
implementation of the state laboratory certification pro-
gram, except that, upon completion of the evaluation
and review of the laboratory certification application, the
evaluation shall be forwarded, along with recommenda-
tions, to the department for review and comment, prior
to final approval or disapproval.
(3) Any federal grant funds received by the depart-
ment for the operation and implementation of the state
laboratory certification program shall be transferred to
the Department of Health and Rehabilitative Services by
interagency agreement between the two departments.
Such agreement shall require the Department of Health
and Rehabilitative Services to provide the department
with a quarterly accounting of the funds transferred.
(4) Within 60 days of the effective date of the rules
adopted pursuant to this section, no laboratory in the
state, except the principal state laboratory, shall perform
analyses pursuant to the Florida Safe Drinking Water Act
without having applied for and received certification
under the state certification program to perform such
analyses.
(5) For the purposes of this section, the term "princi-
pal state laboratory" means the central laboratory of the
Department of Health and Rehabilitative Services.
(6) For the purposes of this section, the term "certifi-
cation" means regulatory recognition given to a labora-
tory that performs analyses pursuant to the Florida Safe
Drinking Water Act, that it meets minimum analytical
performance standards.
History.—s. 14. cn 77-337: s. 167. ch. 79-400.
403.8635 State drinking water sample laboratory
certification program.—
(1) In addition to certifying laboratories pursuant to
s. 403.863, the Department of Health and Rehabilitative
Services is authorized to establish a periodic certifica-
tion and approval program for laboratories that perform
analyses of drinking water samples, which program will
assure the acceptable quality, reliability, and validity of
all testing results.
(2) The Department of Health and Rehabilitative Ser-
vices has the responsibility for the operation and imple-
mentation of laboratory certification pursuant to this sec-
tion, except that, upon completion of the evaluation and
review of an application for laboratory certification, the
evaluation shall be forwarded, along with r^commenda-
117
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
ticns. ;o the Department o! Environmental Regulation for
review and comment prior to final approval or disap-
proval.
(3) The Department of Health and Rehabilitative Ser-
vices is authorized to charge and collect fees for the
evaluation and certification of laboratories pursuant to
this part. The fee schedule shall be based on the num-
ber of analytical functions for which certification is
sought. Such fees shall be sufficient to meet the costs
incurred by the Department of Health and Rehabilitative
Services in the administration and operation of this pro-
gram. All fees shall be deposited in a trust fund adminis-
tered by the Department of Health and Rehabilitative
Services to be used for the sole purpose of this section.
Hlitory.—j <9. cn 84-338.
403.864 Public water supply accounting program.
(1) It is the intent of the Legislature to require a
yearly accounting of funds, overhead, personnel, and
property used by the department and the Department
of Health and Rehabilitative Services and its units,
including each of the county health departments, in con-
ducting their respective responsibilities for the state
public water supply program. Such accounting shall be
presented to the Governor, the President of the Senate,
and the Speaker of the House of Representatives by the
department and the Department of Health and Rehabili-
tative Sen/ices no later than February 1 of each year. The
first accounting shall be due by February 1, 1979, and
shall cover the state fiscal year 1978-1979.
(2) In furtherance of this intent, the Department of
Health and Rehabilitative Services, the department, and
the Auditor General shall jointly develop an accounting
program for use by the department and the Department
of Health and Rehabilitative Sen/ices and its units,
including the county health departments, to determine
the funds, overhead, personnel, and property used by
each of the departments in conducting its respective
public water supply functions and responsibilities for
each fiscal year. The accounting program shall provide
information sufficient to satisfy state auditing and federal
grant and aid reporting requirements and shall include
provisions requiring the Department of Health and Reha-
bilitative Services to:
(a) Segregate, from an accounting standpoint,
funds distributed to county health departments for pub-
lic water supply functions from other county health
department trust funds.
(b) Segregate, from an accounting standpoint,
funds distributed to the central and branch laboratories
of the Department of Health and Rehabilitative Services
for public water supply functions from other laboratory
funds.
(c) Require each county health department, the cen-
tral and each branch laboratory of the Department of
Health and Rehabilitative Services, and any other entity
of the Department of Health and Rehabilitative Services
invoived in and carrying out public water supply func-
tions to account to the Department of Health and Reha-
bilitative Services on a semiannual basis for the funds
received, from whatever source, and used for public
water supply functions.
(d) Reauire each county health department, the cen-
tral and each branch laboratory of the Department of
Health and Renabilitative Services, and any ether entity
of the Department of Health and Rehabilitaiive Services
involved in carrying out public water supply functions
either wholly or partially with funds, either federal or
state, received from the department through an intera-
gency agreement or other means to account to the
department on a semiannual basis for such funds
received and used for public water supply functions.
HUtOfy.—s. 15. cn. 77-337: s. 100, ch. 79->$4
PART VII
MISCELLANEOUS
403.90 Judicial review relating lo permits and licenses.
403.90 Judicial review relating to permits and
licenses.—
(1) As used in this section, unless the context other-
wise requires:
(a) "Agency" means any official, officer, commission,
authority, council, committee, department, division,
bureau, board, section, or other unit or entity of state
government.
(b) "Permit" means any permit or license required by
this chapter.
(2) Any person substantially affected by a final
action of any agency with respect to a permit may seek
review within 90 days of the rendering of such decision
and request monetary damages and other relief in the
circuit court in the judicial circuit in which the affected
property is located; however, circuit court review shall
be confined solely to determining whether final agency
action is an unreasonable exercise of the state's police
power constituting a taking without just compensation.
Review of final agency action for the purpose of deter-
mining whether the action is in accordance with existing
statutes or rules and based on competent substantial
evidence shall proceed in accordance with chapter 120.
(3) If the court determines the decision reviewed is
an unreasonable exercise of the state's police power
constituting a taking without just compensation, the
court shall remand the matter to the agency which shall,
within a reasonable time:
(a) Agree to issue the permit:
(b) Agree to pay appropriate monetary damages;
however, in determining the amount of compensation to
be paid, consideration shall be given by the court to any
enhancement to the value of the land attributable to gov-
ernmental action; or
(c) Agree to modify its decision to avoid an unrea-
sonable exercise of police power.
(4) The agency shall submit a statement of its
agreed-upon action to the court in the form of a pro-
posed order. If the action is a reasonable exercise of
police power, the court shall enter its final order approv-
ing the proposed order. If the agency fails to submit a
proposed order within a reasonable time not to exceed
90 days which specifies an action that is a reasonable
exercise of police power, the court may order the
agency to perform any of the alternatives specified in
subsection (3).
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
(5) The court shall award reasonable attorney's fees
and court costs to the agency or substantially affected
person, whichever prevails
(6) The provisions of this section are cumulative and
shall no; be deemed to abrogate any other remedies
provided by law.
Minory.—ss I. 2. 3. 4. i. 6. cn. 78-85
PART VIII
PERMITTING OF ACTIVITIES
IN WETLANDS
^03.91 Short title.
403.911 Definitions of terms used in ss.
403.91-403.929.
403.912 Powers and duties of departme it in .permit-
ting of activities in wetlands.
403.913 Determination of jurisdiction over surface
waters; criteria: when permits required.
403.914 Jurisdictional declaratory statements.
403.916 Local participation in permitting process.
403.918 Criteria for granting or denying permits.
403.919 Equitable distribution.
403.92 Notice of intent to deny a permit or notice of
denial of a permit; contents.
403.921 Permits; duration; fees.
403.922 Applications for activities on state sovereignty
lands or other state lands.
403.923 Effect of issuance of permit on need to obtain
other permits under this chapter.
403.924 Enforcement of ss. 403.91-403.929.
403.925 Review of departmental action.
403.927 Use of water in farming and forestry activities.
403.929 Wetlands monitoring system.
403.93 Definitions of terms used in ss.
403.93-403.938.
403.931 Alteration of mangroves; permit procedure.
403.932 Exceptions and authorized alterations of man-
groves.
403.933 Alteration of mangroves; criteria.
403.935 Restoration of unlawfully altered mangroves.
403.936 Enforcement of provisions relating to man-
groves.
403.938 Variance relief.
403.91 Short title.—Sections 403.91-403.929 shall
be known and may be cited as the "Warren S. Hender-
son Wetlands Protection Act of 1984."
Mlftory.—4. 1. ct\. 84-79.
403.911 Definitions of terms used in ss. 403.91-
403.929.—As used in ss. 403.91-403.929:
(1) The term "department" means 1he Department of
Environmental Regulation.
(2) The term "dredging" means excavation, by any
means, in waters. It also means the excavation, or cre-
ation, of a water body which is, or is to be, connected
to waters, directly or via an excavated water body or
series of excavated water bodies.
(3) The term "estuary' means a semienclosed, natu-
rally existing coastal body of water which has a free con-
nection with the open sea and within which seawater is
measurably diluted with fresh water derived from river-
ine systems
(4) The term "filling" means the deposition, by any
means, of materials in waters.
(5) The term "lagoon" means a naturally existing
coastal zone Depression which is below mean high
water and which has permanent or ephemeral communi-
cations with the sea, but which is protected from the sea
by some type of naturally existing barrier.
(6) The term "seawall" means a manmade v. all or
encroachment, except riprap, which is made to break
the force of waves and to protect the shore from erosion.
(7) For purposes of dredge and fill permitting activi-
ties by the department, "wetlands" are defined as those
areas within the jurisdiction of the o-jpartment pursuant
to s. 403.817.
Hlttory.—*. 1. cn 84-79, s. 69. cn. 8-4-338
403.912 Powers and duties of department in per-
mitting of activities in wetlands.—
(1) Consistent with the powers, jurisdiction, and
duties listed in s. 403.061, the department is authorized
to adopt rules to carry out the provisions of ss. 403.91-
403.929, including appropriate regulatory provisions
governing activities in waters to their landward extent
pursuant to s. 403.817. Such rules may include stricter
permitting and enforcement provisions within Outstand-
ing Florida Waters, aquatic preserves, areas of critical
state concern, and areas subject to chapter 380
resource management plans adopted by rule by the
Administration Commission, when the plans for an area
include waters that are particularly identified as needing
additional protection, which provisions are not inconsis-
tent with the applicable rules adopted for the manage-
ment of such areas by the department and the Governor
and Cabinet.
(2) The department shall periodically review and
reevaluate its application forms for permits for activities
regulated by ss. 403.91-403.929 to ensure that such
forms efficiently and effectively meet the needs of the
department and of applicants for permits.
Mi«to*y —* i. eft 84-79
403.913 Determination of jurisdiction over surface
waters; criteria; when permits required.—
(1) No person shall dredge or fill in, on, or over sur-
face waters without a permit from the department,
unless exempted by statute or department rule.
(2) The landward extent of waters shall be deter-
mined as provided in s. 403.817, except that the depart-
ment may exert its jurisdiction to the ordinary or mean
high-water line of waters whenever the landward extent,
if determined in accordance with 'Rule 17-4.022, Florida
Administrative Code, occurs waterward of the ordinary
or mean high-water line. The determinations made pur-
suant to this subsection shall be to establish the regula-
tory jurisdiction of the department and are not intended
to be a delineation of the boundaries of lands for pur-
poses of title.
(3) When the department determines its jurisdiction
based on dominant vegetation, the permit applicant or
person requesting the jurisdictional determination, at his
option, may request that the department, in cooperation
with the United States Department of Agriculture Soil
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Ch. 403
ENVIRONMENTAL CONTROL
F.S. 1991
Conservation Service, determine whether hyciric soils at
the site corroborate the finding of jurisdiction based on
vegetation. A request by an applicant lhal a soils
assessment be made pursuant to this section shall toll
the 90-day time period provided in s. 403.0876 to
approve or deny the permit; that time shall begin to run
agam upon receipt by the department of the information
provided by the Soil Conservation Service. When the
soils assessment indicates the presence of hydric soils
in conjunction with dominant vegetation, the depart-
ment shall be presumed to have jurisdiction. When the
soils assessment indicates the absence of hydric soils,
the department shall be presumed not to have jurisdic-
tion.
(4) Within those areas of the state where a water
management district has been delegated stormwater
permitting by the department, no dredge or fill permit is
required lor the construction of, and dredging and filling
in. irrigation or drainage ditches constructed in the
uplands, including those connecting otherwise isolated
areas owned entirely by one person and dominated by
the plant indicator species adopted pursuant to s.
403.817. This exemption only applies to a ditch for which
the point of connection to other waters of the state is no
more ;nan 35 square feet in total cross-sectional area
and wnich normally has a water depth of no more than
3 feet. The total cross-sectional area at the point of con-
nection to other waters of the state shall be maintained
by the landowner so as not to exceed the design limita-
tions of this exemption. This exemption does not autho-
rize dredging in waters of the state other than in ditches
as described in this subsection. All applicable permits
except dredge and fill permits are required for dis-
charges to these ditches or connected areas. This
exemption does not apply to ditches in or connected to
the waters described in s. 403.031 (12)(a) and (b), Out-
standing Florida Waters. Class I waters, or Class II
waters.
(5) For the purposes of dredge and fill permitting,
surface waters do not include intermittent streams or
intermittent tributaries, unless there is a continuation of
jurisdiction as determined pursuant to 'Rule 17-4.022,
Florida Administrative Code. Standard hydrological
methods shall be used to determine which streams con-
stitute intermittent streams and intermittent tributaries.
An intermittent stream or intermittent tributary means a
stream that flows only at certain times of the year, flows
in direct response to rainfall, and is normally an influent
stream except when the groundwater table rises above
the normal wet season level. Those portions of a stream
or tributary which are intermittent and are located
upstream of all nonintermittent portions of the stream or
tributary are not subject to dredge and fill permitting.
(6) The expanded dredge and fill jurisdiction and
permitting criteria granted to the department under ss.
403.91-403.929 do not apply to any development in
which 30 percent or more of the lots in a subdivision
approved for sale as homesites subsequent to January
1, 1970, pursuant to chapter 498 have been sold; to any
residential development for which a development order
pursuant to s. 380.06 has been issued or which is
exempt pursuant to s. 498.025(2)(a)'and (4)(a); or to any
activity for which a dredge and fill permit has been
issued by the department prior to October 1. 1984. A
development or activity which meets any of these condi-
tions shall continue to be regulated pursuant to the
dredge and fill jurisdiction of the department as such
jurisdiction existed prior to January 24, 1984. Dredge
and fill permit applications relating to such develop-
ments and activities which meet the conditions previ-
ously described shall be reviewed by the department
using the permit criteria which existed prior to January
24, 1984, for 12 months after the department adopts a
rule implementing ss. 403.91-403.929. Dredge and fill
permit applications filed 12 months after the department
adopts its rules implementing ss. 403.91-403.929 are
subject to the permit criteria established by this chaDter.
The developer of a development or a permitholder for an
activity which meets any of the conditions previously
described and who asserts that the development or
activity is qualified under this provision shall notify the
department of such assertion within 180 days of the
publication of a notice by the department of the exist-
ence of this provision. The failure to timely notify the
department serves as a waiver of the benefits conferred
by this provision.
(7) As to other developments the lands of which
were approved for sale pursuani to chapter 498 prior to
October 1, 1984, the department shall give special con-
sideration to an application for a dredge and fill permit
when the lands subject to the permit application consti-
tute a part of the contractual obligations of the applicant
incurred pursuant to land sales contracts and when
there has been a continuing, bona fide effort since the
date of recording of the plat to fulfill the plan of develop-
ment set forth in the plat and required to be undertaken
by the terms of such contractual obligations. The depart-
ment must be notified of any development or activity as
to which it is asserted that it is qualified for the special
consideration within 180 days of the publication of a
notice by the department of the existence of this provi-
sion. The failure to timely notify the department serves
as a waiver of the benefits conferred by this provision.
(8) The expanded dredge and fill jurisdiction
granted to the department under ss. 403.91-403.929
does not apply to any sand, limerock, or limestone min-
ing activity which is currently operating in compliance
with department rules or for which the department has
previously determined that it has no jurisdiction in areas
east of the Dade-Broward Levee or which holds a
department permit on October 1, 1984. Such sand,
limerock, or limestone mining activity shall continue to
be regulated pursuant to the dredge and fill jurisdiction
of the department as such jurisdiction existed prior to
January 24, 1984, for a period of 10 years from October
1,1984, provided such activity is continuous and carried
out on land contiguous to mining operations which were
in existence on or before October 1, 1984. Any lands
acquired or leased subsequent to June 1,1984, for such
mining activity are not subject to the provisions of this
subsection. Dredge and fill permit applications related
to such activities shall be reviewed by the department
using the existing permit criteria set forth in Rule 17-4,
Florida Administrative Code, as of January 24, 1984, for
12 months after the department adopts a rule imple-
menting ss. 403.91-403.929, at which time subse-
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
quently filed permit applications will be subject to the
permit criteria of ss. 403.91-403.929. The department
must be notified of any such mining activity as to which
it is asserted that it is qualified under this provision
within 180 days after the publication of a notice by the
department of the existence ol this provision. The failure
to timely notify the department serves as a waiver of the
benefits conferred by this provision. All such sand,
limerock, or limestone mining activities are subject to
jurisdiction under ss. 403.91-403.929 for any activities
carried out after 10 years from October 1, 1984.
(9) The provisions of ss. 403.91-403.929 do not
apply to any application which was complete prior to
October 1. 1984, unless the applicant chooses to come
under ss. 403.91-403.92S.
Hitlory.—s. !. cn. 84-79. 5 «9, cn. 87-225.
'Not®.—Tfanstefred 10 %no\r*t tocation.
403.914 Jurisdictional declaratory statements.—
(1) Before applying for a permit to dredge or fill, a
property owner, an entity which has the power of emi-
nent domain, or another person with a legal or equitable
interest in property may petition the department for a
aeclaratory statement of the dredge and fill jurisdiction
of the department. The department shall, by rule, spec-
ify information which must be provided and may require
authorization to enter upon the property. The depart-
ment may require a fee of at least $250 and not more
than 510,000 to cover the direct costs of acting upon the
petition. The fee shall be based, by rule, upon the size
and environmental complexity of the site for which the
jurisdictional declaratory statement is sought.
(a) Within 30 days of the receipt a petition for a
jurisdictional declaratory statement, the department
shall notify the applicant of any additional information
which may be necessary. The department shall com-
plete the assessment and issue notice of the proposed
agency action within 60 days of receipt of a complete
petition. The notice shall be published by the petitioner
in the Florida Administrative Weekly. The provisions of
ss. 120.57 and 120.59 are applicable to declaratory
statements under this section. Any person whose sub-
stantial interests will be affected may petition for a hear-
ing within 14 days of the publication of notice. If no peti-
tion for a hearing is filed, the department shall issue the
jurisdictional declaratory statement within 10 days.
(b) Such jurisdictional declaratory statement is bind-
ing for a period of 5 years, so long as physical conditions
on the site do not change so as to alter jurisdiction dur-
ing this time period
(c) A petitioner who disputes the proposed agency
action may withdraw the petition without prejudice at
any point prior to final agency action.
(d) The department may revoke a jurisdictional
declaratory statement if it finds that the petitioner has
submitted inaccurate information in the petition.
(2) The department also may issue informal preap-
plication jurisdictional determinations or otherwise insti-
tute jurisdictional determinations on its own initiative as
provided by law.
(3) A jurisdictional declaratory statement obtained
pursuant to this 6ection is final agency action and is in
lieu of a declaratory statement of jurisdiction obtainable
pursuant to s. 120.565.
History.—i i.cn 8*-79: *. 5. ch. 89-3T4
403.916 Local participation in permitting process.
(1) Within 10 days after the receipt of an application
for a permit pursuant to ss. 403.91-403.929. the depart-
ment shall transmit a copy of the application to the chief
executive officer or his designee in each county and
each municipality which has jurisdiction over the area for
which the permit is requested.
(2) The county and municipality shall have the
opportunity to file objections to a short-form dredge and
fill permit application within 20 days after mailing of the
application to the county or municipality, but shall have
up to 60 days after mailing to file objections to any other
dredge and tilt permit application. The county and
municipality shall have the opportunity to participate as
a party to the proceeding and may request a hearing
pursuant to s. 120.57 within 14 days after a notice of
intended agency action has been received by the
county and municipality.
(3) Nothing in ss. 403.91-403.929 alters or modifies
the powers of local government or precluaes a local gov-
ernment from adopting a dredge and fill regulatory pro-
gram, provided the local governmental program is first
approved by the department pursuant to s. 403.182.
Mlttory.—1.1. cn. 84-79: i. 47. en. 86-186
403.918 Criteria for granting or denying permits.—
(1) A permit may not be issued under ss. 403.91-
403.929 unless the applicant provides the department
with reasonable assurance that water quality standards
will not be violated. The department, by rule, shall estab-
lish water quality criteria for wetlands within its jurisdic-
tion, which criteria give appropriate recognition to the
water quality of such wetlands in their natural state.
(2) A permit may not be issued under ss. 403.91-
403.929 unless the applicant provides the department
with reasonable assurance that the project is not con-
trary to the public interest. However, for a project which
significantly degrades or is within an Outstanding Flor-
ida Water, as provided by department rule, the applicant
must provide reasonable assurance that the project will
be clearly in the public interest.
(a) In determining whether a project is not contrary
to the public interest; or is clearly in the public interest,
the department shall consider and balance the following
criteria:
1. Whether the project will adversely affect the pub-
lic health, safety, or welfare or the property of others:
2. Whether the project will adversely affect the con-
servation of fish and wildlife, including endangered or
threatened species, or their habitats:
3. Whether the project will adversely affect naviga-
tion or the flow of water or cause harmful erosion or
shoaling:
4. Whether the project will adversely affect the fish-
ing or recreational values or marine productivity in the
vicinity of the project;
5. Whether the project will be of a temporary or per-
manent nature:
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ENVIRONMENTAL CONTROL
F.S. 1991
6. Whether the project will adversely affect or will
enhance significant historical and archaeological
resources under the provisions of s. 267.061; and
7. The current condition and relative value of func-
tions being performed by areas affected by the pro-
posed activity.
(b) If the applicant is unable to otherwise meet the
criteria set forth in this subsection, the department, in
deciding to grant or deny a permit, shall consider mea-
sures proposed by or acceptable to the applicant to miti-
gate adverse effects which may be caused by the proj-
ect. If the applicant is unable to meet water quality
standards because existing ambient water quality does
not meet stanaards, the department shall consider miti-
gation measures proposed by or acceptable to the appli-
cant that cause net improvement of the water quality in
the receiving body of water for those parameters which
do not meet standards. Reclamation and restoration pro-
grams conducted pursuant to s. 211.32 may be consid-
ered as mitigation to the extent that they restore or
improve the water quality and the type, nature, and func-
tion of biological systems present at the site prior to the
commencement of mining activities. The department
shall conduct a study of ongoing mitigation measures
imposed on individual permitted activities. The study
shall indicate the acreage of wetlands statewide permit-
ted to be created or enhanced and shall include an anal-
ysis of a representative number of different types of miti-
gation sites. The study shall indicate the effectiveness
of each type of mitigation, the reasons observed for the
success or failure of the mitigation, and any need for
improvement of the existing permitting, compliance, and
enforcement process that would require additional legis-
lation to protect the state's wetlands. Recommenda-
tions for legislation shall also include proposed funding
sources. The study, including proposed funding
sources, shall be completed, and a copy shall be sub-
mitted to the Governor, the Speaker of the House of
Representatives, and the President of the Senate, by
January 15, 1991.
(3) It is the intent of the Legislature to provide for the
use of certain waters as a natural means of stormwater
management and to incorporate these waters into com-
prehensive stormwater management systems when
such use is compatible with the ecological characteris-
tics of such waters and with sound resource manage-
ment. To accomplish this, within 6 months following
October 1,1984, the department shall, by rule, establish
performance standards for the issuance of stormwater
permits for the use of certain waters for stormwater man-
agement. The compliance with such standards creates
a presumption in favor of the issuance of the stormwater
management permit. Performance standards shall be
adopted for waters which are dominated by those plant
species listed pursuant to s. 403.817 and:
(a) Which are connected to other watercourses by
artificial watercourses; or
(b) Which are connected to other waters solely by an
intermittent watercourse.
(4) It is the intent of the Legislature to provide for the
use of certain waters that are dominated by those plant
species that are listed pursuant to s. 403.817 to receive
and treat domestic wastewater that at a minimum has
been treated to secondary siandards. No later than
December 31. 1985. the department shall, by rule,
establish criteria for this activity, which criteria protect
the type, nature, and function of the wetlands receiving
the wastewater.
(5)(a) It is the intent cf the Legislature to protect
estuaries and lagoons from the damage created by con-
struction of vertical seawalls and to encourage construc-
tion of environmentally desirable shore protection sys-
tems, such as riprap and gently sloping shorelines
which are planted with suitable aquatic and wetland
vegetation.
(b) No permit for dredging or filling or other construc-
tion to create a vertical seawall may be issued by the
department unless one of the following conditions
exists:
1. The proposed construction is located within a
port as defined in s. 315.02 or s. 403.021;
2. The proposed construction is necessary for the
creation of a marina, the vertical seawalls are necessary
to provide access to walercraft, or the proposed con-
struction is necessary for public facilities;
3. The proposed construction is located within an
existing manmade canal and the shoreline of such canal
is currently occupied in whole or in part by vertical sea-
walls; or
4. The proposed construction is to be conducted
by a public utility when such utility is acting in the per-
formance of its obligation to provide service to the pub-
lic.
(c) When considering an application for a permit to
repair or replace an existing vertical seawall, the depart-
ment shall generally require such seawall to be faced
with riprap material, or to be replaced entirely with riprap
material unless a condition specified in subparagrapn 1.,
subparagraph 2., subparagraph 3., or subparagraph 4.
of paragraph (b) exists.
(d) This subsection shall in no way hinder any activ-
ity previously exempt or permitted or those activities
permitted pursuant to chapter 161.
History.—1.1. ch. S*-79: ss. 70.71. ch. 8*-330. s. 6. ch. 85-269: s. 4. ch. 85-33*:
r 3. cn. 90-227.
403.919 Equitable distribution.—The department,
in deciding whether to grant or deny a permit for an
activity which will affect waters, shall consider:
(1) The impact of the project for which the permit is
sought.
(2) The impact of projects which are existing or
under construction or for which permits or jurisdictional
determinations have been sought.
(3) The impact of projects which are under review,
approved, or vested pursuant to s. 380.06, or other proj-
ects which may reasonably be expected to be located
within the jurisdictional extent of waters, based upon
land use restrictions and regulations.
History.—». I. cfi. W-79: «. 48. en. 86-1B6.
403.92 Notice of intent to deny a permit or notice of
denial of a permit; contents.—In the event that the
department issues a notice of intent to deny a permit or
denies a permit required pursuant to ss. 403.91-
403.929, such notice or denial shall contain an explana-
tion by the department of the reasons for denial and an
explanation, in general terms, of what changes, if any,
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
m ;ne permit application are necessary in order lor tne
aeoartrnent to approve the proposed project.
Hlttory.—s t. cn. 8«-79
403.921 Permits; duration; fees.—
(1)(a) A permit issued under ss. 403.91-403.929
shall be valid for a period not to exceed 10 years. How-
ever. except for permits issued for dredging river chan-
nels, the department may issue a permit for a period not
to exceed 25 years if the applicant provides the depart-
ment with reasonable assurances that:
1. The activity for which the permit is granted can-
not reasonably be expected to be completed within 10
years after commencement of construction: or
2. The activity for which the permit is granted will
cover an area of such size thai it would mi allow :he
department to accurately assess the total inpact ol the
project and the potential for mitigation or restoration, if
permitted by separate permits:
and the applicant supplies the department with suffi-
cient information to allow the department to accurately
assess the impact of the project for the permitted
period.
(b) Notwithstanding the provisions of chapter 120.
the department shall adopt by rule a timetable lor pro-
cessing permits which will be granted for periods of
more than 10 years. In no event shall the timetable
exceed 135 days after receipt of a complete application.
(c) Every permit issued for a period of time in excess
of 5 years shall be reviewed at the expiration of the first
5-year period and every 5 years thereafter:
1. To ensure that the conditions < ' the permit are
being met by the applicant, and
2. To automatically include as permit conditions all
applicable rules adopted during the prior 5-year period.
If the permit applicant has acted in reliance upon a per-
mit which was issued for a period of 10 years or more,
this subparagraph will not apply until the expiration of
the initial 10-year period.
(d) This subsection does not apply to any permit
issued pursuant to s. 403.816.
(2) The department is authorized to establish a slid-
ing scale of appropriate fees for projects which seek per-
mits for a period of time which exceeds 5 years, based
on the duration of the permit, with a minimum fee of
$1,250 and a maximum fee of $25,000. Such funds shall
be deposited in the Florida Permit Fee Trust Fund cre-
ated by s. 403.0871.
History.—». i. eft. W-79. %. 21. ch. 89-175: j. 6. eft. 89-32*
403.922 Applications for activities on state sover-
eignty lands or other state lands.—If sovereignty lands
or other lands owned by the state are the subject of a
proposed activity, the issuance of a permit by the
department shall be conditioned upon the receipt by the
applicant of all necessary approvals and authorizations
from the Board of Trustees of the Internal Improvement
Trust Fund prior to the undertaking of such activity. The
department shall issue its permit conditioned upon the
securing of the necessary consent or approvals from the
Board of Trustees of the Internal Improvement Trust
Fund by the applicant, if the approval or authorization of
the board is required, the applicant may not commence
any excavation, construction, or other activity until such
approval or authorization has been issued.
History.—s. 1. cn 6*-79
403.923 Effect of issuance of permit on need to
obtain other permits under this chapter.—The issuance
of a permit under ss. 403.91-403.929 does not relieve
the applicant from the requirement of obtaining any
otner permit which may be required unaer tne other pro-
visions of this chapter.
Hlttory.—%. V eft. 84-79.
403.924 Enforcement of ss. 403.91-403.929.—
(1) A violation of the requirements of ss. 403.91-
403.929 or a rule, permit, or order issued hereunder by
the department or of an approved local program is pun-
ishaDle by a civil penalty as provided in s. 403.141 or a
criminal penalty as provided in s. 403.161.
(2) The department or any approved local program
may seek to enjoin the violation of or to enforce compli-
ance with the provisions of ss. 403.91-403.929, or any
rule, permit, or order issued hereunder, as provided in
ss. 403.121, 403.131, 403.141, and 403.161.
(3) A permit issued under ss. 403.91-403.929 may
be revoked upon the same grounds as are provided in
s. 403.087.
(4) The department or the Board of Trustees of the
Internal Improvement Trust Fund has the authority to
direct an abutting upland owner to remove from sub-
merged sovereignty lands or state-owned lands any fill
created in violation of ss. 403.91-403.929. except that
the department or the board may consider the time at
which the submerged land was filled, the length of
upland ownership by the current owner, and any other
equitable consideration. In the event that the abutting
upland owner does not remove such fill as directed, the
department or board may remove it at its own expense,
and the costs of removal will become a lien upon the
property of such abutting upland owner. However, the
department and board may, if they choose, allow such
fill to remain as state-owned land and may employ a sur-
veyor to determine the boundary between such state
land and that of the abutting upland owner. The amount
of the cost of such survey will become a lien on the prop-
erty of the abutting upland owner. Nothing herein may
be construed to grant the department or the board
authority to direct an upland owner to adjust, alter, or
remove silt, fill, or other solid material which has accumu-
lated or has been deposited seaward of his property,
through no fault of the owner.
Mlitory.— $. l. cn. &A-79. » 6. ch. 89-1*3.
403.925 Review of departmental action.—Final
actions of the department under ss. 403.91-403.929
shall be reviewed pursuant to chapter 120.
HJ»tory.—s. ). ch $4-79
403.927 Use of water in farming and forestry activi-
ties.—
(1) The Legislature recognizes the great value of
farming and forestry to this state and that continued
agricultural activity is compatible with wetlands protec-
tion. In order to avoid unnecessary expense and delay
from duplicative programs, it is the intent of the Legisla-
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ENVIRONMENTAL CONTROL
F.S. 1991
lure to provide foi*'he construction and operation o! agri-
cultural water management systems under authority
grantee to water management districts and to control,
by the department or by delegation of authority to water
management districts, the ultimate discharge from agri-
cultural water management systems.
(2) Agricultural activities and agricultural water man-
agement systems are authorized by this section and are
not subject to the provisions of s. 403.087 or ss. 403.91-
403.92S. nor shall the department enforce water quality
standards within an agricultural water management sys-
tem. The department may require a stormwater permit
cr aporopriate discharge permit at the ultimate point of
discharge from an agricultural water management sys-
tem or a group of connected agricultural water manage-
ment systems. Impacts of agricultural activities and agri-
cultural water management systems on groundwater
quality shall be regulated by water management dis-
tricts.
(3) If land served by a water management system is
converted to a use other than an agricultural use, the
water management system, or the portion of the system
which serves that land, will be subject to the provisions
of this chapter.
(4) As used in this section, the term:
(a) 'Agricultural activities' includes all necessary
farming and forestry operations which are normal and
customary for the area, such as site preparation, clear-
ing, fencing, contouring to prevent soil erosion, soil
preparation, plowing, planting, harvesting, construction
of access roads, and placement of bridges and culverts,
provided such operations do not impede or divert the
flow of surface waters.
(b) "Agricultural water management systems* means
farming and forestry water management or irrigation sys-
tems and farm ponds which are permitted pursuant to
chapter 373 or which are exempt from the permitting
provisions of that chapter.
(c) "Farm pond' means a pond located on a farm,
used for farm purposes, as determined by water man-
agement district rule.
Mlttory.—s. I. ch. M-79: 5. 25. cn. 91-192: >. 23, cft. 9)-305.
403.929 Wetlands monitoring system.—
(1) The department, in cooperation with the water
management districts and other state agencies, shall
establish a central wetlands monitoring system that will:
(a) Determine the general location and acreages of
wetland areas in the state.
(b) Identify impacts to and losses of wetlands due
to permits issued by either the department or the water
management districts and identify known losses of wet-
lands from unregulated or exempted activities or from
changes in natural conditions.
(c) Compile and maintain a statistical record of all
action taken on permits, including the number granted,
denied, or withdrawn; the area permitted to be dis-
turbed; and, where applicable, the acreage preserved or
restored as a result of mitigation or permit conditions.
(2) It is the intent of the Legislature that the depart-
ment utilize existing, available information to the great-
est extent practicable in developing this inventory of
wetlands, including Landsat digital data, federal agency
data, ana data currently in the possession of the depart-
ment, the water management districts, and other state,
regional, or local agencies. The department shall annu-
ally prepare a report reflecting the information requested
in paragraphs (1 )(b) and (c), to be delivered to the Legis-
lature on or before February 1 of each year. The informa-
tion contained in this report shall not De used for regula-
tory purposes.
History.—s. 1. ch. 8^-79: s. 57. ch. 85-81.
403.93 Definitions of terms used in ss. 403.93-
403.938.—For the purposes of ss. 403.93-403.938, the
term:
(1) 'Alter'1 means to cut, remcve, defoliate, or other-
wise destroy but does not mean selective trimming
which does not eliminate the biological integrity of the
individual plant.
(2) "Mangrove" means any specimen of the species
Laguncularia racemosa (white mangrove), Rhizophora
mangle (red mangrove), or Avicennia germinans (black
mangrove).
History.—*. 50. ch. 8-4-333.
403.931 Alteration of mangroves; permit proce-
dure.—
(1) No person may alter or cause to be altered any
mangrove in waters where a permit is required for dredg-
ing or filling except pursuant to a permit issued by the
department or as otherwise provided by ss. 403.93-
403.938. Any violation of this section shall be presumed
to have occurred with the knowledge and consent of any
owner, trustee, or other person who directly or indirectly
has charge, control, or management, either exclusively
or with others, of the property upon which such violation
occurs. However, this presumption may be rebutted by
competent, substantial evidence that the violation was
not authorized by the owner, trustee, or other person.
(2) No separate application is required for an alter-
ation permit if the alteration is addressed in an applica-
tion for a dredge or fill permit or certification or applica-
tion for boat dock or walkway under this chapter; the
procedures for dredge or fill permitting will control in
such instances.
(3) The department, on or before September 30,
1986, shall adopt a general perm1' accordance with s.
403.814, which permit authorizes the alteration of man-
groves in accordance with procedures designed to pro-
tect the integrity of mangrove trees. The department, on
or before September 30, 1986, shall establish a special
general permit to allow for alteration of mangroves in
manmade canals constructed after January 1, 1957,
which were upland of waters of the state as defined in
s. 403.817 and are not directly connected to a Class II
water body or to Outstanding Florida Waters.
(4) The provisions of ss. 403.93-403.938 do not
apply to any alteration that was addressed in a dredge
and fill application which was complete prior to July 1,
1984, unless the applicant chooses to come under this
act.
(5) Notwithstanding the provisions in subsection (3),
a landowner has the right to selectively trim individual
mangrove plants in order to better enjoy the coastal
water vistas and other aesthetic qualities associated
with the ownership of riparian lands.
History.—v 51. ch S4-338, s <9. ch, 86-166
124
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F.S. 1991
ENVIRONMENTAL CONTROL
Ch. 403
403.932 Exceptions and authorized alterations of
mangroves.—The provisions of this act do not apply io:
(1) The alteraiion of mangrove trees by a duly consti-
tuted communication, water, sewerage, electrical, or
other utihiy company or a federal, state, county, or
municipal agency, or engineers or surveyors working
under a contract with such utility company or agency,
when such alteration is done as a governmental function
of such agency.
(2) The alteration of mangrove trees by a duly consti-
tuted communication, water, sewerage, electrical, or
other utility company in or adjacent to a public or private
easement or right-of-way, provided such alteration is
limited to those areas where it is necessary for the main-
tenance of existing lines or facilities or for the construc-
tion ot new lines or facilities in furtherance o! providing
utility service to its customers and provided such alter-
ation is conducted so as to avoid any unnecessary alter-
ation of mangrove trees.
(3) The alteration of mangrove trees by a duly consti-
tuted communication, water, sewer, or electrical utility
company on the grounds of a water treatment plant,
sewage treatment plant, or electric power plant or sub-
station in furtherance of providing utility service to its
customers, provided such alteration is conducted so as
to avoid any unnecessary alteration of mangrove trees.
(4) The alteration of a mangrove tree by a state-
licensed land surveyor in the performance of his duties
provided such alteration is to individual trees. The alter-
ation of mangrove trees by a surveyor, which alteration
requires trimming a swath greater than 3 feet in width
requires approval by the department p ior to such alter-
ation.
Mlitofy.—s. 56. cn. 84-338: s. 50. ctv 86-186.
403.933 Alteration of mangroves; criteria.—By
June 1. 1935, the department shall adopt a rule which
specifies criteria tor altering mangroves and a procedure
tor issuing permits to do so. Such criteria shall be based
solely upon the dredge and fill permit criteria set forth
in this chapter.
Hlitory.—s. 54. cn. 64-338
403.935 Restoration of unlawfully Bltered man-
groves.—In the event that a violator does not restore
altered mangroves to the standards of the Department
of Environmental Regulation, the department may
restore the altered mangroves at its own expense, and
the cost of the restoration will become a lien upon the
property of the violator.
History.—$. 52. cn.
403.936 Enforcement of provisions relating to man-
groves.—The responsibility of the department for the
enforcement of the provisions of ss. 403.93-403.938
shall be pursuant to ss. 403.141 and 403.161.
Hlatofy.—t. S3, cfl. 84-338; >. 6. ch. 89-143.
403.938 Variance relief.—Upon application, the
department may grant a variance from the provisions of
ss. 403.93-403.938 if compliance therewith would
impose a unique and unnecessary hardship on the
owner or any other person in control of the affected
property. Relief may be granted only upon demonstra-
tion that such hardship is peculiar to the affected prop-
erty and is not self-imposed and that the grant of the
variance will be consistent with the general intent and
purpose of ss. 403.93-403.938. The department may
grant variances as it deems appropriate.
History.—s. 55. cti. 84-338.
125
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s. 402.305
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.031
established by s. 411.222, to develop recommendations
for inclusion, unedited, in the State Coordinating Council
tor Early Childhood Services annual report as required
by s. 411,222(4)(f), and provide technical assistance to
the department for the adoption of rules for licensing
child care facilities in accordance with the minimum
standards established in this section. The review panel
must consist of seven members, five of whom must be:
(a) An owner or operator of a subsidized child care
facility;
(b) An owner or operator of a proprietary child care
facility;
(c) An owner or operator of a licensed church child
care facility;
(d) A child care provider that has attained a child
development associate credential; and
(e) A child care provider that has attained a child
care professional credential.
The initial technical review panel members must be
appointed by October 1, 1992, for a term of 3 years. No
member shall serve more than two consecutive terms.
History. —s 5. cn 7J-1I3. s 3. ch 76-158. s l.cn 77--S7. ss 2.3. ch 81-318.
ss. 1. 6. 7. cn. 83-240. $ 3, cn 8*5-551. s 24, cn 85-$4. s 41. cn 87-225. s. 23.
ch, 87-238, s 25. cn 89-379. s 2 cn 90-35. s ? cn 90-225. s 35. cn 90-306.
s t0. cn 9J-33.s 20.cn 9i-57.$ 92.cn 9i-22i.s 2.cn 9- 300. s 56.cn 92-58
•Note.—Expires Ociooer 1. 1993. pursuant to s 7. cn 83-248. ano is scneauied
lor review pursuant 10 s 11 6' m acvance of max care
402.3198 Intergenerational child care facilities.—
[Repealed by s. 26. ch. 92-173 ]
402.35 Employees.—All personnel of the Depart-
ment of Health and Rehabilitative Services shall be gov-
erned by rules and regulations adopted and promul-
gated by the Department of Management Services rela-
tive thereto except the director and persons paid on a
fee basis. The Department of Health and Rehabilitative
Services may participate with other state departments
and agencies in a joint merit system. No federal, state,
county, or municipal officer shall be eligible to serve as
an employee of the Department of Health and Rehabili-
tative Services.
History. —s l.cn 69-260: ss 19, 31.35. cn 69-106 s i. cn. 70-255. s .l7.cn
78-433. s 126. cn 92-279 s 55, cn 92-326
Note.—Former s 409 135-
CHAPTER 403
ENVIRONMENTAL CONTROL
PART I
POLLUTION CONTROL
403.031 Definitions.
403.061 Department: powers and duties.
403.0612 Partners for a better Florida through cooper-
ative efforts for economic development
and environmental quality; advisory coun-
cil.
403.0852 Small Business Stationary Air Pollution
Source Technical and Environmental
Compliance Assistance Program.
403.087 Permits: general issuance: denial: revoca-
tion: prohibition;- pena'tv.
403.0872
403.0873
403.0876
403.0885
403.101
403.1659
403.1834
403.1835
Air pollution operation permits for major
sources; annual operation license fee.
Florida Air-Operation License Fee Account.
Permits; processing.
Establishment of federally approved state
National Pollutant Discharge Elimination
System (NPDES) program.
Classification of operators and of air and
water contaminant sources; reporting
requirements.
Florida Groundwater Protection Task Force.
State bonds to finance or refinance facilities,
exemption from taxation.
Sewage treatment facilities revolving loan
program.
403.031 Definitions.—In construing this chapter, or
rules and regulations adopted pursuant hereto, the fol-
lowing words, phrases, or terms, unless the context oth-
erwise indicates, have the following meanings:
(1) "Contaminant" is any substance which is harmful
to plant, animal, or human life.
(2) "Department" is the Department of Environmen-
tal Regulation.
(3) "Effluent limitations" means any restriction estab-
lished by the department on quantities, rates, or concen-
trations of chemical, physical, biological, or other con-
stituents which are discharged from sources into waters
of the state.
(4) "Installation" is any structure, equipment, or facil-
ity, or appurtenances thereto, or operation which may
emit air or water contaminants in quantities prohibited
by rules of the department.
(5) "Person" means the state or any agency or insti-
tution thereof or any municipality, political subdivision,
public or private corporation, individual, partnership,
association, or other entity and includes any officer or
governing or managing body of any municipality, politi-
cal subdivision, or public or private corporation.
(6) "Plant" is any unit operation, complex, area, or
multiple of unit operations that produce, process, or
cause to be processed any materials, the processing ol
which can, or may, cause air or water pollution.
(7) "Pollution" is the presence in the outdoor atmos-
phere or waters of the state of any substances, contami-
nants, noise, or manmade or man-induced impairment
of air or waters or alteration of the chemical, physical,
biological, or radiological integrity of air or water in quan-
tities or at levels which are or may be potentially harmful
or injurious to human health or welfare, animal or plant
life, or property or which unreasonably interfere with the
enjoyment of life or property, including outdoor recre-
ation unless authorized by applicable law.
(8) "Pollution prevention" means the steps taken by
a potential generator of contamination or pollution to
eliminate or reduce the contamination or pollution before
it is discharged into the environment. The term includes
nonmandatory steps taken to use alternative lorms of
energy, conserve or reduce the use of energy, substi-
tute nontoxic materials for toxic materials, conserve or
reduce the use of toxic materials and raw materials,
reformulate products, mod'fy manufacturing or other
processes, improve in-plant maintenance and opera-
1178
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s. 403.031 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 403.031
tions. implement environmental planning before expand-
ing a facility, and recycle toxic or other raw materials.
(9) "Sewerage system" means pipelines or conduits,
pumping stations, and force mams and all other struc-
tures, devices, appurtenances, and facilities used for
collecting or conducting wastes to an ultimate point for
treatment or disposal.
(10) "Source" is any and all points of origin of the item
defined in subsection (1), whether privately or publicly
owned or operated.
(11) "Treatment works" and "disposal systems" mean
any plant or other works used for the purpose of treat-
ing, stabilizing, or holding wastes.
(12) "Wastes" means sewage, industrial wastes, and
all other liquid, gaseous, solid, radioactive, or other sub-
stances which may pollute or tend to pollute any waters
of the state.
(13) "Waters" include, but are not limited to, rivers,
lakes, streams, springs, impoundments, and all other
waters or bodies of water, including fresh, brackish,
saline, tidal, surface, or underground waters. Waters
owned entirely by one person other than the state are
included only in regard to possible discharge on other
property or water. Underground waters include, but are
not limited to, all underground waters passing through
pores of rock or soils or flowing through in channels,
whether manmade or natural. Solely for purposes of this
chapter, waters of the state also include the area
bounded by the following:
(a) Commence at the intersection of State Road
(SRD) 5 (U.S. 1) and the county line dividing Dade and
Monroe Counties, said point also being the mean high-
water line of Florida Bay, located in section 4, township
60 south, range 39 east of the Tallahassee Meridian lor
the point of beginning. From said point of beginning,
thence run northwesterly along said SRD 5 to an inter-
section with the north line of section 18. township 58
south, range 39 east: thence run westerly to a point
marking the southeast corner of section 12. township 58
south, range 37 east, said point also lying on the east
boundary of the Everglades National Park; thence run
north along the east boundary of the aforementioned
Everglades National Park to a point marking the north-
east corner of section 1. township 58 south, range 37
east; thence run west along said park to a point marking
the northwest corner of said section 1. thence run north-
erly along said park to a point marking the northwest
corner of section 24, township 57 south, range 37 east;
thence run westerly along the south lines of sections 14,
15, and 16 to the southwest corner of section 16; thence
leaving the Everglades National Park boundary run
northerly along the west line of section 16 to the north-
west corner of section 16; thence east along the north-
erly line of section 16 to a point at the intersection of the
east one-half and west one-naif of section 9; thence
northerly along the line separating the east one-half and
the west one-halt of sections 9. 4. 33. and 28; thence
run easterly along the north line of section 28 to the
northeast comer of section 28; thence run northerly
along the west line of section 22 to the northwest corner
of section 22; thence easterly along tne north line of sec-
tion 22 to a pomi at the intersection of the east one-half
and west one-haif of section 15: thence run northerly
along said line ;o the point of intersection wiin the north
line of section 15; thence easterly along the north line of
section 15 to the northeast corner of section 15; thence
run northerly along the west lines of sections 11 and 2
to the northwest corner of section 2; thence run easterly
along the north lines of sections 2 and 1 to the northeast
corner of section 1, township 56 south, range 37 east:
thence run north along the east line of section 36. town-
ship 55 south, range 37 east to the northeast corner of
section 36; thence run west along the north line of sec-
tion 36 to the northwest corner of section 36; thence run
north along the west line of section 25 to the northwest
corner of section 25; thence run west along the north line
of section 26 to the northwest corner of section 26;
thence run north along the west line of section 23 to the
northwest corner of section 23: thence run easterly
along the north line of section 23 to the northeast corner
of section 23; thence run north along the west line of
section 13 to the northwest corner of section 13; thence
run east along the north line of section 13 to a point of
intersection with the west line of tne southeast one-
quarter of section 12; thence run north along the west
line of the southeast one-quarter of section 12 to the
northwest corner of the southeast one-quarter of sec-
tion 12; thence run east along the north line of the south-
east one-quarter of section 12 to the point of intersec-
tion with the east line of section 12; thence run east
along the south line of the northwest one-quarter of sec-
tion 7 to the southeast corner of the northwest one-
quarter of section 7; thence run north along the east line
of the northwest one-quarter of section 7 to the point of
intersection with the north line of section 7; thence run
northerly along the west line of the southeast one-
quarter of section 6 to the northwest corner of the south-
east one-quarter of section 6; thence run east along the
north lines of the southeast one-quarter of section 6 and
the southwest one-quarter of section 5 to the northeast
corner of the southwest one-quarter of section 5:
thence run northerly along the east line of the northwest
one-quarter ot section 5 to the point of intersection with
the north line of section 5: thence run northerly along the
line dividing the east one-half and the west one-half of
Lot 5 to a point intersecting the north line of Lot 5;
thence run east along the north line of Lot 5 to the north-
east corner of Lot 5, township 54'/> south, range 38 east;
thence run north along the west line of section 33, town-
ship 54 south, range 38 east to a point intersecting the
northwest corner of the southwest one-quarter of sec-
tion 33; thence run easterly along the north line of the
southwest one-quarter of section 33 to the northeast
corner of the southwest one-quarter of section 33;
thence run north along the west line of the northeast
one-quarter of section 33 to a point intersecting the
north line of section 33; thence run easterly along the
north line of section 33 to the northeast corner of section
33: thence run northerly along the west line of section
27 to a point intersecting the northwest corner of the
southwest one-quarter of section 27; thence run east-
erly to the northeast corner of the southwest one-
quarter of section 27; thence run northerly along the
west line of the northeast one-quarter ol section 27 to
a point intersecting the north line of section 27; thence
run west along the north line of section 27 to the nortn-
1179
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s. 403.031
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.031
west corner of section 27; thence run north along the
west lines of sections 22 and 15 to the northwest corner
of section 15: thence run easterly along the north lines
of sections 15 and 14 to the point of intersection with the
L-31N Levee, said intersection located near the south-
east corner of section 11, township 54 south, range 38
east; thence run northerly along Levee L-31N crossing
SRD 90 (U.S. 41 Tamiami Trail) to an intersection com-
mon to Levees L-31N, L-29, and L-30, said intersection
located near the southeast corner of section 2, township
54 south, range 38 east; thence run northeasterly, north-
erly, and northeasterly along Levee L-30 to a point of
intersection with the Dade/Broward Levee, said inter-
section located near the northeast corner of section 17,
township 52 south, range 39 east: thence run due east
to a point of intersection with SRD 27 (Krome Ave.);
thence run northeasterly along SRD 27 to an intersection
with SRD 25 (U.S. 27), said intersection located in sec-
tion 3, township 52 south, range 39 east; thence run
northerly along said SRD 25, entering into Broward
County, to an intersection with SRD 84 at Andytown;
thence run southeasterly along the aforementioned SRD
84 to an intersection with the southwesterly prolonga-
tion of Levee L-35A, said intersection being located in
the northeast one-quarter of section 5, township 50
south, range 40 east; thence run northeasterly along
Levee L-35A to an intersection of Levee L-36. said inter-
section located near the southeast corner of section 12,
township 49 south, range 40 east; thence run northerly
along Levee L-36, entering into Palm Beach County, to
an intersection common to said Levees L-36. L-39, and
L-40, said intersection located near the west quarter
corner of section 19, township 47 south, range 41 east;
thence run northeasterly, easterly, and northerly along
Levee L-40, said Levee L-40 being the easterly bound-
ary of the Loxahatchee National Wildlife Refuge, to an
intersection with SRD 80 (U.S. 441), said intersection
located near the southeast corner of section 32, town-
ship 43 south, range 40 east; thence run westerly along
the aforementioned SRD 80 to a point marking the inter-
section of said road and the northeasterly prolongation
of Levee L-7, said Levee L-7 being the westerly bound-
ary of the Loxahatchee National Wildlife Refuge; thence
run southwesterly and southerly along said Levee L-7
to an intersection common to Levees L-7. L-15 (Hills-
borough Canal), and L-6: thence run southwesterly
along Levee L-6 to an intersection common to Levee
L-6, SRD 25 (U.S. 27), and Levee L-5, said intersection
being located near the northwest comer of section 27,
township 47 south, range 38 east: thence run westerly
along the aforementioned Levee L-5 to a point intersect-
ing the east line of range 36 east; thence run northerly
along said range line to a point marking tne northeast
corner of section 1, township 47 south, range 36 east;
thence run westerly along the north line of township 47
south, to an intersection with Levee L-23/24 (Miami
Canal): thence run northwesterly along the Miami Canal
Levee to a point intersecting the north line of section 22.
township 46 south, range 35 east: thence run westerly
to a point marking the northwest comer of section 21,
township 46 south, range 35 east; thence run southerly
to the southwest corner of said section 21: thence run
westerly to a point marking tne northwest corner ol sec-
tion 30, township 46 south, range 35 east, said point also
being on the line dividing Palm Beach and Hendry Coun-
ties; from said point, thence run southerly along said
county line to a point marking the intersection of Brow-
ard, Hendry, and Collier Counties, said point also being
the northeast corner of section 1, township.49 south,
range 34 east; thence run westerly along the line divid-
ing Hendry and Collier Counties and continuing along
the prolongation thereof to a point marking the south-
west corner of section 36. township 48 south, range 29
east; thence run southerly to a point marking the south-
west corner of section 12, township 49 south, range 29
east; thence run westerly to a point marking the south-
west corner of section 10. township 49 south, range 29
east; thence run southerly to a point marking the south-
west corner of section 15, township 49 south, range 29
east; thence run westerly to a point marking the north-
west corner of section 24, township 49 south, range 28
east, said point lying on the west boundary of the Big
Cypress Area of Critical State Concern as described in
'Rule 27F-3, Florida Administrative Code: thence run
southerly along said boundary crossing SRD 84 (Alliga-
tor Alley) to a point marking the southwest corner of sec-
tion 24, township 50 south, range 28 east; thence leav-
ing the aforementioned west boundary of the Big
Cypress Area of Critical State Concern run easterly to
a point marking the northeast corner of section 25. town-
ship 50 south, range 28 east; thence run soutnerly along
the east line of range 28 east to a point lying approxi-
mately 0.15 miles south of the northeast comer of sec-
tion 1, township 52 south, range 28 east; thence run
southwesterly 2.4 miles more or less to an intersection
with SRD 90 (U.S. 41 Tamiami Trail), said intersection
lying 1.1 miles more or less west of the east line of range
28 east; thence run northwesterly and westerly along
SRD 90 to an intersection with the west line of section
10. township 52 south, range 28 east; thence leaving
SRD 90 run southerly to a point marking the southwest
corner of section 15, township 52 south, range 28 east;
thence run westerly crossing the Faka Union Canal 0.6
miles more or less to a point; thence run southerly and
parallel to the Faka Union Canal to a point located on the
mean high-water line of Faka Union Bay; thence run
southeasterly along the mean high-water line of the vari-
ous bays, rivers, inlets, and streams to the point of
beginning.
(b) The area bounded by the line described in para-
graph (a) generally includes those waters to be known
as waters of the state. The landward extent of these
waters shall be determined as provided in s. 403.817.
Any waters which are outside the general boundary line
described in paragraph (a) but which are contiguous
thereto by virtue of the presence of a watercourse or as
determined pursuant to 's. 17-4.022, Florida Administra-
tive Code, shall be a part of this water body. Any areas
within the line described in paragraph (a) which are not
within the jurisdiction ol the departmeni as determined
pursuant to 's. 17-4.022. Florida Administrative Code,
shall be excluded therefrom. If the Florida Environmental
Regulation Commission designates the waters wiihm
the boundaries an Outstanding Florida Water, waters
outside the bounda'ies shai: noi be included as part o!
such designation unless a heanng is held pu-SLan! tc
1180
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s. 403.031 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 403.061
notice in each appropriate county and the boundaries ot
such lands are specifically considered and described for
such designation.
(14) "State water policy" means the comprehensive
statewide policy as adopted by the department pursu-
ant to ss. 373.026 and 403.061, setting forth goals,
objectives, and guidance for the development and
review of programs, rules, and plans relating to water
resources.
(15) "Stormwater management program" means the
institutional strategy for stormwater management,
including urban, agricultural, and other stormwater.
(16) "Stormwater management system" means a sys-
tem which is designed and constructed or implemented
to control discharges which are necessitated by rainfall
events, incorporating methods to collect, convey, store,
absorb, inhibit, treat, use, or reuse water to prevent or
reduce flooding, overdrainage, environmental degrada-
tion and water pollution or otherwise affect the quantity
and quality of discharges from the system.
(17) "Stormwater utility" means the funding of a storm-
water management program by assessing the cost of
the program to the beneficiaries based on their relative
contribution to its need. It is operated as a typical utility
which bills services regularly, similar to water and waste-
water services.
(18) "Watershed" means the land area which contrib-
utes to the flow of water into a receiving body of water.
(19) "Major source of air pollution" means a stationary
source of air pollution, or any group of stationary sources
within a contiguous area and under common control,
which emits any regulated air pollutant and which is any
of the following:
(a) A major source within the meaning of 42 U.S.C.
s. 7412(a)(1);
(b) A major stationary source or major emitting facil-
ity within the meaning of 42 U.S.C. s. 7602(j);
(c) An affected source within the meaning of 42
U.S.C. s. 7651 a( 1);
(d) An air pollution source subject to standards or
regulations under 42 U.S.C. s. 7411 or s. 7412; provided,
however, that a source is not a major source solely
because of its regulation under 42 U.S.C. s. 74l2(r); or
(e) A stationary air pollution source belonging to a
category designated as a 40 C.F.R. part 70 source by
regulations adopted by the administrator of the United
States Environmental Protection Agency under 42
U.S.C. s. 7661 et seq.
(20) "Small business stationary source' means a
stationary source of air pollution which:
(a) Is owned or operated by a person who employs
100 or fewer individuals.
(b) Is a smail business concern as defined in 15
'J S C. s. 632
(c) Is other than a major stationary source within the
meaning of 42 U S C. s. 7602(j).
(a) Emits less than 50 tons per year of any regulated
pollulani
(e) Emits less than 75 Ions per year of all regulated
pollutants
(21) "Regulated air pollutant" means:
(a) A voiai'ie oigamc compound:
(b) Any pollutant regulated under 42 U.S.C. s. 7411
or s. 7412; or
(c) Any pollutant for which a national primary ambi-
ent air quality standard has been adopted.
(22) "Electrical power plant" means, for purposes of
part I of this chapter, any electrical generating facility
that uses any process or fue! and that is owned or oper-
ated by an electric utility, as defined in s. 403.503(13),
and includes any associated facility that directly sup-
ports the operation of the electrical power plant.
History.—s 4. ch. 67-436 ss. 26.35. ch 69-106. s 1. ch. 71-36. s 2. ch. 71-137.
s 153. ch 71-377; s. 1. ch. 73-46. s 112. ch 73-333; ss. i. 2, ch 74-133, s 1. ch
77-174. s 72. ch 79-65; s. 13. ch. 84-79. s l. ch 89-143. s 30, ch. 89-279; s 22.
ch 91-305: s. 1. ch. 92-132
'Note.—Transferred io another location
403.061 Department; powers and duties.—The
department shall have the power and the duty to control
and prohibit pollution of air and water in accordance with
the law and rules and regulations adopted and promul-
gated by if and, for this purpose, to:
(1) Approve and promulgate current and long-range
plans developed to provide for air and water quality con-
trol and pollution abatement.
(2) Hire only such employees as may be necessary
to effectuate the responsibilities of the department.
(3) Utilize the facilities and personnel of other state
agencies, including the Department of Health and Reha-
bilitative Services, and delegate to any such agency any
duties and functions as the department may deem nec-
essary to carry out the purposes of this act.
(4) Secure necessary scientific, technical, research,
administrative, and operational services by interagency
agreement, by contract, or otherwise. All state agencies,
upon direction of the department, shall make these ser-
vices and facilities available.
(5) Accept state appropriations and loans and
grants from the Federal Government and from other
sources, public or private, which loans and grants shall
not be expended for other than the purposes of this act.
(6) Exercise general supervision of the administra-
tion and enforcement of the laws, rules, and regulations
pertaining to air and water pollution.
(7) Adopt, modify, and repeal rules and regulations
to carry out the intent and purposes of this act. Any ruie
or regulation adopted pursuant to this act shall be
consistent with the provisions of federal law, if any, relat-
ing to control of emissions from motor vehicles, effluent
limitations, pretreatment requirements, or standards of
performance. Rules adopted pursuant to this act shall
not require dischargers of waste into waters of the state
to improve natural background conditions. Discharges
from steam electric generating plants existing or
licensed under this chapter on July 1. 1984. shall not be
required to be treated to a greater extent than may be
necessary to assure that the quality of nonthermal com-
ponents of discharges from nonrecirculated cooling
water systems is as high as the quality of the makeup
waters; that the quality of nonthermal components of
discharges from recirculated cooling water systems is
no lower than is allowed for blowdown from such sys-
tems: or that the quality of noncooling system dis-
charges which receive makeup water from a receiving
body of water which does no! meet applicable depart-
1181
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s. 403.061
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.061
ment water quality standards is as high as the quality of
the receiving body ot water. The department may not
adopt standards more stringent than federal regula-
tions. except as provided in s. 403.804.
(8) Issue such orders as are necessary to effectuate
the control of air and water pollution and enforce the
same by all appropriate administrative and judicial pro-
ceedings.
(9) Adopt a comprehensive program for the preven-
tion, control, and abatement of pollution of the air and
waters of the state, and from time to time review and
modify such program as necessary.
(10) Develop a comprehensive program for the pre-
vention, abatement, and control of the pollution of the
waters of the state. In order to effect this purpose, a
grouping of the waters into classes may be made in
accordance with the present and future most beneficial
uses. Such classifications may from time to time be
altered or modified. However, before any such classifi-
cation is made, or any modification made thereto, public
hearings shall be held by the department.
(11) Establish ambient air quality and water quality
standards for the state as a whole or for any part thereof,
and also standards for the abatement of excessive and
unnecessary noise. The department is authorized to
establish reasonable zones of mixing for discharges into
waters.
(a) When a receiving body of water fails to meet a
water quality standard for pollutants set forth in depart-
ment rules, a steam electric generating plant discharge
of pollutants that is existing or licensed under this chap-
ter on July 1, 1984, may nevertheless be granted a mix-
ing zone, provided that:
1. The standard would not be met in the water body
in the absence of the discharge:
2. The discharge is in compliance with all applica-
ble technology-based effluent limitations;
3. The discharge does not cause a measurable
increase in the degree of noncompliance with the stan-
dard at the boundary of the mixing zone; and
4. The discharge otherwise complies with the mix-
ing zone provisions specified in department rules.
(b) No mixing zone for point source discharges shall
be permitted in Outstanding Florida Waters except for:
1. Sources which have received permits from the
department prior to April 1, 1982, or the date of designa-
tion, whichever is later;
2. Blowdown from new power plants certified pur-
suant to the Florida Electrical Power Plant Siting Act;
and
3. Discharges of water necessary for water man-
agement purposes which have been approved by the
governing board of a water management district and, if
required by law, by the secretary.
Nothing in this act shall be construed to invalidate any
existing department rule relating to mixing zones. The
department shall cooperate with the Department of
Highway Safety and Motor Vehicles in the development
of regulations required by s. 316.272(1).
(12)(a) Cause field studies to be made and samples
to be taken out of the air and from the waters of the state
periodically and in a logical geographic manner so as to
determine the levels of air quality of the air and water
quality of the waters of the state.
(b) Determine the source of the pollution whenever
a study is made or a sample collected which proves to
be below the air or water quality standard set for air or
water.
(13) Require persons engaged in operations which
may result in pollution to file reports which may contain
information relating to locations, size of outlet, height of
outlet, rate and period of emission, and composition and
concentration of effluent and such other information as
the department shall prescribe to be filed relative to pol-
lution.
(14) Establish a permit system whereby a permit may
be required for the operation, construction, or expansion
of any installation that may be a source of air or water
pollution and provide for the issuance and revocation of
such permits and for the posting of an appropriate bond
to operate.
(a) Notwithstanding any other provision of this chap-
ter, the Department of Environmental Regulation may
authorize, by rule, the Department of Transportation to
perform any activity requiring a permit from the Depart-
ment of Environmental Regulation covered by this chap-
ter, upon certification by the Department of Transporta-
tion that it will meet all requirements imposed by statute,
rule, or standard lor environmental control and protec-
tion as such statute, rule, or standard applies to a gov-
ernmental program. To this end, the Department of Envi-
ronmental Regulation may accept such certification of
compliance for programs of the Department of Transpor-
tation, may conduct investigations for compliance, and,
if a violation is found to exist, may take all necessary
enforcement action pertaining thereto, including, but
not limited to, the revocation of certification. The authori-
zation shall be by rule of the Department of Environmen-
tal Regulation, shall be limited to the maintenance,
repair, or replacement of existing structures, and shall
be conditioned upon compliance by the Department of
Transportation with specific guidelines or requirements
which are set forth in the formal acceptance and
deemed necessary by the Department of Environmental
Regulation to assure future compliance with this chapter
and applicable department rules. The failure of the
Department of Transportation to comply with any provi-
sion of the written acceptance shall constitute grounds
for its revocation by the Department of Environmental
Regulation.
(b) The provisions of chapter 120 shall be accorded
any person when substantial interests will be affected
by an activity proposed to be conducted by the Depart-
ment of Transportation pursuant to its certification and
the acceptance of the Department of Environmental
Regulation. II a proceeding is conducted pursuant to s.
120.57, the Department of Environmental Regulation
may intervene as a party. Should a hearing officer c? the
Division of Administrative Hearings of the Department of
Management Services submit a recommended order
pursuant to s. 120.57, the Department of Environmental
Regulation shall issue a final department order adopting,
rejecting, or modifying the recommended order pursu-
ant to such action
1182
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S. 403.061 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 403.061
(15) Consult with any petsen proposing io construct,
install, or otherwise acquire a pollution control device or
system concerning the elficacy of such device or sys-
tem, or the pollution problem which may be related to
the source, device, or system. Nothing in any such con-
sultation shall be construed to relieve any person from
compliance with this act, rules and regulations of the
department, or any other provision of law.
(16) Encourage voluntary cooperation by persons
and affected groups to achieve the purposes of this act.
(17) Encourage local units of government to handle
pollution problems within their respective jurisdictions
on a cooperative basis and provide technical and con-
sultative assistance therefor.
(18) Encourage and conduct studies, investigations,
and research relating to pollution and its causes, effects,
prevention, abatement, and control.
(19) Make a continuing study of the effects of the
emission of air contaminants from motor vehicles on the
quality of the outdoor atmosphere of this state and the
several parts thereof and make recommendations to
appropriate public and private bodies with respect
thereto.
(20) Collect and disseminate information and conduct
educational and training programs relating to pollution.
(21) Advise, consult, cooperate, and enter into agree-
ments with other agencies of the state, the Federal Gov-
ernment, other states, interstate agencies, groups, polit-
ical subdivisions, and industries affected by the provi-
sions of this act, rules, or policies of the department.
(22) Adopt, modify, and repeal rules governing the
specifications, construction, and maintenance of indus-
trial reservoirs, dams, and containers which store or
retain industrial wastes of a deleterious nature.
(23) Adopt rules and regulations to ensure that no
detergents are sold in Florida after December 31, 1972,
which are reasonably found to have a harmful or deleteri-
ous effect on human health or on the environment. Any
regulations adopted pursuant to this subsection shall
apply statewide. Subsequent to the promulgation of
such rules and regulations, no county, municipality, or
other local political subdivision shall adopt or enforce
any local ordinance, special law, or local regulation gov-
erning detergents which is less stringent than state lav/
or regulation. Regulations, ordinances, or special acts
adopted by a county or municipality governing deter-
gents shall be subject to approval by the department,
except that regulations, ordinances, or special acts
adopted by any county or municipality with a local pollu-
tion control program approved pursuant to s. 403.182
shall be approved as an element of the local pollution
control program.
(24)(a) Establish a permit system to provide for spoil
site approval, as may be requested and required by
local governmental agencies as defined in s.
403.1822(3), or mosquito control districts as defined in
s. 388.011(5). to facilitate these agencies in providing
spoil sites for the aeposit of spoil from maintenance
dredging of navigation channels, port harbors, turning
basins, and harbor berths, as part of a federal project,
when the agency is acting as sponsor of a contemplated
dredge ana fiii opeiation involving an established navi-
gation channel, harbor, turning basin, or harbor berth. A
spoii sue approval granted to tr,e agency shall oe
granted for a period of 10 to 25 years when such site is
not inconsistent with an adopted local governmental
comprehensive plan and the requirements of this chap-
ter. The department shall periodically review each per-
mit to determine compliance with the terms and condi-
tions of the permit. Such review shall be conducted at
least once every 10 years.
(b) This subsection applies only to those mainte-
nance dredging operations permitted after July 1, 1980,
where the United States Army Corps of Engineers is the
prime dredge and fill agent and the local governmental
agency is acting as sponsor for the operation, and does
not require the redesignation of currently approved spoil
sites under such previous operations. .
(25) Establish and administer a program for the resto-
ration and preservation of bodies of water within the
state. The department shall have the power to acquire
lands, to cooperate with other applicable state or local
agencies to enhance existing public access to such
bodies of water, and to adopt all rules necessary to
accomplish this purpose.
(26)(a) Develop standards and criteria for waters
used for deepwater shipping which standards and
criteria consider existing water quality; appropriate mix-
ing zones and other requirements for maintenance
dredging in previously constructed deepwater naviga-
tion channels, port harbors, turning basins, or harbor
berths; and appropriate mixing zones for disposal of
spoil materia! from dredging and, where necessary,
develop a separate classification for such waters. Such
classification, standards, and criteria shall recognize
that the present dedicated use of these waters is for
deepwater commercial navigation.
(b) The provisions of paragraph (a) apply only to the
port waters, spoil disposal sites, port harbors, navigation
channels, turning basins, and harbor berths used for
deepwater commercial navigation in the ports of Jack-
sonville, Tampa, Port Everglades, Miami, Port Canaveral,
Ft. Pierce, Palm Beach, Port Manatee, Port St. Joe, Pan-
ama City. St. Petersburg. Port Bartow, Florida Power
Corporation's Crystal River Canal, Boca Grande, Green
Cove Springs, and Pensacola.
(27) Establish rules which provide for a special cate-
gory of water bodies within the state, to be referred to
as "Outstanding Florida Waters," which water bodies
shall be worthy of special protection because of their
natural attributes. Nothing in this subsection shall affect
any existing rule of the department.
(28) Perform any other act necessary to control and
prohibit air and water pollution, and to delegate any of
its responsibilities, authority, and powers, other than
rulemaking powers, to any state agency now or hereinaf-
ter established.
(29) Adopt by rule special criteria to protect Class II
shellfish harvesting waters. Rules previously adopted by
the department in 's. 17-4.28(8)(a), Florida Administra-
tive Code, are hereby ratified and determined to be a
valid exercise of delegated legislative authority and shall
remain in effect unless amended by the Environmental
Regulation Commission.
(30) Establish requirements by rule that reasonably
protect the public health and welfare from electric and
1183
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s. 403.061
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
S. 403.0612
magnetic fields associated with existing 230 kV or
greater electrical transmission lines, new 230 kV and
greater electrical transmission lines for which an applica-
tion for certification under the Transmission Line Siting
Act, ss. 403.52-403.5365, is not filed, new or existing
electrical transmission or distribution lines with voltage
less than 230 kV, and substation facilities. Notwithstand-
ing any other provision in this chapter or any other law
of this state or political subdivision thereof, the depart-
ment shall have exclusive jurisdiction in the regulation of
electric and magnetic fields associated with all electrical
transmission and distribution lines and substation facili-
ties. However, nothing herein shall be construed as
superseding or repealing the provisions of s. 403.523(1)
and (10).
(31) Adopt rules necessary to obtain approval from
the United States Environmental Protection Agency to
administer the Federal National Pollution Discharge
Elimination System (NPDES) permitting program in Flor-
ida under ss. 318, 402, and 405 of the Federal Clean
Water Act, Pub. L. No. 92-500, as amended. This author-
ity shall be implemented consistent with the provisions
of part II, which shall be applicable to facilities certified
thereunder. The department shall establish all rules,
standards, and requirements that regulate the dis-
charge of pollutants into waters of the United States as
defined by and in a manner consistent with federal regu-
lations; provided, however, that the department may
adopt a standard that is stricter or more stringent than
one set by the United States Environmental Protection
Agency if approved by the Governor and Cabinet in
accordance with the procedures of s. 403.804(2).
(32) Coordinate the state's stormwater program.
(33) Adopt by rule a state water policy, which shall
provide goals, objectives, and guidance for the develop-
ment and review of programs, rules, and plans relating
to water resources. This state water policy shall be
consistent with the state comprehensive plan and may
include such department rules as are specifically identi-
fied in the policy.
(34) Establish and administer programs providing
appropriate incentives that have the following goals, in
order ol importance:
(a) Preventing and reducing pollution at its source.
(b) Recycling contaminants that have the potential
to pollute.
(c) Treating and neutralizing contaminants that are
difficult lo recycle.
(d) Disposing of contaminants only after other
options have been used to the greatest extent practica-
ble.
The department shall implement such programs in con-
junction with its other powers and duties and shall place
special emphasis on reducing and eliminating contami-
nation that presents a threat to humans, animals or
plants, or to the environment.
History. —s 7. ch 67-436. ss i9 26 35. cr 69-106 s i cr 'i-35 s 2. <:"•
71-36, s 3. ch 72-39 z ,.c^ 72-53 s 1*3 c* 73-333 s 3 cn 74-133 s i cn
77-21. s 13" cr. 77-iD* s 263 cr. 77-U7 s 2 cr 77-359. s cr 76-95 s
2 cr. 76-437. s 73. cm 79-65 s l cr. 79- i30. s 96 cr s '00 a 7f-400
s ' c** 80-66 ss 2 5 cr B'--228 s 5 cr- ,8:-27 s i S2-7U & 2 r' P2 00.
s 66 cr H.i-3'0 s 5 cr h-t 79 s 1 cm t l C> 85j 290 •• 5 cm
•» 5 cr •; W n> bo i5b s 72 cr 88 s 3' vn b'.'-ZVy <. M <:?•
!K"| -\?.\ s ;v. .-!• iU:> lO. r.t. \)P 20J >.);¦ •< 5!» .'»¦ '*2
•Note. - T«M iuf.rttion
'403.0612 Partners for a better Florida through
cooperative efforts for economic development and
environmental quality; advisory council.—
(1) In addition to the declarations contained in s.
403.021, the Legislature recognizes that the environ-
mental quality of the air, water, land, and wildlife of this
state, and the overall quality of life of the people of this
state, can be positively affected by cooperative and
proactive efforts of businesses and industries in Florida.
The Legislature further recognizes that economic mar-
ket-based incentives and disincentives may create pos-
itive environmental quality improvements that are-not
fully being achieved by the current state laws, rules, poli-
cies, and sanctions which have been developed over
time to protect the environment. The Legislature further
recognizes that some environmental protection efforts
may have unintended adverse economic consequences
and that there is a need to consider environmental
impacts in planning economic development strategies
and to consider economic impacts in planning environ-
mental protection strategies.
(2) The Partners for a Better Florida Advisory Coun-
cil is created to provide a means by which state agen-
cies, environmental organizations, and representatives
of business and industry can focus on cooperative
efforts to address environmental quality issues and
related regulatory requirements and economic incen-
tives in order lo provide the highest possible quality of
life for the state's citizens. The council shall be assigned
to the Executive Office of the Governor for administra-
tive and fiscal accounting purposes, but shall otherwise
function independently.
(3) The council shall consist of the following:
(a) Six members appointed by the Governor on or
before August 1, 1992. Such members shall include
three environmental advocates and three representa-
tives of the business and industry community.
(b) Seven members appointed by the Speaker of the
House of Representatives on or before August 1, 1992.
Such members shall include one member of the House
of Representatives, two environmental advocates, one
scientific expert on the environment, and three repre-
sentatives of the business and industry communiiy.
(c) Seven members appointed by the President of
the Senate on or before August 1, 1992. Such members
shall include one Senator, two environmental advocates,
one scientific expert on the environment, and three rep-
resentatives of the business and industry community.
(d) Nonvoting members who shall include: the Sec-
retary of Environmental Regulation or a designee: the
Secretary of Commerce or a designee; the Secretary ol
Community Aflairs or a designee; the Executive Director
of the Department of Natural Resources or a designee;
a representative of the Florida League of Cities: and a
representative of the Florida Association of Counties.
When making appointments pursuant to this subsec-
tion, the Governor, the Speaker of the House of Repre-
sentatives. and the President of the Senate shall make
every elfort to include the following: persons who are
broadly reoresenlaiive of the business and industry
community and who are most often involved with leguia
tory efloiiu to maintain environmental quality. including
1184
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S. 403.0612 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 403.0612
but not limited to, representatives of the agriculture,
chemicals, building and development, forestry, petro-
leum, and phosphate industries; and persons who are
broadly representative of the environmental community
and who are often involved with regulatory efforts to
maintain environmental quality.
(4) The role of the nonvoting members shall be to
receive and provide environmental and economic devel-
opment information relevant to their respective jurisdic-
tions.
(5) Members of the council shall serve without com-
pensation but shall be entitled to per diem and travel
expenses in accordance with s. 112.061.
(6) The council shall meet at the call of its co-
chairpersons or at the request of a majority of its mem-
bers. However, the council shall meet at least twice each
year.
(7) The council shall have the following powers and
duties:
(a) To elect co-chairpersons to represent both the
economic development and the environmental commu-
nities.
(b) To employ necessary staff which shall include a
professional trained in mediation and such other staff as
are necessary to carry out the purposes of this section.
(c) To develop a strategic plan to foster cooperative
efforts and improve relations between state agencies,
the business and industry community, and environmen-
tal organizations.
(d) To review and analyze environmental quality
needs, related regulations, and alternative strategies for
protecting the environment which accommodate sound
economic development, including, but not limited to,
analyses of market-based environmental protection
incentives, one-stop permitting, issue-specific joint
business and environmental interest task forces, and
other innovative approaches. As part of this review and
analysis, the commission shall examine and make rec-
ommendations on the possible use of market-based
environmental programs and management strategies as
they relate to issues including, but not limited to, the fol-
lowing:
1. Private business or industry initiatives and pro-
grams that obviate the need for state agency regulatory
programs, including the identification of new and emerg-
ing technologies to enhance or improve environmental
quality.
2. The linkage of tax exemptions or credits to com-
pliance with environmental programs.
3. The use of tradable pollution permits.
4. Improved solid and hazardous waste manage-
ment through a variety of mechanisms, including, but
nol limited to, voluntary programs such as tradable recy-
cling credits.
5. Reduced solid and hazardous waste generation
through the adoption of voluntary industry goals and
guidelines lor reducing the amount and toxicity of mate-
rials used and products made as part of the manufactur-
ing process.
6. The use ol mediation as an alternative means to
resolve disputes oetween state agencies and business
and industry.
7. Methods to induce pru/ait oevelopment of new
technologies or products to improve existing environ-
mental conditions or reduce potential negative impacts.
(e) By January 1, 1993, to recommend to the Gover-
nor and the Legislature a streamlined environmental per-
mitting process which:
1. Eliminates duplication in regard to environmental
permitting and land use review.
2. Ensures expeditious review of the various per-
mits required for a project.
3. Provides for a one-stop permitting system where
feasible and appropriate.
4. Ensures consistency with local government com-
prehensive plans without lengthening the project
approval process.
5. Addresses the need for permit applicants and
the public to be able to identify all environmental permits
needed to proceed with an economic development proj-
ect, obtain all necessary forms, and have access to addi-
tional technical assistance.
6. Reflects any changes needed in legislation,
rules, or policies to implement the streamlined environ-
mental permitting process. To assist in developing this
process, the council shall review and analyze other
issues relevant to permit streamlining, including, but not
limited to. the following:
a. Ongoing agency efforts to reorganize and dele-
gate permitting authority.
b. The relationship between the Department of
Environmental Regulation and the water management
districts for the purposes of increasing the accountabil-
ity of the districts and the department and designing a
single water resource permit covering dredge and fill,
stormwater, management and storage of surface water,
and any other related water resource activities and func-
tions, and recommending whether the authority to issue
such a permit should be assigned exclusively to the
department or to the districts.
c. The feasibility of improving or expanding the sev-
eral siting acts in statute, including the Florida Industrial
Siting Act, ss. 288.501-288.518.
d Recommendations of other study groups and
commissions, such as the Environmental Efficiency
Study Commission and the Environmental Land Man-
agement Study Committee.
(f) By January 1,1994, to recommend to the Legisla-
ture a strategic plan for cooperative efforts for economic
development and environmental quality. The recommen-
dations shall include:
1. Recommended legislative changes, if necessary,
to foster such cooperation and to address the specific
issues identified in paragraphs (d) and (e).
2. Recommended changes in state agencies' poli-
cies to enhance the efforts of business and industry to
make positive contributions to the state economy and
environmental protection.
3. Any proposed means to achieve environmental
protection through other techniques which reduce the
need for regulation.
4. Voluntary guidelines that could be adopted, and
actions that could be taken, by business and industry to
improve environmental protection.
1185
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s. 403.0612
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.087
5. Recommended voluntary actions that could be
taken by the environmental regulation community to fos-
ter economic development and opportunity.
6. Any additional recommendations deemed appro-
priate by the council which will encourage or enhance
cooperative efforts between the interests of business
and industry and the interest of environmental protec-
tion to improve the quality of life in Florida both economi-
cally and environmentally.
7. Education and communication programs to
expand public awareness of the benefits of cooperative
efforts to promote environmental protection and eco-
nomic development.
History. —ss 13. 15. cn 92-277.
'Note.—Repealed effective October 1. 1994. by s 15. cfl 92-277
403.0852 Small Business Stationary Air Pollution
Source Technical and Environmental Compliance
Assistance Program.—
(1) The department shall establish a technical and
environmental compliance assistance program for small
business stationary air pollution sources. The program
shall assist such stationary sources in determining appli-
cable permit requirements; collect and disseminate
information concerning compliance methods and tech-
nologies; and provide information regarding pollution
prevention and accidental release detection and pre-
vention, including alternative technologies, process
changes, products, and methods of operation that help
reduce air pollution.
(2) The department shall designate a person with
suitable technical qualifications as the head of the pro-
gram. The program office shall serve as ombudsman for
small business stationary air pollution sources in the
implementation of s. 403.0872 by the department. The
program office shall serve as the staff for the Small Busi-
ness Air Pollution Compliance Advisory Council and
shall assist in the development and dissemination of the
reports and opinions of the council.
(3) The department shall establish, by rule, a notice
procedure to ensure that small business stationary air
pollution sources receive notice of their rights under s.
403.0872 in such a way as to provide reasonable and
adequate time for such sources to evaluate compliance
methods and any relevant or applicable proposed or
final rules or standards of the department.
(4) Any stationary source that does not meet the
criteria of s. 403.031 (20)(c), (d). and (e) may petition the
department for inclusion in the program as a small busi-
ness stationary air pollution source, if the source does
not emit more than 100 tons per yea' of all regulated pol-
lutants. The department shall establish, by rule, notice
procedures to assure an opportunity lor public comment
on any petition filed under this subsection.
History. —s 13. ch 92-132
403.087 Permits; general issuance; denial; revoca-
tion; prohibition; penalty.—
(1) No stationary installation which will reasonably
be expected to be a source of air or water pollution shall
be operated, maintained, constructed, expanded, or
modified without an appropriate and currently valid Der-
mii issued by the department, unless exempted by
deportment rule. In no event shall a Dermi! for a water
pollution source be valid for more than 5 years, and in
no event may an operation permit issued after July 1,
1992, for a major source of air pollution have a fixed term
of more than 5 years. However, upon expiration, a new
permit may be issued by the department in accordance
with this act and the rules and regulations of the depart-
ment. The renewal of a permit issued under s. 403.088
for the operation of a sanitary sewage system may be
issued for periods of up to 10 years, provided:
(a) The system is not currently operating under a
temporary operating permit and does not have any
enforcement action pending against it by the Environ-
mental Protection Agency or the department;
(b) The department has reviewed the operation
reports required under department rule, which reports
include the levels of oxygen, suspended solids and per-
centage of removal, and phosphorus and acidity/
alkalinity present in the discharge, and the department
is satisfied that the report is accurate;
(c) The department has conducted, within the 12
months prior to issuance of the 10-year permit, an
inspection of the system and verified, in writing to the
operator of the system, that the system is not exceeding
capacity and is in proper working order; and
(d) The system has met all water quality standards
within the last 2 years prior to the issuance of the 10-
year permit, except for violations not attributable to the
sanitary sewage system or its operator.
The operator of a system operating under a 10-year per-
mit shall report to the department, in writing, within 48
hours, of the existence of any malfunctioning equipment
or other conditions which would, if allowed to continue,
cause water quality standards to be violated or would
violate any other department rule or standard. The
report should state any corrective measures that have
been taken or a plan for correcting the malfunctioning
equipment or other conditions so that the department
can determine whether the corrective measures or plan
are appropriate.
(2) The department shall adopt, amend, or repeal
rules, regulations, and standards for the issuance,
denial, modification, and revocation of permits.
(3) The department shall issue permits on such con-
ditions as are necessary to effect the intent and pur-
poses of this section.
(4) The department shall issue permits to construct,
operate, maintain, expand, or modify an installation
which may reasonably be expected to be a source of
pollution only when it determines that the installalion is
provided or equipped with pollution control facilities that
will abate or prevent pollution to the degree that will
comply with the standards or rules adopted by the
department, except as provided in s. 403,088 or s.
403.0872.
(5)(a) The department shall require a processing fee
in an amount sufficient, to the greatest extern possible,
to cover the costs of reviewing and acting upon any
application for a permit or request for site-specific alter-
native criteria or for an exemption from water quality
criteria and to cover the costs of surveillance and other
field services and related supoort activities associated
with any permit issued oursuant to tms chanter How
1186
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s. 403.087
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.087
ever, when an application is received without the
required fee, the department shall acknowledge receipt
of the application and shall immediately return the
unprocessed application to the applicant and shall take
no further action until the application is received with the
appropriate fee. The department shall adopt a schedule
of fees by rule, subject to the following limitations:
1. The permit fee for any of the following permits
may not exceed $32,500:
a. Hazardous waste, construction permit.
b. Hazardous waste, operation permit.
c. Hazardous waste, closure permit.
2. The permit fee for a Class I injection well con-
struction permit may not exceed $12,500.
3. The permit fee for any of the following permits
may not exceed $10,000:
a. Solid waste, construction permit.
b. Solid waste, operation permit.
c. Class I injection well, operation permit.
4. The permit fee for any of the following permits
may not exceed $7,500:
a. Air pollution, construction permit.
b. Solid waste, closure permit.
c. Drinking water, construction or operation permit.
d. Domestic waste residuals, construction or opera-
tion permit.
e. Industrial waste, operation permit.
f. Industrial waste, construction permit.
5. The permit fee for any of the following permits
may not exceed $5,000:
a. Domestic waste, operation permit.
b. Domestic waste, construction permit.
6. The permit fee for any of the following permits
may not exceed $4,000:
a. Wetlands resource management—(dredge and
fill), standard form permit.
b. Hazardous waste, research and development
permit.
c. Air pollution, operation permit, for sources not
subject to s. 403.0872.
d. Class III injection well, construction, operation, or
abandonment permits.
7. The permit fee for Class V injection wells, con-
struction, operation, and abandonment permits may not
exceed $750.
8. The permit fee for any of the following permits
may not exceed $500:
a. Domestic waste, collection system permits.
b. Wetlands resource management—(dredge and
fill and mangrove alterations), short permit form.
c. Drinking water, distribution system permit.
9. The permit fee for stormwater operation permits
may not exceed $100.
10. The general permit fees for permits that require
certification by a registered professional engineer or pro-
fessional geologist may not exceed $500. The general
permit fee lor other permit types may not exceed $100.
11 For applicants for a temporary operation permit,
the department shall add a surcharge of 20 percent over
the fees for the operation permit for the activity to be
permitted.
12. The fee for a permit issued pursuant to s. 403.816
is $5,000, and the fee for any modification of such permit
requested by the applicant is $1,000.
(b) If substantially similar air pollution sources are to
be constructed or modified at the same facility, the
applicant may submit a single application and permit fee
for construction or modification of the sources at that
facility. If substantially similar air pollution sources
located at the same facility do not constitute a major
source of air pollution subject to permitting under s.
403.0872, the applicant may submit a single application
and permit fee for the operation of those sources. The
department may develop, by rule, criteria for determin-
ing what constitutes substantially similar sources.
(c) The fee schedule shall be adopted by rule. The
amount of each fee shall be reasonably related to the
costs of permitting, field services, and related support
activities tor the particular permitting activity taking into
consideration consistently applied standard cost-
accounting principles and economies of scale. If the
department requires, by rule or by permit condition, that
a permit be renewed more frequently than once every
5 years, the permit fee shall be prorated based upon the
permit fee schedule in effect at the time of permit
renewal.
(d) Nothing in this subsection authorizes the con-
struction or expansion of any stationary installation
except to the extent specifically authorized by depart-
ment permit or rule.
(e) For all domestic waste collection system permits
and drinking water distribution system permits, the
department shall adopt a fee schedule, by rule, based
on a sliding scale relating to pipe diameter, length of the
proposed main, or equivalent dwelling units, or any com-
bination of these factors. The department shall require
a separate permit application and fee for each noncon-
tiguous project within the system.
(6) A permit tssued pursuant to this section shall not
become a vested right in the permittee. The department
may revoke any permit issued by it if it finds that the per-
mitholder.
(a) Has submitted false or inaccurate information in
his application;
(b) Has violated law, department orders, rules, or
regulations, or permit conditions;
(c) Has failed to submit operational reports or other
information required by department rule or regulation; or
(d) Has refused lawful inspection under s. 403.091.
(7) The department shall not issue a permit to any
person for the purpose of engaging in, or attempting to
engage in, any activity relating to the extraction of solid
minerals not exempt pursuant to chapter 211 within any
state or national park or state or national forest when the
activity will degrade the ambient quality of the waters of
the state or the ambient air within those areas. In the
event the Federal Government prohibits the mining or
leasing of solid minerals on federal park or forest lands,
then, and to the extent of such prohibition, this act shall
not apply to those federal lands.
(8) A violation of this section is punishable as pro-
vided in this chapter.
History. — s 1 cn 71-203 s a cn 7J-133. s u cn 76-96 s i-i. cn 82-27. s
l cn 82-M s ' cn 82-12? s 59 cn 83-218. s 24 cn 8J-33S s M ct 86-186.
s 2. cn 87-125 s i7.cn So-393 s 29 cr, 91-305 s 2 cn 92-132
1187
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s. 403.0872
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.0872
403.0872 Air pollution operation permits for major
sources; annual operation license fee.—Each major
source of air pollution, including electrical power plants
certified under s. 403.511, must obtain from the depart-
ment an air-operation permit under this section, which
is the only department air-operation permit required for
such source. Permits to operate major sources of air pol-
lution must be issued in accordance with the following
procedures and in accordance with chapter 120; how-
ever, to the extent that chapter 120 is inconsistent with
the provisions of this section, the procedures contained
in this section prevail:
(1) An application for a permit to operate a major
source of air pollution must be submitted in accordance
with rules of the department governing permit applica-
tions. The department shall adopt rules defining the tim-
ing, content, and distribution of an application for a per-
mit under this section. A permit application processing
fee is not required. The department may issue a permit
to operate a major source of air pollution only when it has
reasonable assurance that the source applies pollution
control technology, including fuel or raw material selec-
tion, necessary to enable it to comply with the standards
or rules adopted by the department or an approved
compliance plan for that source. If two or more major air
pollution sources that belong to the same Major Group
as described in the Standard Industrial Classification
Manual, 1987, are operated at a single site, the owner
may elect to receive a single operation permit covering
all such sources at the site.
(a) An application for a permit under this section is
timely and complete if it is submitted in accordance with
department rules governing the timing of applications
and substantially addresses the information specified in
completeness criteria determined by department rule in
accordance with applicable regulations of the United
States Environmental Protection Agency governing the
contents of applications for permits under 42 U.S.C. s.
7661 b(d). Unless the department requests additional
information or otherwise notifies the applicant of incom-
pleteness within 60 days after receipt of an application,
the application is complete..
(b) Any permitted air pollution source that submits
a timely and complete application for a permit under this
part is entitled to operate in compliance with its existing
air permit pending the conclusion ol proceedings asso-
ciated with its application.
(c) The department may request additional informa-
tion necessary to process a permit application subse-
quent to a determination of completeness m accordance
with s. 403.0876(1).
(2) Within 90 days after the date on which the
department receives all information necessary to proc-
ess an application for a permit under this section, the
department shall issue a draft permit or a determination
that the requested permit should be denied. A draft per-
mit must contain all conditions that the department finds
necessary to ensure that operation of the source will be
in compliance with applicable law. rules, or compliance
plans. If the department proposes to deny the permit
application, the department's determination must pro-
vide an explanation lor the denial. The department shall
furnish a copy of each draft permit to the United States
Environmental Protection Agency and to any contiguous
state whose air quality could be affected or which is
within 50 miles of the source pursuant to procedures
established by department rule.
(3) The department shall require the applicant to
publish notice of any draft permit in accordance with
department rule. The department must accept public
comment with respect to a draft permit for 30 days fol-
lowing the date ol notice publication. The notice must be
published in a newspaper of general circulation as
defined in s. 403.5115(2). If comments received during
this period result in a change in the draft permit, the
department must issue a revised draft permit, which
shall be supplied to the United States Environmental
Protection Agency and to any contiguous state whose
air quality could be affected or which is within 50 miles
of the source.
(4) Any person whose substantial interests are
affected by a draft permit or the denial determination
may request an administrative hearing under s. 120.57,
in accordance with the rules of the department. A draft
permit must notify the permit applicant of any review
process applicable to the permit decision of the depart-
ment. The department shall prescribe, by rule, a suitable
standard format for such notification.
(5) If a hearing is not requested under s. 120.57. the
draft permit will become the department's proposed
permit but does not become final until the time for fed-
eral review of the proposed permit has elapsed. The
department shall furnish the United States Environmen-
tal Protection Agency a copy of each proposed permit
and its written response to any comments regarding the
permit submitted by contiguous states. 11 no objection
to the proposed permit is made by the United States
Environmental Protection Agency within the time estab-
lished by 42 U.S.C. s. 766ld, the proposed permit must
become final no later than 55 days after the date on
which the proposed permit was mailed to the United
States Environmental Protection Agency. The depart-
ment shall issue a conformed copy of the final permit as
soon as is practicable thereafter.
(6) If a draft permit is the subject of an administrative
hearing under s. 120.57, a proposed permit containing
changes, if any, resulting from the hearing process, after
the conclusion of the hearing, must be issued and a
copy must be provided to the applicant, to the United
States Environmental Protection Agency, and to any
contiguous state whose air quality could be affected or
which is within 50 miles of the source, as soon as practi-
cable. The proposed permit shall not become final until
the time for review, by the United States Environmental
Protection Agency, of the proposed permit has elapsed.
If comments from a contiguous state regarding the per-
mit are received, the department must provide a written
response to the applicant, to the state, and to the United
States Environmental Protection Agency. If no objection
to the proposed permit is made by the United S;ates
Environmental Protection Agency within the time estab-
lished by 42 U.S.C. s. 7661d, the proposed permit must
become final no later than 55 days alter the date cn
which the proposed permit was mailed to the United
States Environmental Protection Agency. The depart-
1188
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s. 403.0872 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 403.0872
ment shall issue a conformed copy ol the final permit as
soon as is practicable thereafter.
(7) If the administrator of the United States Environ-
mental Protection Agency timely objects to a proposed
permit under this section, the department must not
issue a final permit until the objection is resolved or with-
drawn. A copy of the written objection of the administra-
tor must be provided to the permit applicant as soon as
practicable after the department receives it. Within 45
days after the date on which the department serves the
applicant with a copy of an objection by the United
States Environmental Protection Agency to a proposed
permit, the applicant may file a written reply to the objec-
tion. The written reply must include any supporting
materials that the applicant desires to include in the rec-
ord relevant to the issues raised by the objection. The
written reply must be considered by the department in
issuing a final permit to resolve the objection of the
administrator. A final permit issued by the department
to resolve an objection of the administrator is not subject
to s. 120.57.
(8) A final permit issued under this section is subject
to judicial review under s. 120.68. If judicial review of a
final permit results in material changes to the conditions
of the permit, the department shall notify the United
States Environmental Protection Agency and any state
that is contiguous to this state whose air quality could
be affected or that is within 50 miles of the source, pur-
suant to rules of the department.
(9) If the department is notified by the administrator
of the United States Environmental Protection Agency
that cause exists to terminate, modify, or revoke and
reissue a permit under this section, the department
shall, within 90 days after receipt of such notification, fur-
nish to the administrator and the permittee a proposed
determination of termination, modification, or revocation
and reissuance as appropriate. Within 45 days after the
date on which the department notifies the permittee that
the United States Environmental Protection Agency pro-
poses action regarding its permit, the permittee may file
a written response concerning the proposed action. The
written response must include any supporting materials
that the permittee desires to include in the record rele-
vant to the issues raised by the proposed action. The
permittee's written response must be considered by the
department in formulating its proposed determination
under this subsection.
(10) Commencing in 1993, each major source of air
pollution permitted to operate in this state must pay
between January 15 and March 1 of each year, upon
written notice from the department, an annual operation
license fee in an amount determined by department rule.
(a) The annual fee must be assessed based upon
the source's previous year's emissions and must be cal-
culated by multiplying the applicable annual operation
license fee factor times the tons of each regulated air
pollutant (except carbon monoxide) allowed to be emit-
ted per hour by specific condition of the source's most
recent construclion or operation permit, times the
annual hours of operation allowed by permit condition;
provided, however, that.
1. For 1993 and 1994, the license fee factor is $10.
For 1995. the license fee factor is S25. In succeeding
years, the license fee factor is $25 or anotner amount
determined by department rule which ensures that the
revenue provided by each year's operation license fees
is sufficient to cover all reasonable direct and indirect
costs of the major stationary source air-operation permit
program established by this section. The license fee fac-
tor may be increased beyond $25 only if the secretary
of the department affirmatively finds that a shortage of
revenue for support of the major stationary source air-
operation permit program will occur in the absence of a
fee factor adjustment. The annual license fee factor may
never exceed $35. The department shall retain a nation-
ally recognized accounting firm to conduct a study to
determine the reasonable revenue requirements neces-
sary to support the development and administration of
the major source air-operation permit program as pre-
scribed in paragraph (b). The results of that determina-
tion must be considered in assessing whether a $25-
per-ton fee factor is sufficient to adequately fund the
major source air-operation permit program. The results
of the study must be presented to the Governor, the
President of the Senate, the Speaker of the House of
Representatives, and the Public Service Commission,
including the Public Counsel's Office, by no later than
October 31, 1994.
2. For any source that operates for fewer hours dur-
ing the calendar year than allowed under its permit, the
annual fee calculation must be based upon actual hours
of operation rather than allowable hours if the owner or
operator of the source documents the source's actual
hours of operation tor the calendar year. For any source
that has an emissions limit that is dependent upon the
type of fuel burned, the annual fee calculation must be
based on the emissions limit applicable during actual
hours of operation.
3. For any source whose allowable emission limita-
tion is specified by permit per units of material input or
heat input or product output, the applicable input or pro-
duction amount may be used to calculate the allowable
emissions if the owner or operator of the source docu-
ments the actual input or production amount. If the input
or production amount is not documented, the maximum
allowable input or production amount specified in the
permit must be used to calculate the allowable emis-
sions.
4. For any new source that does not receive its first
operation permit until after the beginning of a calendar
year, the annual fee for the year must be reduced pro
rata to reflect the period during which the source was
not allowed to operate.
5. For any source that emits less of any regulated
air pollutant than allowed by permit condition, the annual
fee calculation for such pollutant must be based upon
actual emissions rather than allowable emissions if the
owner or operator documents the source's actual emis-
sions by means of data from a department-approved
certified continuous emissions monitor or from an emis-
sions monitoring method which has been approved by
the United States Environmental Protection Agency
under the regulations implementing 42 U.S.C s. 7651 et
seq. or from a method approved by the department for
purposes of this section.
1189
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s. 403.0872
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.0873
6. The amount of each regulated air pollutant in
excess ol 4,000 tons per year allowed to be emitted by
any source, or group of sources belonging to the same
Major Group as described in the Standard Industrial
Classification Manual. 1987, may not be included in the
calculation of the fee. Any source, or group of sources,
which does not emit any regulated air pollutant in excess
of 4,000 tons per year, is allowed a one-time credit not
to exceed 25 percent of the first annual licensing fee for
the prorated portion of existing air-operation permit
application fees remaining upon commencement of the
annual licensing fees.
7. If the department has not received the fee by
February 15 of the calendar year, the permittee must be
sent a written warning of the consequences for failing
to pay the fee by March 1. If the department has not
received the fee by March 1 of the calendar year, the
department shall impose, in addition to the fee, a pen-
alty of 50 percent of the amount of the fee, plus interest
on such amount computed in accordance with s.
220.807, The department may revoke any major air pollu-
tion source operation permit if it finds that the permit
holder has failed to timely pay any required annual oper-
ation license fee, penalty, or interest.
8. During the years 1993 through 1999, inclusive, no
fee shall be required to be paid under this section with
respect to emissions from any unit which is an affected
unit under 42 U.S.C. s. 7651c.
(b) Annual operation license fees collected by the
department must be sufficient to cover all reasonable
direct and indirect costs required to develop and admin-
ister the major stationary source air-operation permit
program, which shall consist of the following elements
to the extent that they are reasonably related to the reg-
ulation of major stationary air pollution sources, in
accordance with United States Environmental Protec-
tion Agency regulations and guidelines:
1. Reviewing and acting upon any application for
such a permit.
2. Implementing and enforcing the terms and con-
ditions of any such permit, excluding court costs or
other costs associated with any enforcement action.
3. Emissions and ambient monitoring.
4. Preparing generally applicable regulations or
guidance.
5. Modeling, analyses, and demonstrations.
6. Preparing inventories and tracking emissions.
7. Implementing the Small Business Stationary
Source Technical and Environmental Compliance
Assistance Program.
8. The study conducted under subparagraph (a) 1.
and any audits conducted under paragraph (c).
(c) An audit ol the major stationary source air-
operation permit program must be conducted 2 years
after the United States Environmental Protection
Agency has given full approval of the program, or by the
end of 1996, whichever comes later, to ascertain
whether the annual operation license lees collected by
he department are used solely to support any reason-
ble direct and indirect costs as listed in paragraph (b).
A program audi! must be performed biennially after the
first audu
(11) Permits issued under this section must allow
changes within a permitted facility without requiring a
permit revision, if the changes are not physical changes
in, or changes in the method of operation of, the facility
which increase the amount of any air pollutant emitted
by the facility or which result in the emission of any air
pollutant not previously emitted by the facility, and the
changes do not exceed the emissions allowable under
the permit (whether expressed therein as a rate of emis-
sions or in terms of total emissions), provided that the
facility provides the administrator and the department
with 30 days' written, advance notice of the proposed
changes. The department shall adopt rules implement-
ing this flexibility requirement.
(12) In order to ensure statewide consistency in the
implementation of the national Acid Deposition Control
Allowance Transfer System, a department district office
or local pollution control program may not issue or
administer permits under this section for any electrical
power plant or any source that participates in the allow-
ance transfer system.
(13) In order to ensure statewide consistency in the
permitting of major sources, a local pollution control pro-
gram may not issue permits under this section for
sources that belong to Major Group 26, Paper and Allied
Products: for sources that belong to Major Group 28,
Chemicals and Allied Products; or for sources that
belong to Industry Number 2061, Cane Sugar, Except
Refining, as defined in the Standard Industrial Classifica-
tion Manual, 1987. This subsection expires July 1, 1997.
(14) Any permittee that operates in compliance with
an air-operation permit issued under this section is
deemed to be in compliance with applicable permit
requirements of the Clean Air Act and all implementing
state, local, and federal air pollution control regulations
and all provisions of this chapter, relating to air pollution,
and regulations adopted thereunder.
(15) The department shall adopt a rule to provide for
a procedure for notice to the appropriate approved local
pollution control programs, pursuant to s. 403.182, of
any draft permits, amended draft permits, or final per-
mits issued by the department.
History. —s 3. en 92-132
403.0873 Florida Air-Operation License Fee
Account.—The "Florida Air-Operation License Fee
Account" is established as a nonlapsing account within
the Department of Environmental Regulation's Air Pollu-
tion Control Trust Fund. All license fees paid pursuant
to s. 403.0872(10) shall be deposited in such account
and must be used solely by the department and
approved local programs under the advice and consent
of the Legislature to pay the direct and indirect costs
required to develop and administer the major stationary
source air-operation permit program. Any approved
local pollution control program that accepts funds from
the department as reimbursement for services it per-
forms in the implementation of the maior source sir-
operation permit program is prohibited from collecting
additional fees attributable to such services f'om any
source permitted under s. 403.0872.
History. - s S 92- '32
1190
-------
s. 403.0876
403.0876 Permits; processing.—
(1) Within 30 days alter receipt of an application lor
a permit under this chapter, the department shall review
the application and shall request submittal ol all addi-
tional information the department is permitted by law to
require. If the applicant believes any departmental
request for additional information is not authorized by
law or departmental rule, the applicant may request a
hearing pursuant to s. 120.57. Within 30 days alter
receipt of such additional information, the department
shall review it and may request only that information
needed to clarify such additional information or to
answer new questions raised by or directly related to
such additional information. If the applicant believes the
request of the department for such additional informa-
tion is not authorized by law or departmental rule, the
department, at the applicant's request, shall proceed to
process the permit application.
(2)(a) A permit shall be approved or denied within 90
days after receipt of the original application, the last item
of timely requested additional material, or the appli-
cant's written request to begin processing the permit
application.
(b) The failure of the department to approve or deny
a permit for an underground injection well, or an opera-
tion permit for a major source of air pollution, within the
90-day time period shall not result in the automatic
approval or denial of the permit and shall not prevent the
inclusion of specific permit conditions which are neces-
sary to ensure compliance with applicable statutes and
rules. If the department fails to approve or deny such a
permit within the 90-day period, the applicant may peti-
tion for a writ of mandamus to compel the department
to act consistently with applicable regulatory require-
ments.
(3)(a) The department shall establish a special unit
for permit coordination and processing to provide
expeditious processing of department permits which
the district offices are unable to process expeditiously
and to provide accelerated processing of certain per-
mits or renewals for economic and operating stability.
The ability of the department to process applications
pursuant to this subsection in a more timely manner
than allowed by subsections (1) and (2) is dependent
upon the timely exchange of information between the
applicant and the department and the intervention of
outside parties as allowed by law. An applicant may
request the processing of its permit application by the
special unit if the application is from an area of high
unemployment or low per capita income, is from a busi-
ness or industry that is the primary employer within an
area's labor market, or is in an industry with respect to
which the complexities involved in the review of the
application require special skills uniquely available in the
headquarters office. The department may require the
applicant to waive the 90-day time limitation for depart-
ment issuance or denial of the permit once for a period
not to exceed 90 days. The department may require a
special fee to cover the direct cost of processing special
applications in addition to normal permit fees and costs.
The special fee may not exceed $10,000 per permit
required. Applications for renewal permits, but not appli-
cations for initial permits, required for facilities pursuant
to the Electrical Power Plant Siting Act or the Transmis-
sion Line Siting Act may be processed under this sub-
section. Personnel staffing the special unit shall have
lengthy experience in permit processing.
(b) At the applicant's discretion and notwithstand
ing any other provisions of chapter 120, a permit pro-
cessed under this subsection is subject to an expedited
administratrve hearing pursuant to s. 120.57. To request
such hearing, the applicant must notify the Division of
Administrative Hearings, the department, and all other
parties in writing within 15 days after his receipt of notice
of assignment of a hearing officer from the division. The
division shall conduct a hearing within 45 days after
receipt of the request for such expedited hearing.
History.—s 2. ch 80-66. s. 2S. civ 8<-338 s 13. cfi 06-186 s u. ch 88-393.
s 6. ch 92-132
403.088S Establishment of federally approved
state National PoHutant Discharge Elimination System
(NPDES) program.—
(1) The Legislature finds and declares that it is in the
public interest to promote effective and efficient regula-
tion of the discharge of pollutants into waters of the
state and eliminate duplication of permitting programs
by the United States Environmental Protection Agency
under s. 402 of the Clean Water Act, Pub. L. No. 92-500,
as amended, 33 U.S.C s. 1251 et seq., and the depart-
ment under this chapter. It is further found that state
implementation of the federal NPDES program, with suf-
ficient time for legislative revision prior to the implemen-
tation of the state NPDES permit program by the depart-
ment, would promote the orderly establishment of a
state administered NPDES program. It is the specific
intent of the Legislature that permit fees charged by the
department for processing of federally approved NPDES
permits be adequate to cover the entire cost to the
department of program management, for reviewing and
acting upon any permit application, and to cover the
cost of surveillance and other field services of any per-
mits issued pursuant to this section. Further, it is legisla-
tive intent, upon a finding by the department determin-
ing such additional costs for administering an NPDES
program, to set permit fees by legislative act during the
1989 regular legislative session.
(2) To this end, the department shall apply no later
than January 1, 1993, to the United States Environmen-
tal Protection Agency, pursuant to s. 402 of the Federal
Clean Water Act, Pub. L. No. 92-500, as amended, for
approval to operate an NPDES program. The depart-
ment shall not process applications or issue or deny
NPDES permits under this program until after July 1.
1993.
(3) The department is empowered to establish a
state NPDES program in accordance with s. 402 of the
Clean Water Act, as amended. The department shall
have the power and authority to operate the NPDES per-
mitting program in accordance with s. 402(b) of the
Clean Water Act, as amended, and 40 C.F.R. part 123.
The state NPDES permit shall be the sole permit issued
by the state under this chapter regulating the discharge
of pollutants or wastes into surface waters within the
state for discharges covered by the EPA approved state
NPDES program. This legislative grant of authority is
1191
-------
s. 403.0885
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.1834
intended to be sufficient to enable the department to
qualify for delegation of the federal NPDES program to
the state and operate such program in accordance with
federal law.
(4) An application for an NPDES permit and other
approvals from the state relating to the permitted activ-
ity shall be granted or denied by the department within
the time allowed for permit review under 40 C.F.R. part
123, subpart C. Other than for stormwater discharge
permitting, the decision on issuance or denial of such
permit may not be delegated to another agency or gov-
ernmental authority. The department is specifically
exempted from the time limitations provided in ss.
120.60 and 403.0876. However, if the department fails
to render a permitting decision within the time allowed
by 40 C.F.R. part 123, subpart C, or a memorandum of
agreement executed by the department and the United
States Environmental Protection Agency, whichever is
shorter, the applicant may apply for an order from the
circuit court requiring the department to render a deci-
sion within a specified time.
(5) The department shall respond, in writing, to any
written comments on a pending application for a state
NPDES permit which the department receives from the
Executive Director, or his designee, of the Game and
Fresh Water Fish Commission or the Department of Nat-
ural Resources, on matters within the commenting agen-
cy's jurisdiction. The department's response shall not
constitute agency action for purposes of s. 120.57 or
other provisions of chapter 120.
History.—s 23. 86-393 s 16. ch 92- '33
"•403.101 Classification of operators and of air and
water contaminant sources; reporting requirements.—
(1) The department, by rule, may establish the levels
of licensed operator required for air and waler contami-
nant sources, may classify air and water contaminant
sources, which sources in its judgment may cause or
contribute to air or water pollution, according to levels
and types of emissions and other characteristics which
relate to air or water pollution, and may require reporting
for any such class or classes. Classifications made pur-
suant to this section may be made for application to the
state as a whole or to any designated area of the state,
and shall be made with special reference to physical
effects on property and effects on health, economic,
social, and recreational factors.
(2) Any person operating, or responsible for the
operation of, air or water contaminant sources of any
class for which the rules of the department require
reporting shall make reports containing information as
may be required concerning location, size, and height of
contaminant outlets, processes employed, fuels used,
and the nature and time period or duration of emissions,
and such other information as is relevant to air and water
pollution and available or reasonably capable of being
assembled.
(3) The department may adopt rules and minimum
standards to effectuate the provisions of this section
and to ensure efficient, hygienic water and wastewater
treatment operations in this state.
(4) For purposes of this section, the term "operator-
means any person, including the owner, who is m onsite
charge of the actual operation, supervision, and mainte-
nance of a water treatment plant or wastewater treat-
ment plant and includes the person in onsite charge of
a shift or period of operation during any part of the day.
History— s 11.ch 67--36 ss 26. 35. ch 69-I06.S 18. ch 77-337. s 16i.ch
79-400 s 3. ch 80-66. s 2. cn 81-318. ss I. 2. 3. cn B2-" s 17 ch 86-186.
s 32. ch 91-305. s 1.ch 92-75
'Note.—Expired Ociober i. '992. pu'Suani 10 s 3 ch 82-44
403.1659 Florida Groundwater Protection Task
Force.—[Repealed by s. 27, ch. 92-173 ]
403.1834 State bonds to finance or refinance facili-
ties; exemption from taxation.—
(1) The issuance of state bonds to finance or refi-
nance the construction of water supply and distribution
facilities, stormwater control and treatment facilities, and
air and water pollution control and abatement and solid
waste disposal facilities, payable primarily from the
pledged revenues provided for by s. 14, Art. VII of the
State Constitution or from such pledged revenues and
the full faith and credit of any county, municipality, dis-
trict, authority, or any agency thereof, and pledging the
full faith and credit of the state as additional security, is
authorized, subject and pursuant to the provisions of s.
14, Art. VII of the State Constitution, the provisions ol the
Slate Bond Act. ss. 215.57-215.83, as amended, and
the provisions of this section.
(2) The State Board of Administration is designated
as the state fiscal agency to make the determinations
required by s. 14, Art. VII of the State Constitution in con-
nection with the issuance of such bonds.
(3) The amount of the state bonds to be issued shall
be determined by the Division of Bond Finance of the
State Board of Administration. However, the total princi-
pal amount issued shall not exceed S300 million in any
state fiscal year. This limitation does not apply to bonds
issued to refinance outstanding bonds that were issued
pursuant to this section in a previous fiscal year.
(4) The facilities to be financed or refinanced with
the proceeds of such state bonds shall be determined
and approved by the Department of Environmental Reg-
ulation and may be constructed, acquired, maintained,
and operated by any county, municipality, district, or
authority, or any agency thereof, or by the department.
(5) The Department of Environmental Regulation
and the Division of Bond Finance of the State Board ol
Administration are hereby authorized to enter into
lease-purchase agreements between sucn depart-
ments or to enter into lease-purchase agreements or
loan agreements between either of such departments
and any county, municipality, district, or authority, or any
agency thereof, for such periods and under such other
terms and conditions as may be mutually agreed upon
by the parties thereto in order to carry out the purposes
of s. 1d, Art. VII of the State Constitution and this section.
(6) The Department of Environmental Regulation
shall have power to fix, establish, and collect tees, rent-
als, or other charges for the use or benefit of said facili-
ties or may delegate such power to any county, munici-
pality, district, authority, or any agency thereof under
such terms and conditions and for such periods as may
be mutually agreed upon.
1192
-------
s. 403.1834
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.1835
(7) It is found arid declared that said facilities will
constitute a public governmental purpose necessary (or
the health and welfare of all the inhabitants of the state,
and none of said facilities or said state bonds or the
interest thereon shall ever be subject to taxation by the
state or any political subdivision or agency thereof. How-
ever, a leasehold interest in property of the state or the
facilities thereon mav not be exempted Irom ad valorem
taxation when a nongovernmental lessee uses such
property for the operation of a multipurpose hazardous
waste treatment facility. The exemption granted by this
subsection shall not be applicable to any tax imposed
by chapter 220 on interest, income, or profits on debt
obligations owned by corporations.
(8) As used in this section, "water supply and distri-
bution facilities" means a waterworks system as defined
in s. 159.02(9) which is constructed, owned, or operated
by a county, municipality, water management district
created by chapter 373, or regional water supply author-
ity created pursuant to chapter 373, or a water facility of
an authority created by chapter 76-441, Laws of Florida,
as amended by chapter 80-546, Laws of Florida.
Hiilory —ss 1. 2. 3 4. S. 6. 7. en 70-270. s 1. ch 70-439 s 2. ch 71-137. s
4.ch 73-256. s. 14 ch 73-327; s. 78. ch 79-65. s. 1. ch. 01-21. s 61. ch 83-218.
s 19. ch. 86-186. s l.ch 87-203. s 82. ch 86-130. s 303. ch 92-279.s 55. ch
92-326
403.1835 Sewage treatment facilities revolving
loan program.—
(1) The purpose of this section is to assist in imple-
menting the legislative declaration of public policy as
contained in s. 403.021 by establishing a loan program
to accelerate construction of sewage treatment facilities
by local governmental agencies and to assist local gov-
ernmental agencies.
(2) For the purposes of this section, the term.
(a) "Local governmental agencies" means local gov-
ernmental agencies as defined in s. 403.1822(3).
(b) "Sewage treatment facilities" means all facilities
necessary, including land, for the collection, treatment,
or disposal of domestic wastewater.
(c) "Bonds" means state bonds, certificates, or other
obligations of indebtedness issued by the Division of
Bond Finance of the State Board of Administration pur-
suant to this section and the State Bond Act.
(3) The department is authorized to make loans to
local governmental agencies to assist them in planning,
designing, and constructing sewage treatment facilities.
The department is authorized to use the funds lo pro-
vide loan guarantees, to purchase loan insurance, and
to refinance local debt through the issue of new loans
for projects approved by the department. Local govern-
mental agencies are authorized to borrow funds made
available pursuant to this section and may pledge any
revenue available to them to repay any funds borrowed.
The department shall administer loans to local govern-
mental agencies so that at least 15 percent of each
annual allocation for loans is reserved for small commu-
nities.
(4) The term of loans made pursuant to this section
shall not exceed 30 years. The interest rate on loans
shall be no greater than that paid on the last bonds sold
pursuant to s 14. Art. VII, State Constitution.
(5)(a) The department is autnonzed to make rules
necessary' to carry out the purpose of this section,
including rules to administer the state revolving fund
authorized pursuant to the Federal Water Pollution Con-
trol Act. as amended.
(b) The department shall prepare an annual report
detailing the amount loaned, interest earned, and loans
outstanding at the end of each fiscal year.
(6) Prior to approval of a loan, the local government
shall:
(a) Provide a repayment schedule.
(b) Submit plans and specifications for sewage
treatment facilities.
(c) Provide assurance that records will be kept using
accepted government accounting standards and that
the department, the Auditor General, or their agents will
have access to all records pertaining to the loan.
(d) Provide assurance that the facility will be prop-
erly operated and maintained.
(e) Document that the revenues generated will be
sufficient to ensure that the facilities will be self-
supporting.
(f) Provide assurance that annual financial audit
reports, and a separate project audit prepared by an
independent certified public accountant upon project
completion, will be submitted to the department
(7) Eligible projects shall be given priority according
to the extent each project is intended to remove, miti-
gate, or prevent adverse effects on surface or ground
water quality and public health.
(8) If a local governmental agency becomes delin-
quent on its loan, the department shall so certify to the
Comptroller who shall forward the amount delinquent to
the department from any unobligated funds due to the
local governmental agency under any revenue sharing
or tax sharing fund established by the state, except as
otherwise provided by the State Constitution. Certifica-
tion of delinquency shall not limit the department from
pursuing other remedies available for default on a loan.
The department may impose a penalty for delinquent
loan payments in the amount of 6 percent of the amount
due in addition to charging the cost to handle and proc-
ess the debt. Penalty interest shall accrue on any
amount due and payable beginning on the 30th day fol-
lowing the date upon which payment is due.
(9) A nonlapsing trust fund with revolving loan provi-
sions to be known as the "Sewage Treatment Revolving
Loan Fund" is hereby established in the State Treasury
to be used as a revolving fund by the department to
carry out the purpose of this section. Any funds therein
which are not needed on an immediate basis for loans
may be invested pursuant to s. 215.49. The cost of
administering the program shall, to the extent possible,
be paid from federal funds and, when federal funds
become no longer available, from reasonable service
fees that may be imposed upon loans. Grants awarded
by the Federal Government to fund revolving loans for
local governmental agencies" sewage treatment facili-
ties shall be deposited into the fund. All moneys avail-
able in the fund are hereby designated to carry out the
purpose of this section. The principal and interest of all
1193
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s. 403.1835
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.507
loans repaid and investment earnings shall be depos-
ited into this fund.
History. —s i.cn 72-723. s 79.cn 79-65. s 20. ch 86-186. s 37. ch 89-279.
s 34. cn 91-305. s 30J. ch 92-279, s 55. ch 92-326
PART I!
ELECTRICAL POWER PLANT SITING
403 507 Preliminary statements of issues, reports,
and studies.
403.509 Final disposition of application.
403.516 Modification of certification.
403.5175 Existing electrical power plant site certifica-
tion.
403.518 Fees; disposition.
403.507 Preliminary statements of issues, reports,
and studies.—
(1) Each affected agency identified in paragraph
(2)(a) shall submit a preliminary statement of issues to
the department and the applicant no later than 60 days
after the distribution of the complete application. The
failure to raise an issue in this statement shall not pre-
clude the issue from being raised in the agency's report.
(2)(a) The following agencies shall prepare reports
as provided below and shall submit them to the depart-
ment and the applicant within 150 days after distribution
of the complete application:
1. The Department of Community Affairs shall pre-
pare a report containing recommendations which
address the impact upon the public of the proposed
electrical power plant, based on the degree to which the
electrical power plant is consistent with the applicable
portions of the state comprehensive plan and other such
matters within its jurisdiction. The Department of Com-
munity Affairs may also comment on the consistency of
the proposed electrical power plant with applicable
comprehensive regional policy plans or local compre-
hensive plans and land development regulations.
2. The Public Service Commission shall prepare a
report as to the present and future need for the electrical
generating capacity to be supplied by the proposed
electrical power plant. The report shall include the com-
mission's determination pursuant to s. 403.519 and may
include the commission's comments with respect to any
other matters within its jurisdiction.
3. The water management district shall prepare a
report as to matters within its jurisdiction.
4. Each local government in whose jurisdiction the
proposed electrical power plant is to be located shall
prepare a report as to the consistency of the proposed
electrical power plant with all applicable local ordi-
nances, regulations, standards, or criteria that apply to
the proposed electrical power plant, including adopted
local comprehensive plans, land development regula-
tions, and any applicable local environmental regula-
tions adopted pursuant to s. 403.182 or by other means,
5. The Department of Natural Resources shall pre-
pare a report as to matters within its jurisdiction.
6. The Game and Fresh Water Fish Commission
shall prepare a report as to matters within its jurisdiction.
7. The regional planning council shall prepare a
report containing recommendations that address the
impact upon the public of the proposed electrical power
plant, based on the degree to which the electrical power
plant is consistent with the applicable provisions of the
comprehensive regional policy plan adopted pursuant to
chapter 186 and other matters within its jurisdiction.
8. Any other agency, if requested by the depart-
ment, shall also perform studies or prepare reports as
to matters within that agency's jurisdiction which may
potentially be affected by the proposed electrical power
plant.
(b) As needed to verify or supplement the studies
made by the applicant in support of the application, it
shall be the duty of the department to conduct, or con-
tract for, studies of the proposed electrical power plant
and site, including, but not limited to, the following,
which shall be completed no later than 210 days after
the complete application is filed with the department.
1. Cooling system requirements.
2. Construction and operational safeguards.
3. Proximity to transportation systems.
4. Soil and foundation conditions.
5. Impact on suitable present and projected water
supplies for this and other competing uses.
6. Impact on surrounding land uses.
7. Accessibility to transmission corridors.
8. Environmental impacts.
9. Requirements applicable under any federally del-
egated or approved permit program.
(c) Each report described in paragraphs (a) and (b)
shall contain all information on variances, exemptions,
exceptions, or other relief which may be required by s.
403.511(2) and any proposed conditions ol certification
on matters within the jurisdiction of such agency. For
each condition proposed by an agency in its report, the
agency shall list the specific statute, rule, or ordinance
which authorizes the proposed condition.
(d) The agencies shall initiate the activities required
by this section no later than 30 days after the complete
application is distributed. The agencies shall keep the
applicant and the department informed as to the prog-
ress of the studies and any issues raised thereby.
(3) The department shall prepare a written analysis,
which shall be filed with the designated hearing officer
and served on all parties no later than 240 days after the
complete application is filed with the department, but no
later than 60 days prior to the hearing, and which shall
include:
(a) A statement indicating whether the proposed
electrical power plant and proposed ultimate site capac-
ity will be in compliance with the rules of the depart-
ment.
(b) Copies of the studies and reports required by
this section and s. 403.519.
(c) The comments received by the department Irom
any other agency or person.
(d) The recommendation of the department as to the
disposition of the aoplication. ol variances, exemptions,
exceptions, or other relief identitied by any party, and of
any proposed conditions of certification which the
department believes should be imposed.
1194
-------
s. 403.507
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.516
(e) The recommendation of the department regard-
ing the issuance ol any license required pursuant to a
federally delegated or approved permit program.
(f) Copies of the department's preliminary determi-
nation for any federally required air-construction permit
and draft permit for major source air operation, which
must also be provided to the United States Environmen-
tal Protection Agency for review within 5 days after issu-
ance of the written analysis. These documents must
contain all conditions that the department intends to
impose to ensure compliance with applicable provisions
of the state implementation plan.
(4) Except when good cause is shown, the failure of
any agency to submit a preliminary statement of issues
or a report, or to submit its preliminary statement of
issues or report within the allowed time, shall not be
grounds for the alteration of any time limitation in this
act. Neither the failure to submit a preliminary statement
of issues or a report nor the inadequacy of the prelimi-
nary statement of issues or report shall be grounds to
deny or condition certification.
History.—s 1.ch 73-33: s 5. ch 76-76; s. 133, ch. 79-190. s. 8. Ch. 81-131. s
33. ch 01-169: s 36. Ch 83-55. s 25. ch 86-186: s i0.cn 90-331 :s 7.ch 92-132
403.509 Final disposition of application.—
(1) Within 60 days after receipt of the designated
hearing officer's recommended order, the board shall
act upon the application by written order, approving cer-
tification or denying the issuance of a certificate, in
accordance with the terms of this act, and stating the
reasons for issuance or denial. If the certificate is denied,
the board shall set forth in writing the action the appli-
cant would have to take to secure the board's approval
of the application.
(2) The issues that may be raised in any hearing
before the board shall be limited to those matters raised
in the certification proceeding before the hearing officer
or raised in the recommended order. All parties, or their
representatives, or persons who appear before the
board shall be subject to the provisions of s. 120.66.
(3) Within 30 days after issuance of the certification,
the department shall issue and forward to the United
States Environmental Protection Agency a proposed
major source air-operation permit and must issue or
deny any other license required pursuant to any feder-
ally delegated or approved permit program. The depart-
ment's decision to issue or deny the license and its
action on the proposed major source air-operation per-
mit shall be based upon the record and recommended
order of the certification hearing. Any final major source
air-operation permit must be issued in accordance with
the provisions of s. 403.0872. Unless the federally dele-
gated or approved permit program provides otherwise,
licenses issued by the department under this subsec-
tion shall be effective for the term of the certification
issued by the board. If renewal of any license issued by
the department pursuant to a federally delegated or
approved permit program is required, such renewal shall
not affect the certification issued by the board, except
as necessary to resolve inconsistencies pursuant to s.
403.516(1 )(a)
(4) In regard to the properties and works of any
agency which is a party to the certification hearing, the
board shall have ;r.e aulhoniy to decide issues relating
to the use, the connection thereto, or the crossing
thereof, for the electrical power plant and site and to
direct any such agency to execute, within 30 days after
the entry of certification, the necessary license or ease-
ment for such use. connection, or crossing, subject only
to the conditions set forth in such certification.
(5) Except for the issuance of any major source air-
operation permit, the issuance or denial of the certifica-
tion by the board and the issuance or denial of any
related department license required pursuant to any fed-
erally delegated or approved permit program shall be
the final administrative action required as to that applica-
tion.
(6) All certified electrical power plants must apply
for and obtain a major source air-operation permit pur-
suant to s. 403.0872. Major source air-operation permit
applications for certified electrical power plants must be
submitted pursuant to a schedule developed by the
department.
History.—s l.ch. 73-33. s 7. ch 76-76. s. 141. ch 77-104. s. 27. ch. 86-186.
s 12. ct> 90-33V s 8. c* 92-132
403.516 Modification of certification.—
(1) A certification may be modified after issuance in
any one of the following ways:
(a) The board may delegate to the department the
authority to modify specific conditions in the certifica-
tion. The department may modify specific conditions of
a site certification which are inconsistent with the terms
of any final air pollution operation permit for the certified
electrical power plant issued by the United States Envi-
ronmental Protection Agency under the terms of 42
U.S.C. s. 7661d.
(b) The department may modify the terms and con-
ditions of the certification if no party to the certification
hearing objects in writing to such modification within 45
days after notice by mail to such party's last address of
record, and if no other person whose substantial inter-
ests will be affected by the modification objects in writ-
ing within 30 days after issuance of public notice. If
objections are raised, the applicant may file a petition for
modification pursuant to paragraph (c).
(c) A petition for modification may be filed by the
applicant or the department setting forth:
1. The proposed modification,
2. The factual reasons asserted for the modifica-
tion, and
3. The anticipated effects of the proposed modifi-
cation on the applicant, the public, and the environment.
The petition for modification shall be filed with the
department and the Division of Administrative Hearings.
(d) As required by s. 403.511(5).
(2) Petitions filed pursuant to paragraph (1)(c) shall
be disposed of in the same manner as an application,
but with time periods established by the hearing officer
commensurate with the significance of the modification
requested.
(3) Any agreement or modification under this section
must be in accordance with the terms of this act. No
modification to a certification shall be granted that con-
stitutes a variance from standards or regulations of the
department applicable under any federally delegated or
1195
-------
s. 403.516
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.518
approved permit program, except as expressly allowed
in such program.
History.—s 13 ch 76-76. s. 10. eft 81-131. s 30. en 86-186.S 21.ch 90-331.
s 9. ch 92-13?
403.5175 Existing electrical power plant site certi-
fication.—
(1) An electric utility that owns or operates an exist-
ing electrical power plant as defined in s. 403.503(12)
may apply for certification of an existing power plant and
its site in order to obtain all agency licenses necessary
to assure compliance with federal or state environmental
laws and regulation using the centrally coordinated,
one-stop licensing process established by this part. An
application for site certification under this section must
be in the form prescribed by department rule. Applica-
tions must be reviewed and processed in accordance
with ss. 403.5064-403.5115, except that a determination
of need by the Public Service Commission is not
required.
(2) An application for certification under this section
must include:
(a) A description of the site and existing power plant
installations;
(b) A description of all proposed changes or alter-
ations to the site or electrical power plant, including all
new associated facilities that are the subject of the appli-
cation;
(c) A description of the environmental and other
impacts caused by the existing utilization of the site and
operation of the electrical power plant that is the subject
of the application, and of the environmental and other
benefits, if any. to be realized as a result of the proposed
changes or alterations if certification is approved and
such other information as is necessary for the reviewing
agencies to evaluate the proposed changes and the
expected impacts;
(d) The justification for the proposed changes or
alterations;
(e) Copies of all existing permits, licenses, and com-
pliance plans authorizing utilization of the site or opera-
tion of the electrical power plant that is the subject of the
application.
(3) The land use hearing requirements ol s.
403.508(1) and (2) do not apply to an application under
this section if the applicant does not propose to expand
the boundaries of the existing site. If the applicant pro-
poses to expand the boundaries o! the existing site to
accommodate portions of the plant or associated facili-
ties. a land use hearing must be held as specified in s.
403.508(1) and (2); provided, however, that the sole
issue for determination through the land use hearing is
whether the proposed site expansion is consistent and
in compliance with the existing land use plans and zon-
ing ordinances.
(4) In considering whether an application submitted
under this section should be approved in whole,
approved with appropriate conditions, or denied, the
board shall consider whether, and to the extent to which
the proposed changes to the electrical power plant and
its continued operation under certification will.
(a) Comply with applicable nonprocedural require-
ments of agencies;
(b) Result in environmental or other benefits com-
pared to current utilization of the site and operations of
the electrical power plant if the proposed changes or
alterations are undertaken;
(c) Minimize, through the use of reasonable and
available methods, the adverse effects on human
health, the environment, and the ecology of the land and
its wildlife and the ecology of state waters and their
aquatic life; and
(d) Serve and protect the broad interests of the pub-
lic.
(5) An applicant's failure to receive approval for cer-
tification of an existing site or an electrical power plant
under this section is without prejudice to continued
operation of the electrical power plant or site under
existing agency licenses.
History.—s i0.cn 92-132
403.518 Fees; disposition.—
(1) The department shall charge the applicant the
following fees, as appropriate, which shall be paid into
the Operating Trust Fund:
(a) A fee for a notice of intent pursuant to 's.
403.5065. in the amount of $2,500, to be submitted to
the department at the time of filing of a notice of intent.
The notice-of-intent fee shall be used and disbursed in
the same manner as the application tee.
(b) An application fee, which shall not exceed
$150,000. The fee shall be fixed by rule on a sliding scale
related to the size, type, ultimate site capacity, increase
in generating capacity proposed by the application, or
the number and size of local governments in whose juris-
diction the electrical power plant is located.
1. Sixty percent of the fee shall go to the depart-
ment to cover any costs associated with reviewing and
acting upon the application, to cover any field services
associated with monitoring construction and operation
of the facility, and to cover the costs of the public
notices published by the department.
2. Upon written request with proper itemized
accounting within 90 days after final agency action by
the board or withdrawal of the application, the depart-
ment shall reimburse the Department of Community
Affairs, the Department of Natural Resources, the Game
and Fresh Water Fish Commission, and any water man-
agement district created pursuant to chapter 373.
regional planning council, and local government in the
jurisdiction of which the proposed electrical power plant
is to be located, and any other agency from which the
department requests special studies pursuant to s.
403.507(2)(a)8. Such reimbursement shall be authorized
for the preparation of any studies required of the agen-
cies by this act, and for agency travel and per diem to
attend any hearing held pursuant to this act. and for
local governments to participate in the proceedings. In
the event the amount available for allocation is insuffi-
cient to provide for complete reimbursement to the
agencies, reimbursement shall be on a prorated basis.
.3. If any sums are remaining, the department shall
relam them for its use in the same manner as is othei-
wise authorized by this act: provided, however, that if
the certification application is withdrawn, the temaming
sums shall be refunded to the applicant within 90 days
1196
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s. 403.518
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.703
after withdrawal.
(c) A certification modification fee, which shall not
exceed $15,000. The fee shall be submitted to the
department with a formal petition for modification to the
department pursuant to s. 403.516. This fee shall be
established, disbursed, and processed in the same
manner as the application fee in paragraph (b).
(d) A supplemental application fee, not to exceed
$50,000, to cover all reasonable expenses and costs of
the review, processing, and proceedings of a supple-
mental application. This fee shall be established, dis-
bursed, and processed in the same manner as the certi-
fication application fee in paragraph (b).
(e) An existing site certification application fee, not
to exceed $150,000, to cover all reasonable costs and
expenses of the review processing and proceedings for
certification of an existing power plant site under s.
403.5175. This fee must be established, disbursed, and
processed in the same manner as the certification appli-
cation fee in paragraph (b).
(2) Effective upon the date commercial operation
begins, the operator of an electrical power plant certified
under this part is required to pay to the department an
annual operation license fee as specified in s.
403.0872(10) to be deposited in the Florida Air-
Operation License Fee Account.
History.—s 23 en 90-33'. s ti. ch 92-132
'Note.—The ciieo section contains no reference to a fee tor a notice ol intern
PART IV
RESOURCE RECOVERY AND MANAGEMENT
403.703 Definitions.
403.709 Solid Waste Management Trust Fund; alloca-
tion of waste tire fee moneys; waste tire
site management.
403.712 Revenue bonds.
403.714 Duties of state agencies.
403.7145 Capitol recycling demonstration area.
403.717 Waste tire and lead-acid battery require-
ments.
403.719 Waste tire grants.
403.7197 Advance disposal fee program.
403.74 Management of hazardous materials by gov-
ernmental agencies.
403.703 Definitions.—As used in this act, unless
the context clearly indicates otherwise, the term.
(1) "Department" means the Department of Environ-
mental Regulation or any successor agency performing
a like function.
(2) "County." or any like term, means a political sub-
division of the state established pursuant to s. 1, Art. VIII
of the State Constitution and when s. 403.706(20)
applies, means a special district or other entity.
(3) "Municipality," or any like term, means a munici-
pality created pursuant to general or special law author-
ized or recognized pursuant to s. 2 or s. 6, Art. VIII of the
State Constitution and when s. 403.706(20) applies,
means a special district or other entity.
(4) "Person" means any and all persons, natural or
artificial, including any individual, firm, or association;
any municipal or private corporation organized or exist-
ing under the laws of this state or any other state; any
county of this slate; and any governmental agency of
this state or the Federal Government.
(5) "Recyclable material" means those materials
which are capable of being recycled and which would
otherwise be processed or disposed of as solid waste.
(6) "Recycling" means any process by which solid
waste, or materials which would otherwise become solid
waste, are collected, separated, or processed and
reused or returned to use in the form of raw materials or
products.
(7) "Recovered materials" means those materials
which have known recycling potential, can be feasibly
recycled, and have been diverted or removed from the
solid waste stream for sale, use, or reuse, by separation,
collection, or processing.
(8) "Solid waste management" means the process
by which solid waste is collected, transported, stored,
separated, processed, or disposed of in any other way.
according to an orderly, purposeful, and planned pro-
gram.
(9) "Resource recovery" means the process of recov-
ering materials or energy from solid waste, excluding
those materials or solid waste under control of the
Nuclear Regulatory Commission.
(10) "Solid waste management facility" means any
solid waste disposal area, volume reduction plant, trans-
fer station, or other facility, the purpose of which is
resource recovery or the disposal, recycling, process-
ing, or storage of solid waste. The term does not include
facilities which use or ship recovered materials unless
such facilities are managing solid waste.
(11) "Solid waste disposal facility" means any solid
waste management facility which is the final resting
place for solid waste, including landfills and incineration
facilities that produce ash from the process of incinerat-
ing municipal solid waste.
(12) "Resource recovery equipment" means equip-
ment or machinery exclusively and integrally used in the
actual process of recovering material or energy
resources from solid waste.
(13) "Solid waste" includes garbage, refuse, yard
trash, clean debris, white goods, special waste, ashes,
sludge, or other discarded material, including solid, liq-
uid, semisolid, or contained gaseous material resulting
from domestic, industrial, commercial, mining, agricul-
tural, or governmental operations.
(14) "Volume reduction plant" includes' incinerators,
pulverizers, compactors, shredding and baling plants,
composting plants, and other plants which accept and
process solid waste for recycling or disposal.
(15) "Yard trash" means vegetative matter resulting
from landscaping maintenance and land clearing opera-
tions.
(16) "Transfer station" means a site the primary pur-
pose of which is to store or hold solid waste for transport
to a processing or disposal facility.
(17) "Construction and demolition debris" means
materials generally considered to be not water soluble
and nonhazardous in nature, including, but not limited
to. steel, glass, brick, concrete, asphalt roofing material,
pipe, gypsum watlboard. and lumber, from the construe-
1197
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s. 403.703
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
S. 403.703
tion or destruction of a structure as part of a construc-
tion or demolition project, and including rocks, soils, tree
remains, trees, and other vegetative matter which nor-
mally results from land clearing or land development
operations for a construction project. Mixing of construc-
tion and demolition debris with other types of solid
waste, including material from a construction or demoli-
tion site which is not from the actual construction or
destruction of a structure, will cause it to be classified
as other than construction and demolition debris.
(18) "Class I solid waste disposal area" means a dis-
posal facility which receives an average of 20 tons or
more per day, if scales are available, or 50 cubic yards
or more per day of solid waste, as measured in place
after covering, and which receives an initial cover daity.
(19) "Class II solid waste disposal area" means a dis-
posal facility which receives an average of less than 50
cubic yards per day of solid waste, as measured in place
after covering, and which receives an initial cover at
least once every 4 days.
(20) "Closure" means the cessation of operation of a
solid waste management facility and the act of securing
such facility so that it will pose no significant threat to
human health or the environment.
(21) "Disposal" means the discharge, deposit, injec-
tion, dumping, spilling, leaking, or placing of any solid
waste or hazardous waste into or upon any land or water
so that such solid waste or hazardous waste or any con-
stituent thereof may enter other lands or be emitted into
the air or discharged into any waters, including ground-
waters, or otherwise enter the environment.
(22) "Generation" means the act or process of produc-
ing solid or hazardous waste.
(23) "Hazardous waste" means solid waste, or a com-
bination of solid wastes, which, because of its quantity,
concentration, or physical, chemical, or infectious char-
acteristics. may cause, or significantly contribute to, an
increase in mortality or an increase in serious irreversible
or incapacitating reversible illness or may pose a sub-
stantial present or potential hazard to human health or
the environment when improperly transported, disposed
of, stored, treated, or otherwise managed. The term
does not include human remains that are disposed of by
persons licensed under chapter 470.
(24) "Hazardous waste facility" means any building,
site, structure, or equipment at or by which hazardous
waste is disposed of, stored, or treated.
(25) "Hazardous waste management" means the sys-
tematic control of the collection, source separation, stor-
age, transportation, processing, treatment, recovery,
recycling, and disposal of hazardous wastes.
(26) "Manifest" means the recordkeeping system
used for identifying the concentration, quantity, compo-
sition, origin, routing, and destination of hazardous
waste during its transportation from the point of genera-
tion to the point of disposal, storage, or treatment.
(27) "Operation," with respect to any solid waste man-
agement facility, means the disposal, storage, or pro-
cessing of solid waste at and by the facility.
(28) "Storage" means the containment or holding of a
hazardous waste, either on a temporary basis or for a
period of years, in such a manner as not to constitute
disposal of such hazardous waste.
(29) "Transport" means the movement of hazardous
waste from the point of generation or point of entry into
the state to any offsite intermediate points and to the
point of offsite ultimate disposal, storage, treatment, or
exit from the state.
(30) "Treatment," when used in connection with haz-
ardous waste, means any method, technique, or proc-
ess. including neutralization, designed to change the
physical, chemical, or biological character or composi-
tion of any hazardous waste so as to neutralize it or ren-
der it nonhazardous, sale for transport, amenable to
recovery, amenable to storage or disposal, or reduced
in volume or concentration. The term includes any activ-
ity or processing designed to change the physical form
or chemical composition of hazardous waste so as to
render it nonhazardous.
(31) "Hazardous substance" means any substance
which is defined as a hazardous substance in the United
States Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980, 94 Stat. 2767.
(32) "Guarantor" means any person, other than the
owner or operator, who provides evidence of financial
responsibility for an owner or operator under this act.
(33) "Land disposal" means any placement of hazard-
ous waste in or on the land and includes, but is not lim-
ited to, placement in a landfill, surface impoundment,
waste pile, injection well, land treatment facility, salt bed
formation, salt dome formation, or underground mine or
cave, or placement in a concrete vault or bunker
intended for disposal purposes.
(34) "Special wastes" means solid wastes that can
require special handling and management, including,
but not limited to, white goods, whole tires, used oii,
mattresses, furniture, lead-acid batteries, and biological
wastes.
(35) "Clean debris" means any solid waste which is
virtually inert and which is not a pollution threat to
groundwater or surface waters and is not a fire hazard
and which is likely to retain its physical and chemical
structure under expected conditions of disposal or use.
The term includes uncontaminated concrete, including
embedded pipe or steel, brick, glass, ceramics, and
other wastes designated by the department.
(36) "Processing" means any technique designed to
change the physical, chemical, or biological character or
composition of any solid waste so as to render it safe for
transport, amenable to recovery, storage or recycling, or
safe for disposal, or reduced in volume or concentration.
(37) "Sludge" includes the accumulated solids, resi-
dues, and precipitates generated as a result of waste
treatment or processing, including wastewater treat-
ment, water supply treatment, or operation of an air pol-
lution control facility, and mixed liquids and solids
pumped from septic tanks, grease traps, privies, or simi-
lar waste disposal appurtenances.
(38) "White goods" includes inoperative and dis-
carded refrigerators, ranges, water heaters, ireezers,
and other similar domestic and commercial large appli-
ances.
(39) "Biohazardous waste" means any solid waste or
liquid waste which may present a threat of infection to
humans. The term includes, but is not limited to. nonliq-
uid human tissue and body parts; laboratory and veteri-
1198
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s. 403.703 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 403.712
nary waste which contain human-disease-causmg
agents; used disposable sharps: human blood, and
human blood products and body fluids; and other mate-
rials which in the opinion ol the Department ol Health
and Rehabilitative Services represent a significant risk
of infection to persons outside the generating facility.
The term does not include human remains that are dis-
posed of by persons licensed under chapter 470.
(40) "Biohazardous waste generator" means a facility
or person that produces or generates biohazardous
waste. The term includes, but is not limited to. hospitals,
skilled nursing or convalescent hospitals, intermediate
care facilities, clinics, dialysis clinics, dental offices,
health maintenance organizations, surgical clinics, medi-
cal buildings, physicians' offices, laboratories, veterinary
clinics, and funeral homes.
(41) "Biological waste" means solid waste tnat causes
or has the capability of causing disease or infection and
includes, but is not limited to, biohazardous waste, dis-
eased or dead animals, and other wastes capable of
transmitting pathogens to humans or animals. The term
does not include human remains that are disposed of by
persons licensed under chapter 470.
History.—s l.ch 74-342. s 2. ch 78-329. s. 1. ch 78-387. s 84. ch 79-65: s
4. ch 80-302. s 1. ch. 81-45: s 267. ch. 81-259. s. 31. ch. 83-310. s. 33. ch. 84-338:
s 31. ch. 66-166. s. 3. ch. 86-130. s 67. cn 90-331: s. 2. ch 92-104.
403.709 Solid Waste Management Trust Fund; allo-
cation of waste tire fee moneys; waste tire site man-
agement.—
(1) There is created the Solid Waste Management
Trust Fund, to be administered by the Department of
Environmental Regulation for the purposes of:
(a) Funding solid waste activities of the department,
such as providing technical assistance to local govern-
ments, performing solid waste regulatory and enforce-
ment functions, preparing solid waste documents, and
implementing solid waste education programs;
(b) Making grants and awards to local governments
as provided in this act;
(c) Providing funding for demonstration projects as
provided by this act; and
(d) Providing funding for research by state universi-
ties and independent nonprofit colleges and universities
within the state which are accredited by the Southern
Association of Colleges and Schools as provided by this
act.
(2) Moneys allocated to the fund from waste tire fees
shall be accounted for separately within the fund and
shall be used in the following manner:
(a) Up to 2 percent of the account may be used to
pay department costs for administering these funds and
programs.
(b) Up to 3 percent of the account may be used to
provide funding for research and demonstration projects
relating to solving solid waste problems resulting from
waste tires. For fiscal year 1992-1993, $400,000 shall be
allocated to the Department of Agriculture and Con-
sumer Services for research on mosquitoes and their
control as related to waste tires.
(c) Up to 40 percent of the account may be used to
provide funds for removal of tires from an illegal waste
tire site according to priorities established by law or
department rule.
(d) To provide grants to counties to accomplish the
purposes set forth in s. 403.719. If, in any one fiscal year,
less than 45 percent of the account is used for such
grants, any unused funds may be used by the depart-
ment for the purposes set forth in paragraph (c).
(e) At least 10 percent of the fund shall be allocated
as additional grants to counties for the specific purpose
of abating and providing mosquito control relating to
waste tire sites, other tire piles, and other waste debris
sites in the county identified by local mosquito control
agencies as mosquito breeding areas. No county shall
be entitled to such additional funds unless the county
has a mosquito control program in the county. A county
may transfer such funds to a mosquito control program
located in the county. Each eligible county shall receive
a minimum of $15,000 pursuant to this paragraph. Any
remaining funds under this paragraph shall be distrib-
uted to counties on the basis of population.
(3) The department shall recover to the use of the
fund from the site owner or the person responsible for
the accumulation of tires at the site, jointly and severally,
all sums expended from the fund pursuant to this sec-
tion to manage tires at an illegal waste tire site, except
that the department may decline to pursue such recov-
ery if it finds the amount involved too small or the likeli-
hood of recovery too uncertain. If a court determines
that the owner is unable or unwilling to comply with the
rules adopted pursuant to this subsection, the court
may authorize the department to take possession and
control of the waste tire site in order to protect the
health, safety, and welfare of the community and the
environment.
(4) The department may impose a lien on the real
property on which the waste tire site is located and the
waste tires equal to the estimated cost to bring the tire
site into compliance, including attorney's fees and court
costs. Any property owner which has such a lien
imposed may release his property from any lien claimed
under this subsection by filing with the clerk of the cir-
cuit court a cash or surety bond, payable to the depart-
ment in the amount of the estimated cost of bringing the
tire site into compliance with department rules, includ-
ing attorney's fees and court costs, or the value of the
property after the abatement action is complete, which-
ever is less.
(5) This section does not limit the use of other reme-
dies available to the department.
History.—s. l.ch. 74-342: s. 17. ch. 88-130. s. 3. ch. 90-332. s. 11. ch 92-290.
403.712 Revenue bonds.—
(1) Revenue bonds payable from funds which result
from the revenues derived from the operation of solid
waste management facilities and from any revenues
which may be pledged under s. 14, Art. VII of the State
Constitution, and s. 403.1834, including, without limiting
the generality of the foregoing, any legally available rev-
enues derived from public or private sources, may be
issued by the Division of Bond Finance of the State
Board of Administration on behalf of the state or any
county or municipality in the manner provided by the
State Bond Act, ss. 215.57 et seq., except as otherwise
provided herein, and the Revenue Bond Act of 1953, as
amended, part I, chapter 159. Such bonds shall be
1199
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s. 403.712
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.7145
issued only to finance the cost of construction or mainte-
nance of solid waste management facilities, which cost
may include the acquisition of real property and ease-
ments therein for such purposes, and the closure of
solid waste landfills.
(2) Upon a determination by the Division of Bond
Finance of the State Board of Administration that a pub-
lic competitive sale is not feasible or that it would not be
desirable to award such revenue bonds solely on the
basis of the lowest net interest cost bid. the Division of
Bond Finance may negotiate the sale of any such reve-
nue bonds after the receipt of one or more proposals,
taking into consideration the lowest total cost and such
other factors as may be deemed appropriate.
History.—s. 1. ch 74-342. s 5. ch 75-54. s 19 cn. 88-130. s 305. ch 92-279.
s 55.ch 92-326
403.714 Duties of state agencies.—
(1) It shall be the duty of each state agency, the judi-
cial branch of state government, and the State Univer-
sity System, by September 1, 1989, to:
(a) Establish a program, in cooperation with the
Department of Environmental Regulation and the
Department of Management Services, for the collection
of all recyclable materials generated in state offices
throughout the state, including, at a minimum, alumi-
num, high-grade office paper, and corrugated paper.
(b) Provide procedures for collecting and storing
recyclable materials, containers for storing matenals,
and contractual or other arrangements with buyers of
the recyclable materials.
(c) Evaluate the amount of recyclable material recy-
cled and make all necessary modifications to said recy-
cling program to ensure that all recyclable materials are
effectively and practicably recycled.
(d) Establish and implement, in cooperation with the
Department of Environmental Regulation and the
Department of Management Services, a solid waste
reduction program for materials used in the course of
agency operations. The program shall be designed and
implemented to achieve the maximum feasible reduc-
tion of solid waste generated as a result of agency oper-
ations.
(2) The Department of Commerce shall assist and
encourage the recycling industry in the state. Assist-
ance and encouragement of the recycling industry shall
include, but is not limited to:
(a) Identifying and analyzing, in cooperation with the
Department of Environmental Regulation, components
of the state's recycling industry and present and poten-
tial markets for recyclable materials in this state, other
states, and foreign countries:
(b) Providing information on the availability and ben-
efits of using recycled materials to businesses and
industries in the state: and
(c) Distributing any material prepared in implement-
ing this section to the public, businesses, industries,
Jocal governments, or other organisations upon request.
By September 1. 1989, and every other year thereafter,
the Department of Commerce shall prepare a report
assessing the recycling industry and recyclable materi-
als markets in the state.
(3) The Department of Agriculture and Consumer
Services shall investigate the potential markets for com-
posted materials and shall submit its findings to the
Department of Environmental Regulation for the waste
registry informational program administered by the
department in order to stimulate absorption of available
composted materials into such markets.
(4) All state agencies, including, but not limited to.
the Department of Transportation, the Department of
Natural Resources, and the Department of Management
Services and local governments, are required to procure
compost products when they can be substituted for.
and cost no more than, regular soil amendment prod-
ucts, provided the compost products meet all applicable
state standards, specifications, and regulations. This
product preference shall apply to, but not be limited to,
the construction of highway projects, road rights-of-
way, highway planting projects, recurvation and ero-
sion control programs, and other projects.
(5)(a) The Department of Education, in cooperation
with the State University System and the Department of
Environmental Regulation, shall develop, distribute, and
encourage the use of guidelines for the collection of
recyclable materials and for solid waste reduction in the
state system of education. At a minimum, the guidelines
shall address solid waste generated in administrative
offices, classrooms, dormitories, and cafeterias. The
guidelines shall be developed by September 1, 1989.
(b) In order to orient students and their families to
the recycling of waste and to enccurage the participa-
tion of schools, communities, and families in recycling
programs, the school board of each school district in the
state shall provide a program of student instruction in
the recycling of waste materials. The instruction shall be
provided at both the elementary and secondary levels
of education.
(c) The Department of Education is directed to
develop, from funds appropriated for environmental edu-
cation, curriculum materials and resource guides for a
recycling awareness program for instruction at the ele-
mentary, middle, and high school levels.
History. — s 2 cn 74-34?, s 85. ch 79-65, s 2\. cn 88-130. s 305. cn 92-279
s 55 cn 92-326
403.7145 Capitol recycling demonstration area.—
The Capitol and the House and Senate office buildings
constitute the Capitol recycling demonstration area. The
Florida House of Representatives, the Florida Senate,
and the Office of the Governor, and each Cabinet officer
who heads a department that occupies office space in
the Capitol, shall, by January 1. 1989, institute a recy-
cling program for their respective offices in the House
and Senate office buildings and the Capitol. Provisions
shall be made to collect and sell wastepaper and empty
aluminum beverage cans generated by employee activi-
ties in these offices. The collection and sale ol such
materials shall be coordinated with Department of Man-
agement Services recycling activities to maximize the
efficiency and economy of this program. The Governor,
the Speaker of the House oi Representatives, the Presi-
dent of the Senate, and the Cabinet officers may autho-
rize the use ol proceeds from recyclable material sales
for employee benefits and other purposes, m order to
1200
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s. 403.7145 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 403.717
provide incentives to their respective employees lor par-
ticipation m the recycling program Such proceeds may
also be used to offset any costs ol the recycling pro-
gram
History, s :.V. i:i> SW ¦ i:«) i; :«V. ch 02-279. s <:n w Xlj
403.717 Waste tire and lead-acid battery require-
ments.—
(1) For purposes of this section and ss. 403.718,
403.7185. and 403.719:
(a) "Department" means the Department of Environ-
mental Regulation.
(b) "Motor vehicle" means an automobile, motorcy-
cle, truck, trailer, semitrailer, truck tractor and semitrailer
combination, or any other vehicle operated in this state,
used to transport persons or property and propelled by
power other than muscular power, but the term does not
include traction engines, road rollers, such vehicles as
run only upon a track, bicycles, mopeds, or farm tractors
and trailers.
(c) "Tire" means a continuous solid or pneumatic rub-
ber covering encircling the wheel of a motor vehicle.
(d) "Waste tire" means a whole tire that is no longer
suitable for its original intended purpose because of
wear, damage, or defect.
(e) "Waste tire collection center" means a site where
used or waste tires are collected from the public prior
to being offered for recycling and where fewer than
1.000 tires are kept on the site on any given day.
(f) "Waste tire processing facility" means a site
where equipment is used to recapture reusable byprod-
ucts from waste tires or to cut, burn, or otherwise alter
waste tires so that they are no longer whole. The term
includes mobile waste tire processing equipment.
(g) "Waste tire site" means a site at which 1,000 or
more whole tires are accumulated outdoors.
(h) "Lead-acid battery" means those lead-acid bat-
teries designed for use in motor vehicles, vessels, and
aircraft, and includes such batteries when sold as a
component part of a motor vehicle, vessel, or aircraft,
but not when sold to recycle components.
(2) The owner or operator of any waste tire site shall,
within 6 months after October 1, 1988. provide the
department with information concerning the site's loca-
tion. size, and the approximate number of waste tires
that are accumulated at the site and shall initiate steps
to comply with subsection (3).
(3)(a) A person may not maintain a waste tire site
unless such site is:
1. An integral part of the person's permitted waste
tire processing facility; or
2. Used for the storage of waste tires prior to pro-
cessing and is located at a permitted solid waste man-
agement facility.
(b) It is unlawful for any person to dispose of waste
tires or processed tires in the state except at a permitted
solid waste management facility. Collection or storage
of waste tires at a permitted waste tire processing facil-
ity or waste tire collection center prior to processing or
use does not constitute disposal, provided that the col-
lection and storage complies with rules established by
the department.
(c) Waste tires may not be deposited in a landfill as
a melnod of ultimate disposal.
(d) A person may not contract with a waste tire col-
lector for the transportation, disposal, or processing of
waste tires unless the collector is registered with the
department or exempt from requirements provided
under this section.
(4) The department shall adopt rules to carry out the
provisions of this section and ss. 403.718 and 403.719.
Such rules shall:
(a) Provide for the administration of a waste tire pro-
cessing facility permit, the fee for which may not exceed
$250 annually:
(b) Provide for the administration or revocation of
waste tire collector registrations and collection center
permits, the fees for which may not exceed $250 annu-
ally:
(c) Set standards for waste tire processing facilities
and associated waste tire sites, waste tire collection
centers, waste tire collectors, and set standards for the
storage of waste tires and processed tires, including
storage indoors:
(d) Establish procedures for administering the waste
tire grants program and issuing grants;
(e) Authorize the final disposal of waste tires at a
permitted solid waste disposal facility provided the tires
have been cut into sufficiently small parts to assure their
proper disposal; and
(f) Allow waste tire material which has been cut into
sufficiently small parts to be used as daily cover material
for a landfill.
(5) A permit is not required for indoor tire storage or
for:
(a) A tire retreading business where fewer than
1,000 waste tires are kept on the business premises;
(b) A business that, in the ordinary course of busi-
ness, removes tires from motor vehicles if fewer than
1,000 of these tires are kept on the business premises;
or
(c) A retail tire-selling business which is serving as
a waste tire collection center if fewer than 1,000 waste
tires are kept on the business premises.
(6)(a) The department shall encourage the voluntary
establishment of waste tire collection centers at retail
tire-selling businesses, waste tire processing facilities,
and solid waste disposal facilities, to be open to the pub-
lic for the deposit of used and waste tires.
(b) The department is authorized to establish an
incentives program for individuals to encourage them to
return their used or waste tires to a waste tire collection
center. The incentives used by the department msy
involve the use of discount or prize coupons, prize draw-
ings, promotional giveaways, or other activities the
department determines will promote collection, reuse,
volume reduction, and proper disposal of used or waste
tires.
(c) The department may contract with a promotion
company to administer the incentives program.
(7) By October 1, 1990, the department shall take
appropriate safety measures or ensure that appropriate
safety measures are underway at each waste tire site
containing 150,000 or more tires to protect the health,
safety, and welfare of the community and the environ-
ment. Such measures shall include, but are not limited
to, breaking the tire piles into a series of smaller piles
1201
-------
s. 403.717
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.7197
with sufficiently wide fire breaks; assuring an adequate
nearby water supply to provide a water source in the
event of fire; requiring an emergency preparedness
manual on-site; and requiring mosquito control. The pur-
chase of services by the department to provide the
safety measures at waste tire sites by October 1, 1990,
shall not be subject to chapter 287.
History.—s H.ch 86-130.S 6. civ B9-17\. s 4. en 90-332.S 120. ch 9I-U2.
5. 12. cn 92-290
403.719 Waste tire grants.—
(1) The department shall, by July 1, 1989, establish
a program to make grants to counties which desire, indi-
vidually or collectively, to:
(a) Construct or operate, or contract for the con-
struction or operation of, a waste tire processing facility
and equipment purchases therefor;
(b) Contract for a waste tire processing facility ser-
vice within or outside the county or state;
(c) Collect and remove or contract for the collection
and removal of waste tires from waste tire piles or other
areas within the county. Removal may include transpor-
tation outside the county, region, or state;
(d) Perform or contract for the performance of
research designed to facilitate waste tire recycling;
(e) Establish waste tire collection centers at solid
waste disposal facilities or waste tire processing facili-
ties;
(f) Provide incentives for establishing privately oper-
ated waste tire collection centers for the public: or
(g) In addition to the use specified in paragraph (c),
abate and provide mosquito control relating to waste tire
sites, other tire piles, and other waste debris sites in the
county identified by local mosquito control agencies as
mosquito breeding areas.
(2) Each county shall be eligible for a pro rata share,
based on population, of the available funds in the waste
tire account. Counties may join together, pooling their
financial resources, when utilizing their grants for the
purposes described in subsection (1).
(3) The department shall provide technical assist-
ance, upon request, to a county or groups of counties
desiring assistance in applying for waste tire grants or
choosing a method of waste tire management which
would be an eligible use of the grant funds.
History. — s 43. ch 88-130: s 13. ch 92-290
'403.7197 Advance disposal fee program.—
(1) The Legislature finds that containers which are
made from plastic, glass, aluminum, plastic coated
paper, or other metals and which are improperly dis-
carded represent a significant solid waste problem in
this state. Finding a solution to litter problems involving
containers has been challenging and difficult for the
public and private sectors. The Legislature has deter-
mined that a program operated with the established
goals and implemented in phases is the most appropri-
ate way to solve problems of litter involving containers.
This act is intended to create the necessary infrastruc-
ture to help solve comprehensive solid waste manage-
ment problems lacing the state over the next 5 years.
However, if the recycling facilities and programs created
under this act are not adequate to meet the legislated
recycling goals, additional mechanisms are provided to
be implemented in phases to help assure that litter prob-
lems involving containers are solved and that the reduc-
tion of the solid waste stream can be accomplished.
(2) If the Department of Environmental Regulation
determines on January 1, 1993, by a preponderance of
evidence, that containers which are made of glass, plas-
tic, aluminum, plastic coated paper, or other metals and
which are sold in this state are not being recycled at a
sustained rate of 50 percent of the quantities that these
individual types of containers are sold within the state,
the advance disposal fee program created by subsec-
tion (3) shall be implemented. The requirements of this
section that apply to plastic containers shall apply indi-
vidually to the categories of plastic containers identified
in s. 403.708(9).
(3)(a) If the department makes the finding specified
in subsection (2). beginning July 1, 1993, there shall be
an advance disposal fee of 1 cent per container charged
by retail establishments on those types of containers
sold in the state.
(b) The proceeds of the advance disposal fee col-
lected pursuant to paragraph (a), less the cost of admin-
istration, shall be reported and paid quarterly and shall
be transferred into the Container Recycling Trust Fund
which is hereby created in the Department of Revenue.
For the purposes of this section, "proceeds" of the fee
shall mean all funds collected ana received by the
department hereunder, including interest and penalties
on delinquent fees. The amount deducted for the costs
of administration shall not exceed 3 percent ol the total
revenues collected hereunder and shall be only those
costs solely and directly attributable to the fee. The
Department of Revenue shall determine the amount
which needs to be reserved in the Container Recycling
Trust Fund each quarter for refunds and administrative
costs. Any amount above that reserve shall be trans-
ferred quarterly to the Solid Waste Management Trust
Fund tor the purposes specified therein.
(c) The Department of Revenue shall administer,
collect, and enforce the fee authorized under this sec-
tion pursuant to the same procedures used in the admin-
istration, collection, and enforcement of the general
state sales tax imposed under chapter 212 except as
provided in this section. The provisions of (his section
regarding the authority to audit and make assessments,
keeping of books and records, and interest and penal-
ties on delinquent fees shall apply. The fees shall not be
included in the computation of estimated taxes pursuant
to s. 212.11, nor shall the dealer's credit for collecting
taxes or fees provided in s. 212.12 apply to this fee.
(d) The Department of Revenue, under the applica-
ble rules of the 2Career Service Commission, is author-
ized to employ persons and incur other expenses for
which funds are appropriated by the Legislature. The
department is empowered to adopt such rules and sha"
prescribe and publish such forms as may be necessary
to effectuate the purposes ol this section. Tne depart-
ment is authorized to eslabiish audit procedures and to
assess delinquent fees
(
-------
s. 403.7197
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.8051
(a) Establishing reporting requirements necessary
to obtain necessary sales and recycling information to
implement this section and s. 403.7198.
(b) Establishing the criteria to determine whether
the 50-percent recycling rate has been achieved; and
(c) Establishing the criteria for registration of public
and private recycling centers.
(5) The information obtained for purposes of para-
graph (4)(a) relating to sales information of individual
businesses is confidential and exempt from the provi-
sions of s. 119.07(1). This exemption is subject to the
Open Government Sunset Review Act in accordance
with s. 119.14. All other records and information shall be
considered public records for purposes of chapter 119.
(6)(a) Containers for which an advance disposal fee
has been charged may be returned to recycling centers
which have registered with the department, pursuant to
department rule, for a refund on the advance disposal
fee in addition to payment for the market value of the
product from which the container is made. Unclaimed
moneys which remain in the Container Recycling Trust
Fund shall be allocated to support container recycling
programs as follows:
1. For capital assistance grants, 60 percent;
2. For litter control, 15 percent;
3. For promotion and education, 10 percent;
4. For technical assistance, 8 percent;
5. For research and development, 5 percent; and
6. For administration, 2 percent.
(b) No more than monthly, or at times determined by
rule of the Department of Revenue, operators of regis-
tered recycling centers may certify to the Department of
Revenue, on forms provided by the Department of Reve-
nue, the amount of refunds of the advance disposal fee
which have been paid to purchasers and shall receive
a refund from the Container Recycling Trust Fund. The
Department of Revenue shall establish audit procedures
for registered recycling center operators.
(7) If the Department of Environmental Regulation
determines by October 1.1995, that containers made of
glass, plastic, aluminum, plastic coated paper, c other
metals and sold in the state are not being recycled at a
rate of 50 percent of the quantities that tnese individual
types of containers are sold within the state, the
advance disposal fee program created by subsection (3)
shall increase to 2 cents per container and the provi-
sions of s. 403.7198 shall be implemented. Such fees
shall not apply to those types of containers that are recy-
cled at a rate of 50 percent or more.
History.—s 72. ch. 86-130. s 2. C 90-74. s. 36. cn 90-132. s I. ch. 92-327
'Not#.—E*p"es October i. 1995. pursuant to s 72. ch 06-130 ano is scnedulec
lor review by the Legislature
*Noto.~ Section 72. en 86-163. uans'errea "the statutory Doners, duties ana func-
tions recoras. ana property oi the Career Service Commission' to tne Public Employ'
ees Relations Commission
403.74 Management of hazardous materials by
governmental agencies.—
(1) For the purposes of this section, "hazardous
materials" are those substances which are:
(a) Listed as constituents of waste streams F001.
F002. F003, F004. and F005 in 40 C.F.R. s 261.31, or
(b) Listed in 40 C.F.R. s. 261.33. including those sub-
stances which are "pesticides" as defined by s. 487.021.
(2) Every local, state, or other governmental agency
and every institution of the State University System that
disposes of hazardous maierials shall.
(a) Notify the Department of Environmental Regula
tion of the type and approximate annual quantity of each
hazardous material that is generated.
(b) Notify the department of the management, prac
tices used for disposal of its hazardous materials.
(3) Each such agency shall develop written plans for
the management of the disposal of hazardous material.
(4) Each such agency shall develop plans for spill
prevention control and countermeasures for hazardous
materials incidents.
(5) Hazardous materials which are used by govern-
mental agencies in annual quantities of less than 1 kilo-
gram, except for those hazardous materials which are
listed because of reactivity, are exempt from this sec-
tion.
Hiitory.—s 36. ch 83-310; s. 39. ch. 84-338; s 56. ch 85-81; s. 35. ch. 92-115
Not©.—Former s 501 116
part v
ENVIRONMENTAL REGULATION
403.8051 Small Business Air Pollution Compliance
Advisory Council; members; duties.
403.8051 Small Business Air Pollution Compliance
Advisory Council; members; duties.—
(1) The Small Business Air Pollution Compliance
Advisory Council is created within the Department of
Environmental Regulation. The council shall have seven
members, appointed as follows:
(a) Two members who are not owners or representa-
tives of owners of small business stationary sources,
appointed by the Governor to represent the public.
(b) Two members, one each appointed by the Presi-
dent of the Senate and the Minority Leader of the Sen-
ate. who are owners or who represent owners of small
business stationary sources.
(c) Two members, one each appointed by the
Speaker of the House of Representatives and the Minor-
ity Leader of the House of Representatives, who are
owners or who represent owners of small business
stationary sources.
(d) One member appointed by the secretary of the
Department of Environmental Regulation to represent
the department.
(2) The council shall:
(a) Render advice on the effectiveness of the
department's small business stationary air pollution
source technical and environmental compliance assist-
ance program, the difficulties encountered, and the
degree and severity ot enforcement.
(b) Review information for small business stationary
air pollution sources to assure such information is under-
standable by the layperson.
(c) Make periodic reports to the administrator of the
United States Environmental Protection Agency as
required by federal law.
Hittofy. —s 12 ch 92-132
1203
-------
s. 403.914
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.918
PART VIII
PERMITTING OF ACTIVITIES
IN WETLANDS
403.914 Jurisdictional declaratory statements.
403.918 Criteria for granting or denying permits; per-
mits for mining activities.
403.914 Jurisdictional declaratory statements.—
(1) Before applying for a permit to dredge or fill, a
property owner, an entity which has the power of emi-
nent domain, or another person with a legal or equitable
interest in property may petition the department for a
declaratory statement of the dredge and fill jurisdiction
of the department. The department shall, by rule, spec-
ify information which must be provided and may require
authorization to enter upon the property. The depart-
ment may require a fee of at least $250 and not more
than $10,000 to cover the direct costs of acting upon the
petition. The fee shall be based, by rule, upon the size
and environmental complexity of the site for which the
jurisdictional declaratory statement is sought.
(a) Within 30 days of the receipt of a petition for a
jurisdictional declaratory statement, the department
shall notify the applicant of any additional information
which may be necessary. The department shall com-
plete the assessment and issue notice of the proposed
agency action within 60 days of receipt of a complete
petition. Notwithstanding any provision of s. 120.60, the
department may publish or by rule may require the appli-
cant to publish, or the applicant may elect to publish, in
a newspaper of general circulation in the area affected,
the notice of the proposed agency action, The provi-
sions of ss. 120.57 and 120.59 are applicable to declara-
tory statements under this section. Any person whose
substantial interests will be affected may petition for a
hearing within 14 days of the publication of notice. If no
petition for a hearing is filed, the department shall issue
the jurisdictional declaratory statement within 10 days.
(b) Such jurisdictional declaratory statement is bind-
ing tor a period of 5 years, so long as physical conditions
on the site do not change so as to alter jurisdiction dur-
ing this time period.
(c) A petitioner who disputes the proposed agency
action may withdraw the petition without prejudice at
any point prior to final agency action.
(d) The department may revoke a jurisdictional
declaratory statement if it finds that the petitioner has
submitted inaccurate information in the petition.
(2) The department also may issue informal preap-
plication jurisdictional determinations or otherwise insti-
tute jurisdictional determinations on its own initiative as
provided by law.
(3) A jurisdictional declaratory statement obtained
pursuant to this section is final agency action and is in
lieu of a declaratory statement of jurisdiction obtainable
pursuant to s. 120.565.
History. —s 1. en 8J-7S. s 5. ch 89-32J s I9.cn 92-13?
403.918 Criteria for granting or denying permits;
permits for mining activities.—
(i) A permit may not be issued under ss. 403.91-
403.929 unless the applicant provides the department
with reasonable assurance that water quality standards
will not be violated. The department, by rule, shall estab-
lish water quality criteria for wetlands within its jurisdic-
tion, which criteria give appropriate recognition to the
water quality of such wetlands in their natural state.
(2) A permit may not be issued under ss. 403.91-
403.929 unless the applicant provides the department
with reasonable assurance that the project is not con-
trary to the public interest. However, for a project which
significantly degrades or is within an Outstanding Flor-
ida Water, as provided by department rule, the applicant
must provide reasonable assurance that the project will
be clearly in the public interest.
(a) In determining whether a project is not contrary
to the public interest, or is clearly in the public interest,
the department shall consider and balance the following
criteria:
1. Whether the project will adversely affect the pub-
lic health, safety, or welfare or the property of others:
2. Whether the project will adversely affect the con-
servation of fish and wildlife, including endangered or
threatened species, or their habitats:
3. Whether the project will adversely affect naviga-
tion or the flow of water or cause harmful erosion or
shoaling;
4. Whether the project will adversely affect the fish
ing or recreational values or marine productivity in tne
vicinity of the project;
5. Whether the project will be of a temporary or per-
manent nature;
6. Whether the project will adversely affect or will
enhance significant historical and archaeological
resources under the provisions of s. 267.061; and
7. The current condition and relative value of func-
tions being performed by areas affected by the pro-
posed activity.
(b) If the applicant is unable to otherwise meet the
criteria set forth in this subsection, the depariment, in
deciding to grant or deny a permit, shall consider mea-
sures proposed by or acceptable to the applicant to miti-
gate adverse effects which may be caused by the proj-
ect. If the applicant is unable to meet water quality
standards because existing ambient water quality does
not meet standards, the department shall consider miti-
gation measures proposed by or acceptable to the appli-
cant that cause net improvement of the water quality in
the receiving body of water for those parameters which
do not meet standards.
(3) It is the intent of the Legislature to provide for the
use of certain waters as a natural means of stormwater
management and to incorporate these waters into com-
prehensive stormwater management systems when
such use is compatible with the ecological characteris-
tics of such waters and with sound resource manage-
ment. To accomplish this, within 6 months following
October 1, 1984, the department shall, by rule, establish
performance standards for the issuance o! stormwater
permits for the use of certain waters for stormwater man-
agement. The compliance with such standards creates
a presumption in favor of the issuance of the stormwatei
management permit. Performance standards shall be
adopted for waters which are dominated by tnose plan!
species listed pursuant to s. 403.817 and
1204
-------
s. 403.918 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s, 403.918
(a) Which are connected to other watercourses by
artificial watercourses; or
(b) Which are connected to other waters solely by an
intermittent watercourse.
(4) It is the intent of the Legislature to provide for the
use of certain waters that are dominated by those plant
species that are listed pursuant to s. 403.817 to receive
and treat domestic wastewater that at a minimum has
been treated to secondary standards. No later than
December 31. 1985, the department shall, by rule,
establish criteria for this activity, which criteria protect
the type, nature, and function of the wetlands receiving
the wastewater.
(5)(a) It is the intent of the Legislature to protect
estuaries and lagoons from the damage created by con-
struction of vertical seawalls and to encourage construc-
tion of environmentally desirable shore protection sys-
tems, such as riprap and gently sloping shorelines
which are planted with suitable aquatic and wetland
vegetation.
(b) No permit for dredging or filling or other construc-
tion to create a vertical seawall may be issued by the
department unless one of the following conditions
exists:
1. The proposed construction is located within a
port as defined in s. 315.02 or s. 403.021;
2. The proposed construction is necessary for the
creation of a marina, the vertical seawalls are necessary
to provide access to watercraft, or the proposed con-
struction is necessary for public facilities:
3. The proposed construction is located within an
existing manmade canal and the shoreline of such canal
is currently occupied in whole or in part by vertical sea-
walls; or
4. The proposed construction is to be conducted
by a public utility when such utility is acting in the per-
formance of its obligation to provide service to the pub-
lic.
(c) When considering an application for a permit to
repair or replace an existing vertical seawall, the depart-
ment shall generally require such seawall to be faced
with riprap material, or to be replaced entirely with riprap
material unless a condition specified in subparagraph 1..
subparagraph 2., subparagraph 3., or subparagraph 4.
of paragraph (b) exists.
(d) This subsection shall in no way hinder any activ-
ity previously exempt or permitted or those activities
permitted pursuant to chapter 161.
(6)(a) The Legislature recognizes that some mining
activities that may occur in waters of the state must
leave a deep pit as part of the reclamation. Such deep
pits may not meet the established water quality stan-
dard for dissolved oxygen below the surficial layers.
Where such mining activities otherwise meet the permit-
ting criteria contained in this statute, these activities
may be eligible for a variance from the established water
quality standard for dissolved oxygen within the lower
layers of the reclaimed pit.
(b) Wetlands reclamation activities for phosphate
and heavy minerals mining undertaken pursuant to
chapter 378 shall be considered appropriate mitigation
for this chapter and part IV of chapter 373, if they main-
tain or improve the water quality and the function of the
biological systems present at the site prior to the com-
mencement of mining activities.
(c) Wetlands reclamation activities for fuller's earth
mining undertaken pursuant to chapter 378 shall be con-
sidered appropriate mitigation for this chapter and part
IV of chapter 373. if they maintain or improve the water
quality and the function of the biological systems pres-
ent at the site prior to the commencement of mining
activities, unless the site features make such reclama-
tion impracticable, in which case the reclamation must
offset the project s adverse impacts on surface waters,
including wetlands.
(d) Onsite reclamation of the mine pit for limerock
and sand mining shall be conducted in accordance with
the requirements of chapter 378.
1. Mitigation activities must offset the project's
adverse impacts on surface waters. Mitigation activities
shall be located onsite, unless onsite mitigation activities
are not feasible, then offsite mitigation as close to the
activities as possible shall be required. Mitigation bank-
ing may be an acceptable form of offsite mitigation, as
judged on a case-by-case basis.
2. The ratio of mitigation to wetlands loss shall be
determined on a case-by-case basis, and shall be
based on the quality of the wetland to be impacted and
the type of mitigation proposed.
Hitto/y.—s 1. en 84-79. ss 70. 71. ch 84-338. s. 6. cn 85-269. s <.ch 85-334;
s 3, ch. 90-227, s 20. ch 92-132
PART IX
NATURAL GAS TRANSMISSION
PIPELINE SITING
403.9401 Short title.
403.9402 Legislative intent.
403.9403 Definitions.
403.9404 Department of Environmental Regulation;
powers and duties.
403.9405 Applicability; certification; exemption;
notice of intent.
403.94055 Application contents; corridor require-
ments.
403.9406 Appointment of a hearing officer.
403.9407 Distribution of application; schedules.
403.9408 Determination of completeness.
403.9409 Determination of sufficiency.
403.941 Preliminary statements of issues, reports,
and studies.
403.9411 Notice; proceedings; parties and partici-
pants.
403.9412 Alternate corridors.
403.9413 Amendment to the application.
403.9414 Alteration of time limits.
403.9415 Final disposilion of application.
403.9416 Effect of certification.
403.9417 Recording of notice of certified corridor
route.
403.9418 Modification of certification.
403.9419 Enforcement of compliance.
403.942 Superseded laws, regulations, and certifi-
cation power.
403.9421 Fees; disposition.
1205
-------
s. 403.9401
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.9403
403.9422 Determination of need for natural gas trans-
mission pipeline; powers and duties.
403.9423 Certification admissible in eminent domain
proceedings; attorney's tees and costs.
403.9424 Local governments; informational public
meetings.
403.9425 Revocation or suspension of certification.
403.9401 Short title.—Sections 403.9401-403.9425
may be cited as the "Natural Gas Transmission Pipeline
Siting Act."
History.—s 1. ch 92-284.
403.9402 Legislative intent.—It is the Legislature's
intent by adoption of ss. 403.9401 -403.9425 to establish
a centralized and coordinated permitting process for the
location of natural gas transmission pipeline corridors
and the construction and maintenance of natural gas
transmission pipelines, which necessarily involves sev-
eral broad interests of the public addressed through the
subject matter jurisdiction of several agencies. Recog-
nizing the need to ensure natural gas delivery reliability,
safety, and integrity, and in order to meet natural gas
energy needs in an orderly and timely fashion, the cen-
tralized and coordinated permitting process established
by ss. 403.9401-403.9425 is intended to further the leg-
islative goal of ensuring, through available and reason-
able methods, that the location of natural gas transmis-
sion pipelines produce minimal adverse effect on the
environment and public health, safety, and welfare. It is
the intent of ss. 403.9401-403.9425 to fully balance the
need for natural gas supplies with the broad interests of
the public in order to effect a reasonable balance
between the need for the natural gas transmission pipe-
line as a means of providing abundant clean-burning
natural gas and the impact on the public and the envi-
ronment resulting from the location of the natural gas
transmission pipeline corridor and the construction and
maintenance of the natural gas transmission pipelines.
The Legislature intends that the provisions of chapter
120 apply to ss. 403.9401-403.9425 and to proceedings
pursuant to those sections except as otherwise
expressly exempted by other provisions of ss.
403.9401-403.9425. It is not the intent of this legislation
that the natural gas transmission pipeline certification
process prevent, delay, or prohibit the issuance of gov-
ernment permits by the appropriate agencies necessary
to locate or construct other natural gas pipelines regu-
lated by the state, pipelines regulated by the Federal
Energy Regulatory Commission, and natural gas distri-
bution companies, provided an applicable agency per-
mit requirements are met.
History. —s l.ch 92-7&A
403.9403 Definitions.—As used in ss. 403.9401-
403.9425. the term:
(1) "Agency." as the context requires, means an offi-
cial, officer, commission, authority, council, committee,
department, division, bureau, board, section, or other
unit or entity of government, including a county, munici-
pality. or other regional or local governmental entity.
(2) "Amendment" means a material change in infor-
mation provided in the application made after the initial
application filing.
(3) "Applicant" means any natural gas transmission
pipeline company that applies for certification pursuant
to ss. 403.9401-403.9425.
(4) "Application" means the documents required by
the department to be filed by a natural gas transmission
pipeline company to initiate the certification process.
(5) "Board" means the Governor and Cabinet sitting
as the Natural Gas Transmission Pipeline Siting Board.
(6) "Certification" means the approval by the board
of a corridor and of the construction and maintenance
of a pipeline within that corridor with any changes or
conditions that the board considers appropriate. Certifi-
cation is evidenced by a written order of the board.
(7) "Commission" means the Florida Public Service
Commission.
(8) "Complete" means that the applicant has
addressed all applicable sections of the application, but
does not mean that those sections are sufficient in com-
prehensiveness of data or in quality of information pro-
vided.
(9) "Corridor" means the area within which a natural
gas transmission pipeline right-of-way is to be located.
(10) "Department" means the Department of Environ-
mental Regulation.
(11) "License" means a franchise, permit, certification,
registration, charter, comprehensive plan amendment,
development order or permit as defined in chapter 163
or chapter 380, or similar form of authorization required
by law, but it does not include a license required primar-
ily for revenue purposes if issuance of the license is
merely a ministerial act.
(12) "Local government" means a municipality or a
county in the jurisdiction of which the project is pro-
posed to be located.
(13) "Modification" means any change in a certifica-
tion order after issuance, including a change in the con-
ditions of certification.
(14) "Natural gas" means either natural gas in a gas-
eous state unmixed or a mixture of natural and artificial
gas.
(15) "Natural gas transmission pipeline" or "pipeline"
means the transmission pipeline and any related equip-
ment, facility, or building used in the transportation of
natural gas or its treatment or storage during the course
of transportation. The term does not include a gathering
line, but the term includes a transmission pipeline that
transports gas from a gathering line or a storage facility
to a distribution center or a storage facility or that oper-
ates at a hoop stress of 20 percent or more of specified
minimum yield strength, as defined by federal law, or
that transports gas within a storage field.
(16) "Natural gas transmission pipeline company"
means a person engaged in the transportation, by natu-
ral gas transmission pipeline, of natural gas.
(17) "Natural gas transmission pipeline right-of-way"
or "pipeline right-of-way" means land necessary for the
construction and maintenance of a natural gas transmis-
sion pipeline.
(18) "Nonprocedural "requirements of agencies"
means an agency's regulatory requirements established
by statute, rule, ordinance, or comprehensive plan,
excluding any provisions prescribing forms, lees, proce-
dures, or time limits for the review or processing ol infor-
1206
-------
s. 403.9403
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.94055
mation submitted to demonstrate compliance with those
regulatory requirements.
(19) "Person" means an individual, partnership, joint
venture, private or public corporation, association, firm,
public service company, political subdivision, municipal
corporation, government agency, public utility district, or
any other entity, public or private, however organized.
(20) "Preliminary statement of issues" means a listing
and explanation of those issues within the agency's
jurisdiction which are of major concern to the agency in
relation to the proposed corridor.
(21) "Regional planning council" means a regional
planning council created pursuant to chapter 186 in the
jurisdiction of which the project is proposed to be
located.
(22) "Sufficient" means that an application is not only
complete but also that all sections are adequate in the
comprehensiveness of data and the quality of informa-
tion provided to enable the department to determine
whether the application provides the reviewing agencies
adequate information to prepare the reports required by
s. 403.941.
(23) "Water management district" means a water man-
agement district created pursuant to chapter 373 in the
jurisdiction of which the project is proposed to be
located.
History. — s l.ch 92-28«*
403.9404 Department of Environmental Regulation;
powers and duties.—The Department of Environmental
Regulation shall have the following powers and duties:
(1) To adopt or amend reasonable procedural rules
to implement the provisions of ss. 403.9401-403.9425
and to adopt or amend rules to implement the provisions
of subsection (8).
(2) To prescribe the form and content of the public
notices and the form, content, and necessary support-
ing documentation, and any required studies, for certifi-
cation applications. All such data and studies shall be
related to the jurisdiction of the agencies relevant to the
application.
(3) To receive applications for natural gas transmis-
sion pipeline and corridor certifications and initially
determine the completeness and sufficiency thereof.
(4) To make or contract for studies of certification
applications. All such studies shall be related to the juris-
diction of the agencies relevant to the application. For
studies in areas outside the jurisdiction of the depart-
ment and in the jurisdiction of another agency, the
department may initiate such studies, but only with the
consent of such agency.
(5) To administer the processing of applications for
certification and ensure that the applications are pro-
cessed as expeditiously as possible.
(6) To require such fees as allowed by ss. 403.9401 -
403.9425.
(7) To prepare a report and written analysis as
required by s 403.941.
(8) To prescribe the means for monitoring the
eflects arising from the construction, operation, and
maintenance ol the natural gas transmission pipelines to
assure continued compliance with the terms ol the certi-
fication.
(9) To make a determination cl acceptability of any
alternate corridor proposed for consideration pursuant
to s. 403.9412.
(10) To act as clerk for the board.
(11) To enforce compliance with the provisions of ss.
403.9401-403.9425.
(12) To function as staff to the board, when appropri-
ate.
History. —s l.ch 92-28-*
403.9405 Applicability; certification; exemption;
notice of intent.—
(1) The provisions of ss. 403.9401-403.9425 apply to
each natural gas transmission pipeline, except as pro-
vided in subsection (2).
(2) No construction of a natural gas transmission
pipeline may be undertaken after October 1, 1992, with-
out first obtaining certification under ss. 403.9401-
403.9425, but these sections do not apply to:
(a) Natural gas transmission pipelines which are less
than 15 miles in length or which do not cross a county
line, unless the applicant has elected to apply for certifi-
cation under ss. 403.9401-403.9425.
(b) Natural gas transmission pipelines for which a
certificate of public convenience and necessity has
been issued under s. 7(c) of the Natural Gas Act, 15
U.S.C. s. 717f, or a natural gas transmission pipeline cer-
tified as an associated facility to an electrical power
plant pursuant to the Florida Electrical Power Plant Sit-
ing Act, ss. 403.501-403.518, unless the applicant
elects to apply for certification of that pipeline under ss.
403.9401-403.9425.
(c) Natural gas transmission pipelines that are
owned or operated by a municipality or any agency
thereof, by any person primarily for the local distribution
of natural gas. or by a special district created by special
act to distribute natural gas, unless the applicant elects
to apply for certification of that pipeline under ss.
403.9401-403.9425.
(3) Except as otherwise provided in this section, the
exemption of a natural gas transmission pipeline under
ss. 403.9401-403.9425 does not constitute an exemp-
tion for the natural gas transmission pipeline from other
applicable permitting processes under other provisions
of law or local government ordinances.
(4) All natural gas transmission pipeline companies
except those engaged in activities pursuant to para-
graph (2)(c) shall notify the department in writing, prior
to the start of construction, of their intent to construct
a natural gas transmission pipeline exempted pursuant
to this section. Such notice shall be only for information
purposes, and no action by the department shall be
required pursuant to such notice.
(5) No natural gas transmission pipeline certified
pursuant to ss. 403.9401-403.9425 shall be used for the
transport of any substance other than natural gas.
History —s l.ch 92-28-J
403.94055 Application contents; corridor require-
ments.—
(1) A natural gas transmission pipeline company
may file an application encompassing ali or a part of one
or more proposed pipelines. The beginning and ending
points of a pipeline must be specified in the application
1207
-------
s. 403.94055
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.9409
and must be verified by the commission in its determina-
tion of need. The application must include all structures
and maintenance and access roads required to be con-
structed. The applicant may include metering and com-
pressor stations and other facilities directly related to the
transportation of natural gas which will serve the pipe-
line.
(2) The width of the corridor may be the width of the
pipeline right-of-way or wider, but may not exceed '/~
mile. After the property interests required for the pipe-
line right-of-way have been acquired by the applicant,
the boundaries of the corridor shall be narrowed to
include only that land within pipeline right-of-way. The
corridor must be specified in the application, in amend-
ments to the application filed pursuant to s. 403.9413,
and in notices of acceptance of alternate corridors filed
by an applicant and the department pursuant to s.
403.9412.
Hijtory.—s I. en 92-284
403.9406 Appointment of a hearing officer.—
Within 7 days after receipt of an application, whether
complete or not, the department shall request the Divi-
sion of Administrative Hearings to designate a hearing
officer to conduct the hearings required by ss.
403.9401-403.9425. The division director shall desig-
nate a hearing officer to conduct the hearings required
by ss. 403.9401-403.9425 within 7 days after receipt of
the request from the department. Whenever practica-
ble, the division director shall assign a hearing officer
who has had prior experience or training in the certifica-
tion of linear facilities. Upon being advised that a hearing
officer has been designated, the department shall imme-
diately file a copy of the application and all supporting
documents with the hearing officer who shall docket the
application.
History. —s l.ch 92-28-J
403.9407 Distribution of application; schedules.—
(1) Within 7 days after the filing of an application, the
department shall provide the applicant and the Division
of Administrative Hearings the names and addresses of
those affected or other agencies entitled to notice and
copies ol the application and any amendments.
(2) Within 7 days after completeness has been
determined, the department shall prepare a schedule of
dales for submission of statements of issues, determina-
tion of sufficiency, and submittal of final reports from
affected and other agencies and other significant dates
to be followed during the certification process, including
dales for filing notices of appearance to be a party pur-
suant to s. 403.9411(4). This schedule shall be provided
by the department to the applicant, the hearing officer,
and the agencies identified pursuant to subsection (1).
(3) Within 7 days after completeness has been
determined, the applicant shall distribute copies of the
application to all agencies identified by the department
pursuant to subsection (1). Copies ol changes and
amendments to the application shall be timely distrib-
uted by the applicant to all agencies and parties who
have received a copy ol the application.
History. - s \ a- 9?
403.9408 Determination of completeness.—Within
15 days after receipt of an application, the department
shall file a statement with the Division of Administrative
Hearings and with the applicant declaring its position
with regard to the completeness, not the sufficiency, of
the application.
(1) If the department declares the application to be
incomplete, the applicant, within 15 days after the filing
of the statement by the department, shall file with the
Division of Administrative Hearings and with the depart-
ment a statement:
(a) Agreeing with the statement of the department
and withdrawing the application:
(b) Agreeing with the statement of the department
and agreeing to amend the application without with-
drawing it. The time schedules referencing a complete
application under ss. 403.9401-403.9425 shall not com-
mence until the application is determined complete; or
(c) Contesting the statement of the department.
(2) If the applicant contests the determination by the
department that an application is incomplete, the hear-
ing officer shall schedule a hearing on the statement of
completeness. The hearing shall be held as expedi-
tiously as possible, but not later than 30 days after the
filing of the statement by the department. The hearing
officer shall render a decision within 10 days after the
hearing.
(a) If the hearing officer determines that the applica-
tion was not complete as filed, the applicant shall with-
draw the application or make such additional submittals
as necessary to complete it. The time schedules refer-
encing a complete application under ss. 403.9401-
403.9425 shall not commence until the application is
determined complete.
(b) If the hearing officer determines that the applica-
tion was complete at the time it was filed, the time
schedules referencing a complete application under ss.
403.9401-403.9425 shall commence upon such determi-
nation.
History.—s 1. ch 92-28-i
403.9409 Determination of sufficiency.—Within 45
days after the dissribution of the complete application or
amendment, the department shall file a statement with
the Division of Administrative Hearings and with the
applicant declaring its position with regard to the suffi-
ciency of the application or amendment. The depart-
ment's statement shall be based upon consultation with
the affected agencies, which shall submit to the depart-
ment recommendations on the application's sufficiency
within 30 days after distribution of the complete applica-
tion.
(1) If the department declares the application or
amendment insufficient, the applicant may:
(a) Withdraw the application or amendment:
(b) File additional information necessary to make the
application or amendment sufficient; or
(c) Contest the notice of insufficiency by Mling a
request lor hearing with the hearing officer within 15
days after the filing of the statement ol insufficiency. if
a hearing is requested by the applicant, all time sched-
ules under ss. 403.9401-403.9425 shall be lolled as of
the date ol the department's statement ol insufficiency.
1208
-------
s. 403.9409
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.941
pending the hearing officer's aecision concerning the
dispute. A hearing shall be held no later than 30 days
after the filing of the statement by the department, and
a decision shall be rendered within 10 days after the
hearing, unless otherwise agreed by the department
and the applicant.
(2)(a) If the hearing officer determines, contrary to
the department, that an application or amendment is
sufficient, all time schedules under ss. 403.9401-
403.9425 shall resume as of the date of the hearing offi-
cer's determination.
(b) If the hearing officer agrees that the application
is insufficient, all time schedules under ss. 403.9401-
403.9425 shall remain tolled until the applicant files addi-
tional information and the application or amendment is
determined sufficient by the department or the hearing
officer.
(3) If, within 30 days after receipt of the additional
information submitted pursuant to paragraph (1)(b). or
paragraph (2)(b), based upon the recommendations of
the affected agencies, the department determines thai
the additional information supplied by an applicant does
not render the application or amendment sufficient, the
applicant may exercise any of the options specified in
subsection (1) as often as may be necessary to resolve
the matter.
History. —s i.ch 92-29-1
403.941 Preliminary statements of issues, reports,
and studies.—
(1) Each affected agency which received an applica-
tion m accordance with s. 403.9407(3) shall submit a pre-
liminary statement of issues to the department and the
applicant no later than 60 days after distribution of the
complete application. Such statements of issues shall
be made available to each local government for use as
information for public meetings held pursuant to s.
403.9424. The failure to raise an issue in this preliminary
statement ol issues shall not preclude the issue from
being raised in the agency's report.
(2)(a) The aflected agencies shall prepare reports
as provided in this paragraph and shall submit them to
the department and the applicant within 60 days after
the application is determined sufficient:
1. The department shall prepare a report as to the
impact ol each proposed natural gas transmission pipe-
line or corridor as it relates to matters within its jurisdic-
tion.
2. The Department of Natural Resources shall pre-
pare a report as to the impact of each proposed natural
gas transmission pipeline or corridor on matters within
its jurisdiction.
3. Each water management district m the jurisdic-
tion of which a proposed natural gas transmission pipe-
line or corridor is to be iocated shall prepare a report as
to the impact on water resources and other matters
within its jurisdiction.
4. The Department ol Community Affairs shall pre-
pare a report containing recommendations which
address tne impact upon the public of the proposed nai
ural gas transmission pipeline or corridor, based on tne
degree to which the proposed natural gas transmission
pipeline or cornaor is consistent with the applicable por-
tions of the state comprehensive plan and other matters
within its jurisdiction. The Department of Community
Affairs may also comment on the consistency of the pro-
posed natural gas transmission pipeline or corridor with
applicable comprehensive regional policy plans or local
comprehensive plans and land development regula-
tions.
5. The Game and Fresh Water Fish Commission
shall prepare a report as to the impact of each proposed
natural gas transmission pipeline or corridor on fisn and
wildlife resources and other matters within its jurisdic-
tion.
6. Each local government in which the natural gas
transmission pipeline or natural gas transmission pipe-
line corridor will be located shall prepare a report as to
the impact of each proposed natural gas transmission
pipeline or corridor on matters within its jurisdiction,
including the consistency of the proposed natural gas
transmission pipeline or corridor with all applicable local
ordinances, regulations, standards, or criteria that apply
to the proposed natural gas transmission pipeline or cor-
ridor, including local comprehensive plans, zoning regu-
lations. land development regulations, and any applica-
ble local environmental regulations adopted pursuant to
s. 403.182 or by other means. No change by the respon-
sible local government or local agency in local compre-
hensive plans, zoning ordinances, or other regulations
made after the date required for the filing of the local
government's report required by this section shall be
applicable to the certification of the proposed naturai
gas transmission pipeline or corridor unless the certifica-
tion is denied or the application is withdrawn.
7. Each regional planning council in which the natu-
ral gas transmission pipeline or natural gas transmission
pipeline corridor will be located shall present a report
containing recommendations that address the impact
upon the public of the proposed natural gas transmis-
sion pipeline or corridor, based on the degree to which
the natural gas transmission pipeline or corridor is
consistent with the applicable provisions of the compre-
hensive regional policy plan adopted pursuant to chap-
ter 186 and other impacts of each proposed natural gas
transmission pipeline or corridor on matters within its
jurisdiction.
8. The Department of Transportation shall prepare
a report on the effect of the natural gas transmission
pipeline or natural gas transmission pipeline corridor on
matters within its jurisdiction, including roadway cross-
ings by the pipeline. The report shall contain at a mini-
mum:
a. A report by the applicant to the department stat-
ing that all requirements of the department's utilities
accommodation guide have been or will be met in regard
to the proposed pipeline or pipeline corridor: and
b. A statement by the department as to the ade-
quacy of the report to the department by the applicant.
9. The Department of State. Division of Historical
Resources, shall prepare a report on the impact of the
natural gas transmission pipeline or natural gas trans-
mission pipeline corridor on matters within its jurisdic-
tion.
10. The commission shall prepare a report address-
ing matters within its jurisdiction. The commission s
1209
-------
s. 403.941
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.9411
report shall include its determination of need issued pur-
suant to s. 403.9422.
(b) Each report shall contain the inlormation on vari-
ances required by s. 403.9416(2) and proposed condi-
tions of certification on matters within the jurisdiction of
each agency. For each condition proposed by an
agency, the agency shall list the specific statute, rule,
or ordinance, as applicable, which authorizes the pro-
posed condition.
(c) Each reviewing agency shall initiate the activities
required by this section no later than 15 days after the
complete application is distributed. Each agency shall
keep the applicant and the department informed as to
the progress of its studies and any issues raised
thereby.
(3) The department shall prepare a written analysis
which contains a compilation of agency reports and
summaries of the material contained therein which shall
be filed with the hearing officer and served on all parties
no later than 115 days after the application has been
determined sufficient, and which shall include:
(a) The studies and reports required by this section
and s. 403.9422.
(b) Comments received from any other agency or
person.
(c) The recommendation of the department as to the
disposition of the application; of variances, exemptions,
exceptions, or other relief identified by any party; and of
any proposed conditions of certification which the
department believes should be imposed.
(4) The failure of any agency to submit a preliminary
statement of issues or a report, or to submit its prelimi-
nary statement of issues or report within the allowed
time, shall not be grounds for the alteration of any time
limitation in ss. 403.9401-403.9425 pursuant to s.
403.9414. Neither the failure to submit a preliminary
statement of issues or a report, nor the inadequacy of
the preliminary statement of issues or report, shall be
grounds to deny or condition certification. However, the
failure of an agency to raise issues in its report shall pre-
clude the agency from raising those issues at the certifi-
cation hearing.
History. — s i.ch 92-284
403.9411 Notice; proceedings; parties and partici-
pants.—
(1)(a) No later than 15 days after an application has
been determined complete, the applicant shall arrange
for publication of a notice of the application and of the
proceedings required by ss. 403.9401-403 9425. Such
notice shall give notice of the provisions of s.
403.9416(1) and (2).
(b) The applicant shall arrange for publication of a
notice of the certification hearing and other public hear-
ings provided for in this section and notice of the dead-
line (or filing of notice of intent to be a party. Such
notices shall be published at least 80 days before the
date set for the hearing.
(c) The applicant shall arrange for publication of a
reminder notice in the newspapers specified in para-
graph (d) no more than 10 days prior to the certification
hearing, reminding the public of the date and location of
the hearing. This notice shall not constitute a point of
entry for intervention in the proceeding.
(d) Notices to be published by the applicant shall be
published in newspapers of general circulation within
counties crossed by the natural gas transmission pipe-
line corridors proper for certification. The required news-
paper notices, other than the reminder notice, shall be
one-half page in size in a standard size newspaper or
a full page in a tabloid size newspaper and published in
a section of the newspaper other than the legal notices
section. These notices shall include a map generally
depicting all natural gas transmission pipeline corridors
proper for certification. A newspaper of general circula-
tion shall be the newspaper within a county crossed by
a natural gas transmission pipeline corridor proper for
certification, which newspaper has the largest daily cir-
culation in that county and has its principal office in that
county. If the newspaper with the largest daily circula-
tion has its principal office outside the county, the
notices shall appear in both the newspaper having the
largest circulation in that county and in a newspaper
authorized to publish legal notices in that county.
(e) The department shall publish in the Florida
Administrative Weekly notices of the application; of the
certification hearing; of the hearing before the board,
and of stipulations, proposed agency action, or petitions
for modification.
(f) The department shall adopt rules specifying the
content of notices required by this section. All notices
published by the applicant shall be paid for by the appli-
cant and shall be in addition to the application fee.
(2) No later than 215 days alter receipt of a complete
application by the department, the hearing officer shall
conduct a certification hearing pursuant to s. 120.57 at
a central location in proximity to the proposed natural
gas transmission pipeline or corridor. One public hearing
where members of the public who are not parties to the
certification hearing may testify shall be held within the
boundaries of each county, at the option of any local
government. The local government shall notify the hear-
ing officer and all parties not later than 50 days after the
receipt of a complete application as to whether the local
government wishes to have such a public hearing. The
local government shall be responsible for determining
the location of the public hearing. Within 5 days alter
such notification, the hearing officer shall determine the
date of such public hearing, which shall be held before
or during the certification hearing. In the event two or
more local governments within one county request such
a public hearing, the hearing shall be consolidated so
that only one such public hearing is held in any county.
The location of a consolidated hearing shall be deter-
mined by the hearing officer. If a local government does
not request a public hearing within 50 days after the
receipt of a complete application, persons residing
within the jurisdiction of such local government may tes-
tily at the public hearing portion of the certification hear-
ing.
(3)(a) At the conclusion of the certification hearing,
the hearing officer shall, after consideration ot all evi-
dence of record, issue a recommended order disposing
of the application no later than 60 days after the tran-
script of the certification hearing and the public hearings
is filed with the Division of Administrative Hearings. The
recommended order shall include findings of fact and
1210
-------
s. 403.9411
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.9412
conclusions ol law to enable the board to effect the bal-
ance in s. 403.9415(4).
(b) Any exceptions to a recommended order shall be
filed 'with the clerk of the department, within 15 days
after the date the order is rendered.
(4)(a) Parties to the proceeding shall be:
1. The applicant.
2. The department.
3. The commission.
4. The Department of Community Affairs.
5. The Department of Natural Resources.
6. The Game and Fresh Water Fish Commission.
7. Each water management district in the jurisdic-
tion of which the proposed natural gas transmission
pipeline or corridor is to be located.
8. The local government.
9. The regional planning council.
10. The Department of Transportation.
11. The Department of State, Division of Historical
Resources.
(b) Any party listed in paragraph (a), other than the
department or the applicant, may waive its right to par-
ticipate in these proceedings. If any listed party fails to
file a notice of its intent to be a party on or before the
30th day prior to the certification hearing, such party
shall be deemed to have waived its right to be a party.
(c) Notwithstanding the provisions of chapter 120 to
the contrary, upon the filing with the hearing officer of
a notice of intent to be a party by an agency, corpora-
tion, or association described in subparagraph 1. or sub-
paragraph 2.. or a petition for intervention by a person
described in subparagraph 3.. no later than 30 days prior
to the date set for the certification hearing, the following
shall also be parties to the proceeding:
1. Any agency not listed in paragraph (a) as to mat-
ters within its jurisdiction.
2. Any domestic nonprofit corporation or associa-
tion formed, in whole or in part, to promote conservation
of natural beauty; to protect the environment, personal
health, or other biological values; to preserve historical
sites; to promote consumer interests: to represent labor,
commercial, or industrial groups; or to promote compre-
hensive planning or orderly development of the area in
which the proposed natural gas transmission pipeline or
corridor is to be located.
3. Any person whose substantial interests are
affected and being determined by the proceeding.
4. Any agency whose properties or works might be
affected shall be made a party upon the request of the
agency or any party to this proceeding.
(5) At an appropriate time in the hearing, members
of the public who are not parties shall be given an oppor-
tunity to present unsworn oral or written communica-
tions to the hearing officer. The hearing officer shall give
parties an opportunity to challenge or rebut such com
municalions.
(6) The order of presentation at the certification hear-
ing, unless otherwise changed by the hearing officer to
ensure the orderly presentation of witnesses and evi-
dence, shall be:
(a) The applicant.
(b) The department.
(c) State agencies
(d) Regional agencies, including regional planning
councils and water management districts.
(e) Local governments.
(f) Other parties
(7) The applicant shall pay those expenses and
costs associated with the conduct of the hearings and
the recording and transcription of the proceedings.
HiMo«y.-s i. ch 92-284
¦Mot*.—Tne woro 'with" was subshiuieo lor the »imm t>y the eO'iors
403.9412 Alternate corridors.—
(1) No later than 50 days prior to the originally sched-
uled certification hearing, any party may propose alter-
nate natural gas transmission pipeline corridor routes for
consideration pursuant to ss. 403.9401-403.9425.
(a) A notice of any such proposed alternate corridor
shall be filed with the hearing officer, all parties, and any
local governments in whose jurisdiction the alternate
corridor is proposed. Such filing shall include the most
recent United States Geological Survey 1:24,000 quad-
rangle maps specifically delineating the corridor bound-
aries, a description of the proposed corridor, and a
statement of the reasons the proposed alternate corridor
should be certified.
(b) Within 7 days after receipt of such notice, the
applicant and the department shall file with the hearing
officer and all parties a notice of acceptance or rejection
of a proposed alternate corridor for consideration. If the
alternate corridor is rejected either by the applicant or
the department, the certification hearing and the public
hearings shall be held as scheduled. If both the appli-
cant and the department accept a proposed alternate
corridor for consideration, the certification hearing and
the public hearings shall be rescheduled, if necessary.
If rescheduled, the certification hearing shall be held no
later than 135 days after the previously scheduled certifi-
cation hearing, unless additional time is needed due to
the alternate corridor crossing a local government juris-
diction not previously affected, in which case the
remainder of the schedule listed in this section shall be
appropriately adjusted by the hearing officer to allow
that local government to prepare a report pursuant to s.
403.941 (2)(a)6.
(c) Notice pursuant to s. 403.9411(1 )(b) and (c) shall
be published.
(d) Within 25 days after acceptance of an alternate
corridor by the department and the applicant, the party
proposing an alternate corridor shall have the burden of
providing additional data to the agencies listed in s.
403.941 necessary for the preparation of a supplemen-
tary report on the proposed alternate corridor.
(e) If the department determines within 15 days that
this additional data is insufficient, the party proposing
the alternate corridor shall file such additional data that
corrects the insufficiency within 15 days after the filing
of the department's determination. If such additional
data is determined insufficient, such insufficiency of
data shall be deemed a withdrawal of the proposed
alternate corridor. The party proposing an alternate corri-
dor shall have the burden of proof on the certifiability,
pursuant to s. 403.9415(4), of the alternate corridor at
the certification hearing Sections 403.9401-403.9425
1211
-------
s. 403.9412
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.9415
do not require the applicant or agencies not proposing
the alternate corridor to submit data in support of such
alternate corridor.
(f) The agencies listed in s. 403.941 shall file supple-
mentary reports addressing the proposed alternate cor-
ridors no later than 45 days after additional data submit-
ted pursuant to paragraph (e) is determined sufficient.
The agencies shall submit supplementary notice pursu-
ant to s. 403.9416(2) at the time of filing of their supple-
mental report.
(g) The department shall prepare a written analysis
consistent with s. 403.941(3) at least 40 days prior to the
rescheduled certification hearing addressing the pro-
posed alternate corridor.
(2) If the original certification hearing date is res-
cheduled, the rescheduling shall not provide the oppor-
tunity for parties to file additional alternate corridors to
the applicant's proposed corridor or any accepted alter-
nate corridor. However, an amendment to the applica-
tion which changes the alignment of the applicant's pro-
posed corridor shall require rescheduling of the certifica-
tion hearing, if necessary, so as to allow time for a party
to file alternate corridors to the realigned proposed corri-
dor lor which the application has been amended. Any
such alternate corridor proposal shall have the same
starting and ending points as the realigned portion of
the corridor proposed by the applicant's amendment,
provided that the hearing officer for good cause shown
may authorize another starting or ending point in the
area of the applicant's amended corridor.
(3) Notwithstanding the rejection of a proposed
alternate corridor by the applicant or the department,
any party may present evidence at the certification hear-
ing to show that a corridor proper for certification does
not satisfy the criteria listed in s. 403.9415 or that a
rejected alternate corridor would meet the criteria set
forth in s. 403.9415. No evidence shall be admitted at the
certification hearing on any alternate corridor, unless the
alternate corridor was proposed by the filing of a notice
at least 50 days prior to the originally scheduled certifi-
cation hearing pursuant to this section. Rejected alter-
nate corridors shall be considered by the board as pro-
vided in s. 403.9415(4) and (5).
(4) If an alternate corridor is accepted by the appli-
cant and the department pursuant to a notice of accept-
ance as provided in this subsection and such corridor
is ultimately determined to be the corridor that would
meet the criteria set forth in s. 403.9415(4) and (5), the
board shall certify that corridor.
History. —s 1. cn 92-28*
403.9413 Amendment to the application.—
(1) Any amendment made to the application shall be
sent by the applicant to the hearing officer and to all par-
ties to the proceeding.
(2) Any amendment to the application made prior to
certification shall be disposed ol as part of the original
certification proceeding. Amendment ol the application
may be considered good cause fo' alteration of time lim-
its pursuant to s 403.9414.
History.—b 1 i.h
403.9414 Alteration of time limits.—Any time limita-
tion in ss. 403.9401-403.9425 may be altered by the
hearing officer upon stipulation between the department
and the applicant unless objected to by any party within
5 days after notice or for good cause shown.
History. —s. 1. en 92-284
403.9415 Final disposition of application.—
(1) Within 60 days alter receipt of the hearing offi-
cer's recommended order, the board shall act upon the
application by written order, approving in whole, approv-
ing with such conditions as the board deems appropri-
ate, or denying the certification and stating the reasons
for issuance or denial.
(2) The issues that may be raised in any hearing
before the board shall be limited to matters raised in the
certification proceeding before the hearing officer or
raised in the recommended order. All parties, or their
representatives, or persons who appear before the
board shall be subject to the provisions of s. 120.66.
(3) If certification is denied, the board shall set forth
in writing the action the applicant would have to take to
secure the approval of the application by the board.
(4) In determining whether an application should be
approved in whole, approved with modifications or con-
ditions, or denied, the board shall consider whether, and
the extent to which, the location of the natural gas trans-
mission pipeline corridor and the construction and main-
tenance of the natural gas transmission pipeline will
effect a reasonable balance between the need for the
natural gas transmission pipeline as a means of provid-
ing natural gas energy and the impact upon the public
and the environment resulting from the location of the
natural gas transmission pipeline corridor and the con-
struction, operation, and maintenance of the natural gas
transmission pipeline. In effecting this balance, the
board shall consider, based on all relevant, competent
and substantial evidence in the record, subject to s.
120.57(1 )(b) 10., whether and the extent to which the
project will:
(a) Ensure natural gas delivery reliability and integ-
rity;
(b) Meet the natural gas energy needs of the state
in an orderly and timely lashion;
(c) Comply with the nonprocedural requirements of
agencies;
(d) Adversely aflect historical sites and the natural
environment;
(e) Adversely affect the health, safety, and welfare
of the residents of the affected local government juris-
dictions;
(f) Be consistent with applicable local government
comprehensive plans and land development regula-
tions; and
(g) Avoid densely populated areas to the maximum
extent feasible. If densely populated areas cannot be
avoided, locate, to the maximum extent feasible, within
existing utility corridors or rights-of-way.
(5)(a) Any natural gas transmission pipeline corridor
certified by the board shall meet the criteria of this sec-
tion. When more than one natural gas transmission pipe-
line corridor is proper for certification pursuanl to s.
403.94055(2) and meets the criteria ol tnis section, the
board shall certify the natural gas transmission pipeline
corridor that has the least'adverse impact regarding the
criteria in subsection (4). including costs.
1212
-------
s. 403.9415
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.9416
(b) II the board finds that an alternate corridor
rejected pursuant to s. 403.9412 meets the criteria of
subsection (4) and has the least adverse impact regard-
ing the criteria in subsection (4) of all corridors that meet
the criteria of subsection (4), the board shall deny certifi-
cation or shall allow the applicant to submit an amended
application to include such corridor.
(c) If the board finds that two or more of the corridors
that comply with the provisions of subsection (4) have
the least adverse impacts regarding the criteria in sub-
section (4) and that such corridors are substantially
equal in adverse impacts regarding the criteria in sub-
section (4). the board shall certify the corridor preferred
by the applicant if the corridor is one proper for certifica-
tion pursuant to s. 403.94055(2).
(6) The issuance or denial of the certification by the
board shall be the final administrative action required as
to that application.
(7) Within 60 days after the date a certification
becomes final, an applicant which has been authorized
to locate a pipeline right-of-way within a certified corri-
dor shall pay to the department the appropriate postcer-
tification fee prescribed by s. 403.9421(2). Failure of an
applicant to pay its postcertification fee in a timely man-
ner shall be grounds for revocation of its authorization
to locate a pipeline right-of-way in the certified corridor.
(8) An applicant which has been authorized to
locate a pipeline right-of-way within a certified corridor
shall file documents with the department prior to con-
struction, identifying the location of the right-of-way
withm the certified corridor.
History. —s i.cn 92-284
403.9416 Effect of certification.—
(1) Subject to the conditions set forth therein, certifi-
cation shall constitute the sole license of the state and
any agency as to the approval of the location of a natural
gas transmission pipeline corridor and the construction
and maintenance of a natural gas transmission pipeline
therein. The certification shall be valid for the life of the
natural gas transmission pipeline. If construction on. or
condemnation or acquisition of, the right-of-way is not
commenced within 5 years after the date of certification
or such later date as may be authorized by the board,
the certification shall become void.
(2)(a) The certification shall authorize the applicant
to locate the natural gas transmission pipeline corridor
and to construct and maintain the natural gas transmis-
sion pipelines subject only to the conditions of certifica-
tion set forth in such certification.
(b) The certification may include conditions which
constitute variances and exemptions from nonprocedu-
ral standards or regulations of the department or any
other agency which were expressly considered during
the proceeding unless waived by the agency as pro-
vided in this paragraph and which otherwise would be
applicable to the location of the proposed natural gas
transmission pipeline corridor or the construction and
maintenance of the natural gas transmission pipelines.
Each party shall notify the applicant and other parties at
the time scheduled for the filing of the agency reports
ot any nonprocedural requirements not specifically
listed in the application from which a variance, exemp-
tion, exception, or other relief is necessary in order for
the board to certify any corridor proposed tor certifica-
tion. However, no variance shall be granted from stand-
ards or regulations of the department applicable under
any federally delegated or approved permit program,
except as expressly allowed in such program. Failure of
such notification shall be treated as a waiver from the
nonprocedural requirements of that agency.
(3) The certification shall be in lieu of any license,
permit, certificate, or similar document required by any
agency pursuant to. but not limited to, chapter 125,
chapter 161, chapter 163. chapter 166, chapter 186,
chapter 253, chapter 258. chapter 298, chapter 370,
chapter 372, chapter 373, chapter 376. chapter 377,
chapter 380, chapter 381, chapter 387, chapter 403, the
Florida Transportation Code, or 33 U.S.C. s. 1341. On
certification, any license, easement, or other interest in
state lands, except those the title to which is vested in
the Board of Trustees of the Internal Improvement Trust
Fund or a water management district created pursuant
to chapter 373, shall be issued by the appropriate
agency as a ministerial act. The applicant shall be
required to seek any necessary interest in state lands
the title to which is vested in the Board of Trustees of
the Internal Improvement Trust Fund from the board of
trustees or from the governing board of the water man-
agement district before, during, or after the certification
proceeding, and certification may be made contingent
upon issuance of the appropriate interest in realty. How-
ever, neither the applicant nor any party to the certifica-
tion proceeding may directly or indirectly raise or reliti-
gate any matter which was or could have been an issue
in the certification proceeding in any proceeding before
the Board of Trustees of the Internal Improvement Trust
Fund wherein the applicant is seeking a necessary inter-
est in state lands, but the information presented in the
certification proceeding shall be available for review by
the board of trustees and its staff.
(4) No term or condition of certification shall be inter-
preted to preclude the postcertification exercise by any
party of whatever procedural rights it may have under
chapter 120, including those related to rulemaking pro-
ceedings.
(5) A certification does not represent an exclusive
license limiting the number of natural gas transmission
pipelines which may be located within the geographical
boundaries of a certified corridor, nor shall it prevent a
natural gas transmission pipeline company which has
been issued a certificate of public convenience and
necessity under s. 7(c) of the Natural Gas Act, 15 U.S.C.
s. 7171, from obtaining permits from this state for the
construction of such pipeline within the geographical
area encompassed by a certified corridor, upon the sat-
isfaction of applicable permitting criteria. No term or
condition of an existing certification shall be interpreted
to preclude an applicant from submitting an application
for certification of a natural gas transmission pipeline
corridor which encompasses part or all of an existing
certified corridor.
(6) This act shall not in any way affect the right ol
any local government to charge appropriate fees.
History.-s ' e* 9?-26-
1213
-------
S. 403.9417
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
s. 403.9421
403.9417 Recording of notice of certified corridor
route.—Within 60 days after certification of a natural gas
transmission pipeline corridor pursuant to ss. 403 9401-
403.9425, the applicant shall file, in accordance with s.
28.222, with the clerk of the circuit court for each county
through which the corridor will pass, a notice of the certi-
fied route. The notice shall consist of maps or aerial pho-
tographs in the scale of 1:24,000 which clearly show the
location of the certified route and shall state that the cer-
tification of the corridor will result in the acquisition of
rights-of-way within the corridor. Each clerk shall rec-
ord the filing in the official record of the county for the
duration of the certification or until such time as the
applicant certifies to the clerk that all lands required for
the natural gas transmission pipeline rights-of-way
within the corridor have been acquired within such
county, whichever is sooner. The recording of this notice
shall not constitute a lien, cloud, or encumbrance on real
property.
History.—s 1.ch 92-284.
403.9418 Modification of certification.—A certifica-
tion may be modified after issuance in any one of the fol-
lowing ways:
(1) The board may delegate to the department the
authority to modify specific conditions in the certifica-
tion.
(2) The department may modify the terms and con-
ditions of the certification if no party objects in writing
to such modification within 45 days after notice by mail
to the last address of record in the certification proceed-
ing, and, if no other person whose substantial interests
will be affected by the modification objects in writing
within 30 days after issuance of public notice. If objec-
tions are raised, the applicant or department may file a
petition for modification with the department and the
Division of Administrative Hearings setting forth:
(a) The proposed modification:
(b) The factual reasons asserted for the modifica-
tion; and
(c) The anticipated additional environmental effects
of the proposed modification.
(3) Petitions filed pursuant to subsection (2) shall be
disposed of in the same manner as an application but
within the times established by the hearing officer com-
mensurate with the significance of the modification
requested.
History. —s l.cn 92-28^
403.9419 Enforcement of compliance.—Failure to
obtain a certification, to comply with the conditions of
certification, or to comply with ss. 403.9401-403.9425
shall constitute a violation of this chapter. The depart-
ment shall enforce compliance with the conditions of
certification issued under ss. 403.9401-403.9425, in
accordance with the provisions of ss. 403.061 and
403.121.
History. —s ) cn 92-284
403.942 Superseded laws, regulations, and certifi-
cation power —
(1) II any provision of ss. 403.9401-403 9425 is in
conlhcl with any other provision, limitation, or restriction
under any law. rule, regulation, or ordinance of (his slate
or any political subdivision, municipality, or agency, ss.
403.9401-403.9425 shall control and such law, rule, reg-
ulation, or ordinance shall be deemed superseded.
(2) The state preempts the certification and regula-
tion of natural gas transmission pipelines and natural
gas transmission pipeline corridors subject to ss.
403.9401-403.9425.
(3) The board shall have the power to adopt reason-
able procedural rules to carry out its duties under ss.
403.9401-403.9425 and to give effect to the legislative
intent that this act provide an efficient, centrally coordi-
nated, one-stop licensing process.
History.—s. V ch 92-28J
403.9421 Fees; disposition.—The department shall
charge the applicant the following fees, as appropriate,
which shall be paid into the Operating Trust Fund:
(1) An application fee of $240,000, plus $500 per
mile for each mile of natural gas transmission pipeline
corridor proposed to be located in an existing electrical
transmission line right-of-way or in existing rights-of-
way for roads, highways, railroads, gas. water, oil.
sewer, or any other public purpose, and $1,000 per mile
for each mile of natural gas transmission pipeline pro-
posed to be located outside existing rights-of-way, not
to exceed a total fee of $890,000.
(2) A postcertification fee determined as follows:
(a) For pipelines of 50 miles or less in total length,
the fee shall be $75,000.
(b) For pipelines of between 50 and 150 miles in total
length, the lee shall be $125,000.
(c) For pipelines of a total length greater than 150
miles, the fee shall be $175,000.
(3) An application amendment fee which shall apply
only when a corridor alignment change is proposed by
an applicant prior to the issuance of the department's
written analysis as to a proposed corridor.
(a) The fee shall be $5,000 plus S500 for each mile
of natural gas transmission pipeline corridor proposed to
be located in an existing electrical transmission line
right-of-way or in existing rights-of-way for roads, high-
ways, railroads, gas, water, oil, sewer, or any other pub-
lic purpose, and $1.000 per mile for each mile of natural
gas transmission pipeline proposed to be located out-
side existing rights-of-way.
(b) No fee shall be required if an applicant adopts an
alternate corridor alignment which is timely proposed
under s. 403.9412.
(4) A certification modification fee determined as fol-
lows.
(a) If no corridor alignment change is involved, the
fee shall be $10,000.
(b) If a corridor alignment change is proposed, the
fee shall be $10,000 plus $500 for each mile of natural
gas transmission pipeline corridor proposed to be
located in an existing electrical transmission line right-
ol-way or m existing rights-of-way for roads, highways,
railroads, gas, water, oil, sewer, or any other public pur-
pose. and $1,000 per mile for each mile of natural gas
transmission pipeline proposed to be located outside
existing rights-of-way.
(5) In administering fee revenues received undei
this section, the department shall allocate the funds as
follows.
1214
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s. 403.9421 1992 SUPPLEMENT TO FLORIDA STATUTES 1991 s. 403.942 ;
(a) The department shall retain (ee revenues to be
utilized as follows:
1. Filty percent of the fees specified under this sec-
tion. except for postcertification fees, 6hall be retained
by the department to cover its costs associated with
reviewing and acting upon applications and requests for
modification of certification.
2. Sixty percent of postcertification fees shall be
retained by the department exclusively to cover its costs
associated with postcertification review of natural gas
transmission pipeline rights-of-way which are estab-
lished, constructed, and maintained under certification
issued under ss. 403.9401-403.9425.
(b) Sixteen percent of the fees specified under this
section, except for postcertification fees, shall be trans-
ferred to the Administrative Trust Fund of the Division of
Administrative Hearings to cover its costs associated
with reviewing and hearing applications, amendments,
modifications, and disputes related to ss. 403.9401-
403.9425.
(c) The balance of fees remaining shall be used by
the department to reimburse affected agencies
included in s. 403.941(2)(a) for costs incurred in applica-
tion and postcertification review, respectively.
1. For application processing costs, upon presenta-
tion by an affected agency of a proper itemized account-
ing within 90 days after the date of the board's order
approving certification or the date on which a pending
application is otherwise disposed of, the department
shall reimburse the agencies for authorized costs from
the fee balances remaining. Such reimbursement shall
be authorized for studies and the preparation of any
reports required of the agencies by ss. 403.9401-
403.9425, for agency travel and per diem to attend any
hearing held, and for participation in the proceedings. In
the event the amount available for allocation is insuffi-
cient to provide for complete reimbursement to the
agencies, reimbursement shall be on a prorated basis.
If any sums are remaining, the department shall retain
them for use in the same manner as is otherwise author-
ized by this section; however, if the certification applica-
tion is withdrawn, the remaining sums shall be refunded
to the applicant within 120 days after withdrawal.
2. For postcertification costs, an invoice may be
submitted on an annual basis, commencing from the
date of certification, for expenses incurred by affected
agencies conducting postcertification review work pur-
suant to the conditions of certification. In the event the
amount available for allocation is insufficient to provide
lor complete reimbursement to the agencies, reimburse-
ment shall be on a prorated basis.
History. — s l.cn 92-2Q4
403.9422 Determination of need (or natural gas
transmission pipeline; powers and duties.—
(1)(a) Upon request by an applicant or upon its own
motion, the commission shall schedule a public hearing,
after notice, to determine the need for a natural gas
transmission pipeline regulated by ss. 403.9401-
403.9425. Such notice shall be published at least 45
days before the date set for the hearing and shall be
published in at least one-quarter page size in newspa-
pers ol general circulation and in the Florida Administra-
tive Weekly, oy giving notice to counties and regional
planning councils in whose jurisdiction the natural gas
transmission pipeline could be placed, and by giving
notice to any persons who have requested to be placed
on the mailing list of the commission tor this purpose.
Within 21 days after receipt of a request for determina-
(ion by an applicant, the commission shall set a daie for
the hearing. The hearing shall be held pursuant to s.
350D1 within 75 days after the filing of the request, and
a decision shall be rendered within 90 days after such
filing.
(b) ki the determination of need, the commission
shall take into account the need for natural gas delivery
reliability, safety, and integrity: the need for abundant,
clean-burning natural gas to assure the ecdnomic well-
being of the public; the appropriate commencement and
terminus of the line; and other matters within its jurisdic-
tion deemed relevant to the determination of need.
(c) The commission shall be the sole forum for the
determination of need. The determination by the com-
mission of the need for the natural gas transmission
pipeline is binding on all parties to any certification pro-
ceeding pursuant to ss 403.9401-403.9425 and is a
condition precedent to the conduct of the certification
hearing prescribed therein. An order entered pursuant
to this section constitutes final agency action.
(d) For pipelines regulated under the Natural Gas
Act, 15 (J SC. s. 717f et seq.. a certificate of public
convenience and necessity under s. 7(c) of the Natural
Gas Act is considered equivalent to the determination
of need by the commission for all purposes under ss.
403.9401-403.9425. notwithstanding any provision in
paragraph (c) to the contrary.
(2) The commission shall have the following powers
and duties:
(a) To adopt or amend reasonable procedural rules
to implement the provisions of this section.
(b) To prescribe the form, content, and necessary
supporting documentation and the required studies for
the determination of need.
(3) Any time limitation in this section may be altered
by the commission upon stipulation between the com-
mission and the applicant or for good cause shown by
any party.
Hiftory -s i.ch 92-2B4
403.9423 Certification admissible in eminent
domain proceedings; attorney's fees and costs.—
(1) Certification pursuant to ss. 403.9401-403.9425
shall be admissible as evidence of public need and
necessity in proceedings under chapter 73 or chapter
74.
(2) No party may rely on this section or any provision
of chapter 73 or chapter 74 to request the award of attor-
ney's fees or costs incurred as a result of participation
in the certification proceeding.
History. — s i.cn 92-28*)
403.9424 Local governments; informational public
meetings.—
(1) Local governments may hold informational public
meetings in addition to the hearings specifically author-
ized by ss. 403.9401 -403 9425 on any matter associated
with the natural gas transmission pipeline siting pro-
1215
-------
s. 403.9424
1992 SUPPLEMENT TO FLORIDA STATUTES 1991
5. 404.056
ceedirig. Such informational public meetings should be
held no later than 80 days after (he complete application
is filed. The purpose of an informational public meeting
is for the local government to further inform the public
about the natural gas transmission pipeline proposed,
obtain comments from the public, and formulate its rec-
ommendation with respect to the proposed natural gas
transmission pipeline. Neither the meetings held nor the
recommendations made by the local government pursu-
ant to this section shall address the need for the pipe-
line.
(2) Informational public meetings shall be held solely
at the option of each local government. It is the legisla-
tive intent that local governments attempt to hold such
public meetings. Parties to the proceedings under ss.
403.9401-403.9425 shall be encouraged to attend; how-
ever, no party shall be required to attend such informa-
tional public meetings.
(3) The failure to hold an informational public meet-
ing or the procedure used for the informational public
meeting shall not be grounds for the alteration of any
time limitation in ss. 403.9401-403.9425 pursuant to s.
403.9414 or grounds to deny or condition certification.
History. —s l.ch 92-284
403.9425 Revocation or suspension of certification.
Any certification may be revoked or suspended:
(1) For any material false statement in the applica-
tion or in the supplemental or additional statements of
fact or studies required of the applicant when a true
answer would have warranted the board's refusal to rec-
ommend a certification in the first instance.
(2) For failure to comply with the terms or conditions
of the certification.
(3) For violation of the provisions of ss. 403.9401-
403.9425 or rules or orders issued thereunder.
History. —s I. en 92-264
CHAPTER 404
RADIATION
404.056 Environmental radiation standards and pro-
grams; radon protection.
,404.056 Environmental radiation standards and
programs; radon protection.—
(1) STANDARDS.—To preserve and protect the
public health, the department is authorized to establish,
by ru'e. environmental radiation standards for buildings,
and to conduct programs designed to reduce human
exposuie to such harmful environmental radiation. In the
establishment of such standards, the department shall
consider.
(a) Existing federal standards or guidelines.
(&} Ti.e recommendations of nationally recognized
boc:dS v.incn are expert in the field of radiation protec-
tion.
(c) The radiation effect of water supplies.
(d) The use made, or to be made, of the land for resi-
dential' dwellings, public or private schools, health care
facilities, ot other purposes.
(e) The availability of measures to mitigate the effect
of the radiation.
For the purposes of this section, "building" means any
structure that encloses space used for sheltering any
occupancy. Each portion of a building separated from
cither portions by a firewall shall be considered a sepa-
rate building.
2(2) FLORIDA COORDINATING COUNCIL ON
RADON PROTECTION —
(a) Establishment.—It is declared to be in the best
interest of the state that public agencies responsible for
and involved in radon protection activities work together
to reduce duplication of effort, foster maximum efficient
use of existing resources, advise and assist the agen-
cies involved in radon protection and mitigation in imple-
menting the best management practices and the best
available technology in limiting exposure to radon, iden-
tify outside funding sources and recommend priorities
for research into the effects of radon, and enhance com-
munication between all interests involved in radon pro-
tection and mitigation activities. Therefore, the Florida
Coordinating Council on Radon Protection is hereby
established as an advisory body, as defined in s.
11.61 l(3)(a), to the Department of Community Affairs in
developing the construction and mitigation standards
required by s. 553.98 and to the Department of Health
and Rehabilitative Services in developing the public
information program on radon and radon progeny as
required by 3subsection (5).
(b) Membership.—The Florida Coordinating Council
on Radon Protection shall be composed of the following
representatives or their authorized designees:
1. The Secretary of Community Affairs;
2. The Secretary of Health and Rehabilitative Ser-
vices;
3. The Commissioner of Education or a representa-
tive of the Office of Educational Facilities:
4. An expert in the mitigation or prevention of
radon, the development of building codes designed to
control and abate radon, or the development of con-
struction techniques to mitigate the effects of radon in
existing buildings, one representative of one of these
fields to be jointly appointed by the University of South
Florida and Florida Agricultural and Mechanical Univer-
sity, and one representative of one of these fields to be
appointed by the University of Florida. Two representa-
tives from any of these fields shall be appointed by the
Board of Regents from other universities in the state;
5. One representative each from the Florida Associ-
ation of the American Institute of Architects, the Florida
Engineering Society, the Associated General Contrac-
tors Council, the Florida Association of Counties, the
Florida League of Cities, the Florida Association ol Real-
tors. the Florida Home Builders Association, and the
Florida Phosphate Council: and an elected official of
county government, to be appointed by the Association
of Counties; and an elected official of city government,
to be appointed by the League of Cities:
6. One representative each from two recognized
voluntary health agencies to be appointed by the Secre-
tary of Health and Rehabilitative Services: and
1216
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tO£iDA
PET' 1996 UNDERGROUND STORAGE TANK SYSTEMS 62-761
CHAPTER 62-761
Underground Storage Tank Systems
62-761.100 Intent.
62-761.200 Definitions.
62-761.210 Reference Standards.
62-761.300 Applicability.
62-761.400 Registration and Registration Fees.
62-761.410 Registration Fees. (Repealed)
62-761.450 Notification and Financial Responsibility.
62-761.460 Reporting. (Repealed)
62-761.480 Financial Responsibility. (Repealed)
62-761.500 Performance Standards for New Storage Tank Systems.
62-761.510 Performance Standards for Existing Storage Tank Systems.
62-761.520 Performance Standards for Other Existing Petroleum and
Petroleum Product StorageTank Systems (Non-Vehicular Fuels).
(Repealed)
62-761.550 Performance Standards for New Hazardous
Substance Storage Tank Systems. (Repealed)
62-761.560 Performance Standards for Existing Hazardous
Substance Storage Tank Systems. (Repealed)
62-761.600 General Release Detection Standards.
62-761.610 Release Detection Standards.
62-761.620 Release Detection Standards for Other Regulated Substance
Storage Tanks. (Repealed)
62-761.630 Release Detection Standards for Integral Piping. (Repealed)
62-761.640 Performance Standards for Release Detection Methods.
62-761.680 Tightness Testing Standards. (Repealed)
62-761.700 Repairs, Operation and Maintenance of Storage Tank Systems.
62-761.710 Record Keeping and Inventory Requirements.
62-761.720 Inventory Requirements. (Repealed)
62-761.730 Operating Requirements for Cathodic Protection. (Repealed)
62-761.740 Certified Contractors. (Repealed)
62-761.800 Out of Service and Closure Requirements.
62-761.820 Discharge Reporting and Response.
62-761.840 Locally Administered Programs. (Repealed)
62-761.850 Equipment Approval and Alternate Procedures.
62-761.860 Approval of Storage Tank Systems and Release Detection
Equipment. (Repealed)
62-761.900 Forms.
62-761.100 Intent. The purpose of this rule is to provide standards for the
construction, installation, maintenance, registration, removal and disposal of
underground storage tank systems, which consist of underground tanks and their
Effective 9-30-96
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UNDERGROUND STORAGE TANK SYSTEMS
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on-site integral piping systems and associated release detection, which store
regulated substances and which have individual storage tank capacities of greater
than 110 gallons,. This rule implements the requirements of Chapter 376, Florida
Statutes. Final agency action related to the functions which may be carried out by
a locally administered program under contract with the Department pursuant to
Section 376.3073, F.S., shall be taken by the Department.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Formerly 17-761.100, Amended 7-30-96.
62-761.200 Definitions. The definitions found in Florida Statutes 376.301
are adopted herein, including those definitions for the terms "facility", "pollutant"
and "discharge". In addition, the following words, phrases or terms used in this
rule, unless the context indicates otherwise, shall have the following meaning:
(1) "Ammonia" includes all liquid organic amines and all inorganic liquid
preparations which, when discharged, release free ammonia (NH3), or ammonium
ion (NH4 +).
(2) "Cathodic protection" means a method of preventing corrosion of a
metal surface by making that surface the cathode of an electrochemical celt
through the use of devices such as galvanic anodes or impressed current.
(3) "Cathodic protection tester" means a person who can demonstrate an
understanding of the principles and measurements of all common types of
cathodic protection systems as applied to buried or submerged metal piping and
tank systems. At a minimum, such persons shall have education and experience
in soil resistivity, stray current, structure-to-soil potential, and component electrical
isolation measurements of buried metal piping and tank systems.
(4) "Certified Contractor" means a Pollutant Storage System Specialty
Contractor certified by the Department of Professional Regulation to meet the
requirements of Section 489.113, F.S. The following activities relating to a
storage tank system which contains or contained pollutants shall be performed by
a certified contractor:
(a) installation of a tank or integral piping;
(b) removal of a tank or integral piping;
(c) lining of a storage tank;
(d) installation of secondary containment;
(e) installation of overfill protection and spill containment;
(f) installation of in-tank automatic inventory recordkeeping devices;
(g) installation of in-tank leak detection monitoring devices;
(h) installation of cathodic protection systems; and
(I) installation-of dispenser liners.
(5) "Chlorine" includes all liquid organic and inorganic compounds in liquid
form which, when discharged, may release free chlorine (C1 or C1 2>-
(6) "Compatible" means the ability of two or more substances to maintain
their respective physical and chemical properties upon contact with one another
Effective 9-30-96
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UNDERGROUND STORAGE TANK SYSTEMS
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for the design life of the storage tank system under conditions likely to be
encountered in the storage tank system.
(7) "Composite tank" means a steel underground tank which has been
coated with a fiberglass reinforced plastic composite, or other acceptable coatina
approved and built to specifications under UL 1746, ACT 100, or STI-F894-89.
(8) "Corrosion professional" means a person who, by reason of thorough
knowledge of the physical sciences and the principles of engineering and
mathematics acquired by a professional education and related practical experience,
is qualified to engage in the practice of corrosion control on buried or submerged
metal components of a storage tank system. Such a person shall be accredited or
certified as being qualified by the National Association of Corrosion Engineers or
be a registered professional engineer.
(9) "Dielectric material" means a material that does not conduct direct
electrical current.
(10) "Discovery" means either actual knowledge or knowledge of facts
which could reasonably lead to actual knowledge of the existence of a discharge
or an unmaintained storage tank system.
(11) "Double walled tank" means an approved UL storage tank with 360c
containment of a primary inner-tank that is also UL approved.
(12) "Existing storage tank system" means a storage tank system used to
contain pollutants for which installation has begun before the effective date of this
rule or which contains hazardous substances, for which installation has begun on
or before June 30, 1992. Installation Is considered to have commenced if:
(a) The owner or operator has obtained all federal, state, and local
approvals or permits necessary to begin physical construction of the site or
installation of the tank system; and
(b) Either a continuous on-site physical storage tank system construction
or installation program has begun or the owner or operator has entered into
contractual obligations, which cannot be cancelled or modified without substantial
loss, for physical storage tank system construction at the site or installation of a
storage tank system to be completed within a reasonable time.
(13) "Flow-through process tank" is a tank that forms an integral part of a
production process through which there is a steady, variable, recurring, or
intermittent flow of materials during the operation of the process. Flow-through
process tanks do not include storage tanks used for the storage of regulated
substances before their introduction into the production process or for the storage
of finished products or by-products from the production process.
(14) "Hazardous substance storage tank system" means a storage tank
system that contains a hazardous substance defined in Section 101(14) of the
federal Comprehensive Environmental Response, Compensation and Liability Act of
1980 (but not including any substance regulated as a hazardous waste under
Subtitle C of the Resource Conservation and Recovery Act), ammonia, chlorine,
pesticides and their derivatives, or any mixture of such substances and petroleum
or petroleum products, and which is not b petroleum underground storage tank
system.
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(15) "Heating oil" means any petroleum based fuel used in the operation of
heating equipment, boilers, or furnaces.
(16) "Hydraulic lift tank" means a tank that holds hydraulic fluid for a
closed-loop mechanical system used to operate lifts, elevators, and other similar
devices.
(17) "In-service" means a storage tank system that contains regulated
substances or has regulated substances regularly added to or withdrawn from the
system.
(18) "Integral piping" means all continuous, on-site piping up to and
including the dispenser shear valve or the union of the piping and dispenser, and
all other valves, elbows, joints, flanges, and flexible connectors attached to a
storage tank system through which regulated substances flow.
(19) "Liner" means an impervious material, excluding clay, that meets the
performance standards of Rule 62-761.500(7), F.A.C., that is used as a method o(
secondary containment to prevent a discharge of any regulated substance from a
storage tank system.
(20) "Liquid trap" means sumps, well cellars, and other traps used in
association with oil and gas production, gathering and extraction operations
(including gas production plants) to collect oil, water, and other liquids. These
liquid traps may temporarily collect liquids for subsequent disposition or reinjection
into a production or pipeline stream, or may collect and separate liquids from a gas
stream.
(21) "Maintenance" means the normal operational upkeep to prevent a
storage tank system from releasing regulated substances.
(22) "New hazardous substance storage tank system" means a hazardous
substance storage tank system for which installation began on or after January 1,
1991.
(23) "New petroleum storage tank system" means a petroleum storage tank
system for which installation began after June 30, 1992.
(24) "Non-residential" means that the storage tank system is not used at a
dwelling.
(25) "Operational life" refers to the period from the start of installation of
the storage tank system to the closure of the storage tank system.
(26) "Out of service" means a storage tank system that has been emptied
of regulated substances and no longer has regulated substances regularly added to
or withdrawn from the system, and that is intended to be returned to service
within two years of taking the storage tank system out of service. The storage
tank system is empty when all regulated substances have been removed so that
no more than one inch in depth or 0.3 percent by weight of total system capacity
of regulated substances remains in the storage tank system.
(27) "Overfill" is a discharge that occurs when a lank is filled beyond its
capacity.
(28) "Pesticides" means all preparations, products, and substances included
in the Department of Agriculture and Consumer Services' Rule 5E-2.002, F.A.C.
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(29) "Petroleum storage tank system" means a storage tank system that
contains petroleum or petroleum product or a mixture of petroleum or petroleum
product with small quantities (de minimis, as per 40 CFR Section 280.12) of other
regulated substances.
(30) "Pipe" means any hollow cylindrical or tubular conveyance which is
constructed of approved non-earthen materials (e.g., cathodically protected metal,
plastic or fiberglass) and through which regulated substances are designed to
flow.
(31) "Pipeline facilities" are new and existing pipe rights-of-way and any
associated equipment, gathering lines, facilities, or buildings.
(32) "Regulated substance" means (a) any pollutant, or (b) any substance
defined in Section 101(14) of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) of 1980 (but not including any
substance regulated as a hazardous waste under Subtitle C of the Resource
Recovery and Conservation Act), that is liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch
absolute).
(33) "Release" means "discharge" as that term is defined in Chapter 376,
F.S.
(34) "Release detection" means a method of determining whether a
discharge of a regulated substance has occurred from the storage tank system into
the environment or into the interstitial space between a storage tank system and
its secondary containment.
(35) "Repair" means the repair or replacement of any damaged parts of a
storage tank system to meet the standards contained In Rule 62-761.700, F.A.C.
(36) "Secondary Containment" means a system that is used to improve
release detection and release prevention, and Includes a double walled tank, a
double walled integral piping system or a single walled tank or integral piping
system that is protected by an outside liner. For cathodically protected tanks and
integral piping, the secondary containment shall not interfere with the cathodic
protection system.
(37) "Significant loss or gain" means a loss or gain of a regulated substance
from a storage tank system which exceeds one percent of the storage system
capacity, one percent of the total weekly output, or 50 gallons, whichever is
greater.
(38) "Storage Tank System" means an underground storage tank with all
integral piping and release detection components.
(39) "Tank" means an enclosed underground stationary device which is
constructed primarily of approved, non-earthen materials that provides structural
support, which is designed or used to store regulated substances, and the volume
of which (including the volume of underground pipes connected thereto) is 10
percent or more beneath the surface of the ground.
(40) "Tightness test" means a precision test performed in accordance with
Rule 62-761.640(9), F.A.C., in order to determine the integrity of a storage tank
Effective 9-30-96
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UNDERGROUND STORAGE TANK SYSTEMS
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system by a tank tester registered with the Department of Professional Regulation
under Section 489.113, F.S.
(41) "Underground area" means an underground room, such as a basement,
cellar, shaft or vault, providing enough space for physical inspection of the exterior
of the tank situated on or above the floor.
(42) "Unmaintained" means a storage system which has been emptied of
regulated substances and no longer has regulated substances regularly added to or
withdrawn from the system, and which Is not returned or intended to be returned
to in-service status within 2 years of its being in service.
(43) "Vehicular fuel" means a petroleum product used to fuel a motor
vehicle, including but not limited to those used on and off roads, aircraft, rail and
watercraft.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.— New 12-10-90, Amended 5-4-92; 3-7-94,
Formerly 17-761.200, Amended 9-30-96.
62-761.210 Reference Standards.
(1) Referenced standards are available for inspection at the Department of
Environmental Protection's District and Tallahassee Offices and from the following
sources:
(a) American Petroleum Institute (API), 1220 L Street, N.W. Washington,
D.C. 20005, (202)682-8372;
(b) American Society for Testing and Materials (ASTM), 1916 Race Street,
Philadelphia, Pennsylvania.19103 (215)299-5400;
(c) Association for Composite Tanks (ACT), 108 North State Street, Suite
720, Chicago, Illinois 60602, (301)235-6000;
(d) National Association of Corrosion Engineers (NACE), P.O. Box 218340,
Houston, Texas 77218, (713)492-0535;
(e) National Fire Protection Association (NFPA), Batterymarch Park,
Quincy, Massachusetts 02269, (800)344-3555;
(f) Petroleum Equipment Institute (PEI), Post Office Box 2380, Tulsa,
Oklahoma 74101, (918)494-9696;
(g) Steel Tank Institute (STI), 570 Oakwood Road, Lake Zurich, Illinois
60047, (708)438-8265; and
(h) Underwriters Laboratories (UL), 333 Pfingsten Road, Northbrook,
Illinois 60062, (708)272-8800.
(2) Titles of documents.
Specific references to documents listed in. (a) through (i) below are made
throughout this Chapter. Each of these documents or parts thereof are adopted
and incorporated as standards only to the extent that they are specifically
referenced in this Chapter...
(a) American Petroleum Institute Standards:
1. RP 1604, 1987 as supplemented March 6, 1989, "Removal and
Disposal of Used Underground Petroleum Storage Tanks";
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UNDERGROUND STORAGE TANK SYSTEMS
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2. RP 1615, 1987 as supplemented March 6, 1989, "Installation of
Underground Petroleum Product Storage Systems";
3. RP 1621, 1987 as supplemented March 6, 1989,. "Bulk Liquid Stock
Control at Retail Outlets";
4. RP 1631, 1987, "Interior Lining of Underground Storage Tanks";
5. RP 1632, 1987 as supplemented, March 6, 1989, "Cathodic Protection
of Underground Petroleum Storage Tanks and Piping Systems"; and
6. RP 1637, 1986 "Using the API Color-Symbol System to Mark
Equipment and Vehicles for Product Identification at Service Stations and
Distribution Terminals".
(b) American Society for Testing and Materials Specification D4021-86,
"Standard Specification for Glass Fiber Reinforced Polyester Underground
Petroleum Storage Tanks".
(c) Association for Composite Tanks ACT-100 "Specifications for the
Fabrication of FRP Clad Underground Storage Tanks".
Id) Code of Federal Regulations, Title 40, Part 280.
(e) National Association of Corrosion Engineers:
1. Standard Number RP-0169-83 "Controj of External Corrosion on
Underground or Submerged Metallic Piping Systems" (1983); and
2. Standard Number RP-0285-85 "Control'of External Corrosion on
Metallic Buried, Partially Buried, or Submerged Liquid Storage Systems" (1985).
(f) National Fire Protection Association: Standard Number 30, "Flammable
and Combustible Liquids Code" (1987).
(g) Petroleum Equipment Institute Publication PEI/RP100-87
"Recommended Practices for Installation of Underground Liquid Storage Systems"
(1987).
(h) Steel Tank Institute:
1. STI Specification for STI-P3 System of External Corrosion Protection of
Underground Steel Storage Tanks, (1983);
2. STI R892-89, "Recommended Practice for Corrosion Protection of
Underground Piping Networks Associated with Liquid Storage and Dispensing
Systems", and;
3. STI F894-89, "Specification for External'Corrosion Protection of FRP
Composite Steel Underground Storage Tanks".
(i) Underwriters Laboratories Standards:
1. Standard 58 "Steel Underground Tanks for Flammable and Combustible
Liquids" (1981);
2. "Standard 567, "Pipe Connectors for Flammable, Combustible and LP
Gas";
3. UL Subject 971, "UL Listed Non-Metal Pipe";
4. Standard 1316, "Standard for Glass Fiber Reinforced Plastic
Underground Storage Tanks for Petroleum Products"; and
5. Standard 1746, "Corrosion Protection Systems for Underground
Storage Tanks" (1989).
Specific Authority 376.303, FS.
Effective 9-30-96
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UNDERGROUND STORAGE TANK SYSTEMS
62-761
Law Implemented 376.303, FS.
History - New 12-10-90, Formerly 17-761.210.
62-761.300 Applicability.
(1) The requirements of this Chapter apply to all owners and operators of
facilities with an underground storage tank system that contains regulated
substances.
(2) The following systems are exempt from the requirements of this
Chapter:
(a) Any storage tank system holding any hazardous waste listed or
identified under Subtitle C of the Resource Conservation and Recovery Act, or a
mixture of such hazardous waste and other regulated substances;
(b) Any wastewater treatment tank system that is part of a wastewater
treatment facility or an evaporation/degradation system for pesticide equipment
rinse water regulated under Rule 62-660, F.A.C.;
(c) Equipment or machinery that contains regulated substances for
operational purposes such as hydraulic lift or fluid tank systems and electrical
equipment tank systems;
(d) Any storage tank system whose individual capacity is 110 gallons or
less;
(e) Any storage tank system that contains small quantities (de minimus, as
per 40 CFR Section 280.12) of regulated substances;
(f) Any emergency spill or overflow containment storage tank system that
is emptied as soon as possible after use;
(g) Any agricultural storage tank system of 550 gallons or less capacity;
(h) Any storage tank system used for storing heating oil for consumptive
use on the premises where stored;
(i) Any septic tank system;
(j) Any pipeline facility;
(k) Any surface impoundment, pit, pond, or lagoon;
(I) Any stormwater or wastewater collection system;
(m) Any flow-through process tank system;
(n) Any liquid trap or associated gathering lines directly related to oil or
gas production and gathering operations;
(o) Any storage tank system situated in an underground area if the storage
tank is situated upon or above the floor;
(p) Any residential storage tank system;
(q) Any facility covered by Section 376.011-376.21, F.S., except for
marine fueling facilities with underground tank systems where the facility has no
individual tank with a capacity greater than 30,000 gallons;
(r) Any storage tank system regulated by Chapter 377, F.S.;
(s) Any storage tank system storing solid or gaseous pollutants;
(t) Any storage tank system that is part of an emergency generator
system at nuclear power generation facilities regulated by the Nuclear Regulatory
Commission under 10 CFR Part 50 Appendix A; or
Effective 9-30-96
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UNDERGROUND STORAGE TANK SYSTEMS
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(u) Airport hydrant piping regulated by Rule 62-762, F.A.C.
(3) The requirements of this rule shall supercede Chapter 62-61, F.A.C.,
upon the effective date of this rule.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History-- New 12-10-90, Formerly 17-761.300.
62-761.400 Registration and Registration Fees.
(1) The owner of any in-service, out of service or unmaintained storage
tank system which has a capacity of greater than 110 gallons shall register the
storage tank system with the Department on DEP Form 62-761.900(2). A
complete registration form shall be submitted to the Department at least 10 days
before the start of installation. The owner of an existing storage tank system not
previously required to register with the Department shall register the storage tank
system no later than 90 days after the effective date of this Chapter.
(2) Registration fees are due from the storage tank owner as indicated in
this subsection for all registered in-service, out of service and unmaintained
facilities. Pursuant to federal law, federally owned or operated facilities are not
required to pay registration fees.
(3) A registration fee of $50.00 per tank shall be submitted for each initial
registration of a storage tank system. The fee shall be paid within 30 days after
receipt of notification by the Department.
(4) A renewal fee of $25.00 per tank for each storage tank system not
meeting the closure requirements in Rule 62-761.800, F.A.C., shall be submitted
by July 1 each year.
(5) A replacement fee of $25.00 per tank shall be submitted for each tank
that is replaced for the purpose of facility upgrading. The fee shall be paid within
30 days after receipt of notification by the Department.
(6) A late fee of $20.00 per tank shall be collected for any renewal that Is
received after July 31.
(7) Each facility shall receive a registration placard upon payment of all
applicable fees. The placard shall be displayed in plain view in the office, kiosk or
other suitable location at the facility where the tanks are located.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
New — 12-10-90, Formerly 17-761.400, Amended 9-30-96.
62-761.410 Registration Fees.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History - New 12-10-90, Formerly 17-761.40, Repealed 9-30-96.
62-761.450 Notification and Financial Responsibility.
11) The owner or operator of a storage tank system shall notify the
Department of the following items on Form 62-761.900(2):
Effective 9-30-96
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UNDERGROUND STORAGE TANK SYSTEMS
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(a) The date and method of closure at least 30 days before closure of any
storage tank system;
(b) Any change in ownership, no later than 30 days after ownership has
been transferred, of any storage tank system. Notice of change of ownership shall
be provided by the transferor. The notice shall include a copy of the bill of sale or
letter of acceptance by the transferee;
(c) Replacement or upgrading of any storage tank system at least 10 days
before replacement or upgrading occurs, except for emergency replacements of
tanks, integral piping or release detection equipment necessitated by a discharge.
Notification of emergency replacements shall be provided within 10 days of the
emergency replacement.
(d) Placement of a tank that is in service to out of service status at least
30 days before the out of service status begins; and
(e) Any other change in facility status, including changes in the type of
regulated substances stored, within 30 days of the change. A change within the
same type or blend of regulated substances need not be reported (e.g. regular
unleaded to premium unleaded gasoline).
(2) Within 30 days after installation or replacement of any storage tank
system, the certified contractor shall submit a certification form to the Department
on Form 62-761.900(5).
(3) The owner or operator of a storage tank system shall notify the
Department of the establishment of or changes to the method of demonstrating
financial responsibility within 30 days on Form 62-761.900(2). The methods of
demonstrating financial responsibility, time frames for obtaining financial
responsibility and amounts of coverage shall be made in accordance with Code of
Federal Regulations, Title 40, Part 280, Subpart H., as those regulations existed
on December 10; 1990. For purposes of this paragraph, financial responsibility
may be met by participation in the Florida Petroleum Liability Insurance and
Restoration Program.
(4) Owners or operators shall provide at least 24 hours notice, verbal or
written, to the Department;or to a locally administered program under contract
with the Department, prior to the start of a storage tank system closure, upgrading
or Installation.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Formerly 17-761.450, Amended 9-30-96
62-761.460 Reporting.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History - New 12-10-90, Formerly 17-761.450, Repealed 9-30-96
62-761.480 Financial Responsibility.
Specific Authority 376.303, 376.309, FS.
Law Implemented 376.303, 376.309, FS.
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History -- New 12-10-90, Formerly 17-761.480, Repealed 9-30-96
62-761.500 Performance Standards for New Storage Tank Systems. To
prevent releases from structural failure, corrosion, spills or overfills for as long as
the storage tank system is used to store regulated substances, all owners and
operators of new storage tank systems shall comply with the requirements of this
section. All new storage tank systems shall be made of or lined with materials
that are compatible with the regulated substance stored In the system.
(1) Tanks. All new tanks installed at a facility after June 30, 1992 shall
bo constructed with secondary containment and shall meet the following
standards:
(a) All new tanks shall be constructed of one or more of the following
materials and in accordance with the listed Referenced Standards:
1. Fiberglass reinforced plastic listed and approved in accordance with UL
Standard 1316 and ASTM Standard D4021-86 or certified by a nationally
ccognized laboratory that these standards are met; or
2. Cathodically protected coated steol listed and approved in accordance
/villi UL Standard 1746, STI Specification for STI-P3 System of External Corrosion
Protection of Underground Steel Storage Tanks, NACE Standard RP-0285-85 or
rcrtificd by a nationally recognized laboratory that these standards are met,
irovided that:
a. The tank is coated with a suitable dielectric material;
b. Any field installed cathodic protection system is designed by a
:orrosion professional;
c. Any impressed current system Is designed to allow for a determination
)l current operating status; and
d. All cathodic protection systems are operated and maintained in
iccordance with Rule 62-761.700(11), (12), (13) and (14), F.A.C.; or
3. Steel coated with a fiberglass reinforced plastic composite listed and
ipproved in accordance with UL Standard 1746, ACT-100, STI-F894-89 or
ertified by a nationally recognized laboratory that these standards are met; or
4. Any other material, design, construction or corrosion protection as
letermined by the Department to be sufficient to prevent any discharge of
egulnted substance. The determination shall be made in accordance with Rule
2-761.850, F.A.C.
(b) Any new tank constructed of an approved material as established in
his subsection which is manufactured with previously used or remanufactured
omponents shall be certified by Underwriters Laboratory or by a comparable
oriified product testing laboratory before being installed. The provisions of Rule
¦2-761.850, F.A.C., shall apply to the requirements of this subparagraph.
(c) Any tank which is excavated and removed during its useful life and is
nended to be placed back in service shall meet the performance standards of this
ubsection and shall be recertified and warranted by the original manufacturer or
jcertified by the successor who shall confirm all original warranties before the
ink is installed. Proof of recertification shall be provided to the Department no
Ifoctive 9-30-96
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UNDERGROUND STORAGE TANK SYSTEMS
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later than 10 days after completion of installation. The provisions of Rule 62-
761.850, F.A.C., do not apply to the requirements of this paragraph.
(2) Integral Piping. All integral piping in contact with soil installed at a
facility after the effective date of this rule shall be constructed with secondary
containment. Integral piping in contact with soil shall be constructed of one or
more of the following materials and in accordance with the following referenced
standards:
(a) Fiberglass reinforced plastic in accordance with the UL 971 and UL
567;
(b) Cathodically protected coated steel in accordance with API RP 1632,
NACE RP-0169-83, and STI R892-89 provided that:
1. The piping is coated with a suitable dielectric material;
2. Any field installed cathodic protection system is designed by a
corrosion professional;
3. Any impressed current system is designed to allow for a determination
of operating status; and
4. All cathodic protection systems are operated and maintained in
accordance with Rule 62-761.700(11 ),(1 2),(13) and (14), F.A.C.
(c) Other material, design, construction or corrosion protection as
determined by the Department to be sufficient to prevent any discharge of
regulated substance. The determination shall be made in accordance with Rule
62-761.850, F.A.C.
(3) Installation. All tanks, integral piping, secondary containment, and
release detection components which are connected to or associated with the tank
or integral piping system shall be installed according to the manufacturer's
instructions by a certified contractor. A tightness test which meets the
requirements of Rule 62-761.640(9), F.A.C., and which does not exceed allowable
tolerances shall be performed on the storage tank and integral piping before any
regulated substance is dispensed from the storage tank system.
(4) Siting.
(a) No new storage tank system shall be installed within 50 feet of any
existing potable water supply well. This prohibition shall not apply to the
replacement of an existing storage tank system with a system of the same
capacity or less within the same excavation, provided that the replacement storage
tank system is installed with secondary containment.
(b) Secondary containment shall be installed for any new or replacement
storage tank system placed within:
1. 300 feet of any existing potable water supply well serving a
lommunity or a nontransient, noncommunity water system as defined in Section
403.852, F.S.; or
2. 100 feet of any existing potable water supply well serving any private,
other public or noncommunity water system as defined in Section 403.852, F.S.
or Section 403.862, F.S.
(5) Spill Containment and Overfill Protection.
Effective 9-30-96
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05P 199? UNDERGROUND STORAGE TANK SYSTEMS S2-7B1
(a) All owners or operators shall ensure that discharges from spills or
overfills do not occur. The owner or operator shall ensure that the volume
available in the tank is greater than the volume of regulated substances to be
transferred to the tank before the transfer is made and shall insure that the
transfer is continuously monitored to prevent overfilling and spilling.
(b) Owners or operators of storage tank systems shall use a spill
containment system or other spill containment equipment of sufficient volume to
prevent the discharge of a regulated substance when the transfer hose is detached
from the fill pipe, and overfill protection to automatically shut off flow to the tank
when the tank is more than 95% full or to restrict flow to the tank when the tank
is more than 90% full.
(6) Dispensers. For all storage tank systems installed, upgraded, or
replaced after the effective date of this rule, liners shall be installed directly
beneath dispensers at the terminus of the integral piping to contain discharges
caused by dispenser maintenance activities. Dispenser liners shall be designed
and constructed to provide access for periodic examination and removal of
collected product.
(7) Liners.
(a) Any synthetic liner used as secondary containment must be puncture
resistant, have a permeability rate to the regulated substances stored of 1x10-7
cm/sec. or less, and be of a type approved by the Department pursuant to Rule
62-761.850, F.A.C. Criteria to be reviewed by the Department for approval of a
synthetic liner shall include thickness, strength, durability, and compatibility.
(b) Any concrete liner shall be designed to be product tight, sealed and of
sufficient thickness and strength to prevent a discharge during its operating life.
(c) All liners shall be designed and installed to direct any discharge from a
storage tank system to a monitoring point within the liner.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Amended 5-4-92, Formerly 17-761.500, Amended 9-
30-96.
62-761.510 Performance Standards for Existing Storage Tank Systems.
(1) No later than December 31 of the appropriate year shown in Table I
below, all existing vehicular fuel petroleum storage tank systems or components
thereof which are not constructed with secondary containment and of materials
approved for new storage tank system construction shall be replaced with a
storage tank system or component meeting the requirements for new storage tank
systems under Rule 62-761.500, F.A.C., or permanently closed in accordance
with Rule 62-761.800, F.A.C.
(2) A tank which is constructed with corrosion resistant materials or was
initially installed with cathodic protection or has been internally lined before June
30, 1992 shall install secondary containment by December 31, 2009.
(3) Integral piping which is constructed with corrosion resistant materials
or was initially installed with cathodic protection before June 30, 1992 in
Effective 9-30-96
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DEP 1996 UNDERGROUND STORAGE TANK SYSTEMS 62-761
accordance with Table I and which Is Installed with In-line leak detectors with
automatic shutoff by December 31, 1998, In accordance with Rule 62-
761.610(2), F.A.C., is not required to install secondary containment until
December 31, 2009.
(4) Integral piping shall be replaced, dispenser liners installed, overfill
protection and spill containment equipment, and secondary containment installed
in accordance with Rule 62-761.500, F.A.C., by no later than December 31 of the
appropriate year shown in Table I.
Year Tank or
Integral Piping
Installed
TABLE I
1989 1992 1995 1998
2009
•Before 1970
*1970 - 1975
•i976 - 1980
•1981 - 09/01/84
•After 09/01/84
•Other'
OR
B
SBL
B
B
B
B
SL
AL
A
A
SAL
SAL
SAL
E
E
E
E
E
E
•All systems with a capacity of between 110 gallons to 550 gallons, all marine
fueling facilities and those systems of greater than 550 gallon capacity that use
less than 1,000 gallons per month or 10,000 gallons per year.
O = Retrofit for corrosion protection under Chapter 17-61, F.A.C.
A = Secondary containment of integral piping or in-line leak detectors with
automatic shutoff for integral piping protected from corrosion.
B = Spill containment.
L = Dispenser liners, overfill protection, and replacement of swing joints or flex
connectors not protected from corrosion.
S = Secondary containment for storage tanks and integral piping not protected
from corrosion.
E = Secondary containment for existing storage tanks systems protected from
corrosion.
(51 No later than December 31, 1998, all existing petroleum product
storage tank systems, excluding those containing vehicular fuel, shall:
(a) If not protected from corrosion, comply with the requirements for new
storage tank systems under Rule 62-761.500, F.A.C., and install secondary
containment; or
(b) If protected from corrosion, comply with the requirements for new
storage tank systems under Rule 62-761.500, F.A.C., and install secondary
containment by December 31, 2009; or
(c) Permanently close in accordance with Rule 62-761.800, F.A.C.
(6) Any existing hazardous substance storage tank system shall be
upgraded by December 31, 1998 to meet the standards of Rule 62-761.500,
F.A.C.
Effective 9-30-96
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PEP' 1996 UNDERGROUND STORAGE TANK SYSTEMS 62-761
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Amended 5-4-92, Formerly 17-761.510, Amended 9-
30-96
62-761.520 Performance Standards for Other Existing Petroleum and
Petroleum Product Storage Tank Systems (Non-Vehicular Fuels).
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History - New 12-10-90, Amended 5-4-92, Formerly 17-761.520, Repealed 9-30-
96
62-761.550 Performance Standards for New Hazardous Substance Storage
Tank Systems.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History - New 12-10-90, Formerly 17-761.550, Repealed 9-30-96
62-761.560 Performance Standards for Existing Hazardous Substance
Storage Tank Systems.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Formerly 17-761.560, Repealed 9-30-96.
62-761.600 General Release Detection Standards.
(1) Owners and operators of all storage tank systems shall provide a
method, or combination of methods, of release detection that:
(a) Can detect a discharge from the tank and integral piping which shows
a significant increase in contamination levels above background and which is
capable of detecting a significant increase in contamination levels above
background;
(b) Is installed, calibrated, operated and maintained in accordance with the
manufacturer's instructions, including routine maintenance and service checks for
operability; and
(c) Meets the performance requirements in Rule 62-761.640, F.A.C. The
owner and operator shall retain any performance claims and their manner of
determination, described in writing by the equipment manufacturer or installer, for
the life of the storage tank system.
(2) Any storage tank system which cannot provide release detection in
accordance with this section shall be closed in accordance with Rule 62-761.800,
F.A.C., by the date upon which release detection is to be provided.
(3) Release detection for all new petroleum or hazardous substance
storage tank systems shall be provided upon installation. Release detection for all
existing storage tank systems, except for vehicular fuel storage tank systems of
greater than 550 gallons capacity, shall be provided by December 31 of the year
Effective 9-30-96
-15-
DEP 1996 UNDERGROUND STORAGE TANK SYSTEMS 62-7R1
shown in Table II. Release detection for existing vehicular fuel petroleum storage
tank systems of greater than 550 gallons capacity shall be installed upon the
effective date of this rule.
TABLE ||
Year Storage
Tank System Year Release Detection Required
Installed 1990 1991 1992 1993
Before 1970 or P/RD
unknown
1970-1974 P RD
1975-1979 P RD
I980 - I990 E ED
P = Installation of Release Detection for Pressurized Piping
RD = Installation of Release Detection for Tanks and Suction
Piping.
(4) Any storage tank system that stores fuel solely for use by emergency
power generators shall not be subject to the release detection standards of Rule
62-761.600 through 62-761.640, F.A.C.
(5) Release detection shall be monitored for evidence of a discharge from
the storage tank system at least every 30 days.
(6) Monitoring wells installed prior to the effective date of this Chapter
shall, by December 31, 1998, meet the standards in Rule 62-761.640(1), F.A.C.
Monitoring wells which cannot meet the standards in Rule 62-761.640(1), F.A.C..
by that date shall be properly closed in accordance with Rule 62-532.500(4),
F.A.C., and replaced with an approved method of release detection.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Formerly 17-761.600.
62-761.610 Release Detection Standards.
(1) All existing-storage tanks shall be equipped with one or more of the
following release detection systems:
(a) An interstitial leak detection system between the walls of a double-
walled tank;
(b) A single monitoring well or vapor detector located within a liner which
meets the standards in Rule62-761.500(7) F.A.C., provided the well or detector is
placed at the low point of the liner so that collected liquids will drain to the
monitoring point;
Effective 9-30-96
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PEP 1996 UNDERGROUND STORAGE TANK SYSTEMS 62-761
(c) A continuously operating release detection system placed around a
>k In an excavation or in the secondary containment in accordance with the
inufacturer's requirements;
(d) A network of at least two monitoring wells within the excavation for a
single tank of 2000 gallons or less, or at least four monitoring wells located in a
tank excavation for a single tank of greater than 2000 gallons or for two or more
tanks;
(e) A ground water monitoring plan, spill prevention control and
countermeasure plan or other similar release detection method, if a demonstration
can be made that the ground water monitoring plan, spill prevention control and
countermeasure plan or release detection method can detect a 0.2 gallon per hour
leak rate or a release of 150 gallons within a month with a probability of detection
of 0.95 and a probability of false alarm of 0.05. Any method of release
detection contained In this subsection which was Installed before December 22,
1990, need not be capable of detecting the leak rate or quantity specified In this
subsection until the applicable date specified under the schedule in Table II in Rule
62-761.600, F.A.C.: or
(f) An automatic tank gauge system used in conjunction with two
monitoring wells located in the tank excavation.
Ig) Manual tank gauging for tanks of 550 gallons or less nominal capacity;
or
(h) Any other type of release detection method that can detect a 0.2
gallon per hour leak rate or a release of 150 gallons within a month with a
probability of detection of 0.95 and a probability of false alarm of 0.05.
(2) All integral piping in contact with soil installed after December 10,
1990 shall be equipped with secondary containment. Release detection for any
such piping shall consist of:
(a Interstitial monitoring of double walled piping capable of detecting a
discharge through the inner wall, or;
(b) Interstitial monitoring for integral piping with liners:
1. Capable of detecting a discharge through the inner wall; and
2. Constructed so ground water, rainfall or soil moisture will not render
the testing or sampling method used inoperative so that a discharge could go
undetected for more than 30 days.
(3) After December 31, 1998, in accordance with Table I, single-walled
corrosion protection integral piping shall have in line leak detectors that meet the
test methods for release detection in Rule 62-761.640(7), F.A.C.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History — New 12-10-90, Formerly 17-761.610, Amended 9-30-96
62-761.620 Release Detection Standards for Other Existing Regulated
Substance Storage Tanks.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
Effective 9-30-96
-17-
DEP 1996
UNDERGROUND STORAGE TANK SYSTEMS
62-761
History -- New 12-10-90, Formerly 17-761.620, Repealed 9-30-96.
62-761.630 Release Detection Standards for Integral Piping.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History - New 12-10-90, Formerly 17-761.630, Repealed 9-30-96.
62-761.640 Performance Standards for Release Detection Methods. Release
detection for tanks and, if applicable, integral piping used to meet the
requirements of this Chapter shall consist of one of the following methods:
(1) Ground water monitoring.
(a) Monitoring for regulated substances in the ground water may be
conducted for regulated substances which are immiscible in water and have a
specific gravity of less than one. Any continuous monitoring devices or manual
methods used for sampling in monitoring wells shall be capable of detecting the
presence of any amount of free product, including a sheen, on the top of the
ground water or a significant increase in contamination levels above background.
(b) Monitoring wells may be used in areas where ground water is never
less than four feet from the ground surface during high water periods and never
more than 18 feet from the ground surface during low water periods, except for
monitoring wells installed before the effective date of the rule that are less than 25
feet deep, and in areas where the hydraulic conductivity of the soils between the
storage tank system and the monitoring wells or devices is not less than 0.01
cm/sec (e.g. the soil should consist of gravel, coarse to medium sands, coarse silts
or other permeable materials).
(c) Monitoring wells shall be constructed and installed by a licensed water
well contractor when required by Rule 62-531, F.A.C.
(d) The area within and immediately below the storage tank system
excavation zone shall be assessed to insure that the requirements of this
subsection are capable of being complied with and to establish the number and
oositioning of monitoring wells necessary to detect releases from any portion of
the tank or tanks that routinely contain regulated substances.
(e) Any monitoring well constructed and installed to meet the requirements
)f this subsection shall:
1. Be a minimum of two inches in interior diameter;
2. Be slotted from the bottom to two feet below ground surface;
3. Have a minimum slot size of .010 inch;
4. Be completed by backfilling with appropriate clean sand or gravel filter
jack to prevent blockage of the slots;
5. Be constructed of schedule 40 PVC or other material which is
;ompatible to the regulated substance stored;
6. Be sealed into the bore hole from the surface to the top of the filter
>ack plug with neat cement grout or other equivalent materials. Bentonite slurry
jrouts shall not be used;
7. If placed below grade, be equipped with a manhole cover with a one
nch minimum grade increase above the surrounding surface;
iffective 9-30-96
-18-
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PEP 1996
UNDERGROUND STORAGE TANK SYSTEMS
62-761
8. Unless the monitoring well Is aboveground with an extended exterior
casing, be equipped with a minimum six inch diameter manhole;
9. Be equipped with a locking watertight cap marked in accordance with
API RP 1615 and be kept locked at all times except when being sampled;
10. Extend at least five feet below the normal water level but no deeper
than 20 feet from ground surface, unless such a depth penetrates a confining layer
below the tank excavation, in which case a ground water monitoring well shall be
placed above the confining layer, or extend to within six inches of the bottom of a
liner or a confining layer. Any well that penetrates a confining layer shall
immediately be properly abandoned pursuant to Rule 62-532, F.A.C.; and
11. Be properly developed before initial sampling.
(2) Vapor monitoring. Vapor monitoring may be conducted using vapor
detection wells placed within the tank excavation backfill, provided:
(a) The material used as backfill is sufficiently porous to readily allow
diffusion of vapors into the excavation from a discharge;
(b) The regulated substance being stored is sufficiently volatile to result in
a vapor level that is detectable by a monitoring device inserted into the vapor
detection wells in the event of a discharge;
(c) The measurement of vapors by the vapor detection wells is not
rendered inoperative by ground water, rainfall
or soil moisture or other known Interferences so that a discharge could go
undetected for more than 30 days;
(dl The level of background contamination in the excavation and backfill
will not interfere with the method used to detect a discharge;
(e) The vapor detection wells are designed, operated and maintained to
detect;
1. A vapor concentration of 500 parts per million total petroleum
hydrocarbons or less for storage tank systems containing gasoline or equivalent
petroleum products;
2. A vapor concentration of 50 parts per million total petroleum
hydrocarbons or less for storage tank systems containing kerosene, diesel fuel or
other equivalent petroleum products;
3. Concentrations of hazardous substances or their constituents which
would indicate that a release occurred for hazardous substance storage tank
systems; and
4. Any significant increase in concentration above background of the
regulated substance stored, any indicator
constituent thereof, or any tracer compound used for enhancement of release
detection; and
5. The vapor sample collection method must be representative of the
entire air column of the vapor monitoring well; and
(f) With the exception of the water level requirements of this section, the
vapor detection wells meet the construction standards for ground water
monitoring wells or are otherwise approved by the Department.
Effective 9-30-96
-19-
DEP 1996
UNDERGROUND STORAGE TANK SYSTEMS
62-761
(3) Interstitial monitoring for double walled tanks. Interstitial monitoring
for double walled tanks shall be capable of detecting a discharge through the inner
wall.
(4) Interstitial monitoring for tanks with liners. Interstitial monitoring for
tanks equipped with liners shall:
(a) Be capable of detecting a discharge through the inner wall;
(b) Be constructed so ground water, rainfall or soil moisture will not render
the testing or sampling method used inoperative so that a discharge could go
undetected for more than 30 days; and
(c) In the event monitoring wells are used, meet the construction
standards for ground water monitoring wells.
(5) Manual tank gauging for tanks of 550 gallons or less shall meet the
following requirements:
(a) Tank liquid level measurements shall be taken at the beginning and
ending of a period of at least 36 hours during which no liquid is added to or
removed from the tank;
(b) Level measurements shall be based on an average of two consecutive
stick readings taken at both the beginning and ending of the period; and
(c) The equipment used shall be capable of measuring the level ol product
over the full range of the tank's height to the nearest one-eighth of an inch.
(6) Automatic tank gauge systems shall be capable of detecting 0.2
gallons per hour leak rate with a probability of detection of 0.95 and a probability
of false alarm of 0.05.
(7) In line leak detectors shall alert the owner or operator of the presence
of a discharge by shutting off the flow of regulated substances and by triggering a
high intensity audible or visual alarm. It shall be capable of detecting discharges
of 0.3 gallons per hour at a pressure of ten pounds per square inch within one
hour. An annua! test of the detector shall be conducted in accordance with the
manufacturer's requirements.
(8) Applicable tank release detection methods. Any of the external
methods used for tank release detection may be used for integral piping if they are
designed to detect a discharge from any portion of the integral piping.
(9) Tightness Testing. Tank and integral piping tightness testing must be
capable of detecting a 0.1 gallon per hour leak rate with a probability of detection
of 0.95 and a probability of false alarm of 0.05 from any portion of the tank and
integral piping that routinely contains product while accounting for the effects of
thermal expansion or contraction of the product, vapor pockets, tank deformation,
evaporation'or condensation, and the location of the water table.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History - New 12-10-90, Formerly 17-761.640, Repealed 9-30-96.
62-761.680 Tightness Testing.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
Effective 9-30-96
-20-
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PEP 1996
UNDERGROUND STORAGE TANK SYSTEMS
62-761
History -- New 12-10-90, Formerly 17-761.680, Repealed 9-30-96.
62-761.700 Repairs, Operation and Maintenance of Storage Tank Systems.
(1) In the event any component of a storage tank system is discovered to
have discharged or contributed to the discharge of a regulated substance, that
component shall be isolated from the system, if possible, and not used until the
component has been repaired or replaced. If the storage tank system cannot be
operated in compliance with this chapter without the component, the storage tank
system shall not be operated until the component has been repaired or replaced.
If a tank has discharged or has contributed to the discharge of a regulated
substance, that tank shall be taken out of service until the tank has been repaired
or replaced.
(2) All repairs to storage tank systems shall be made in a manner which
will prevent any discharge from the storage tank system due to structural failure or
corrosion for the remaining useful life of the storage tank system.
(3) All repairs to storage tank systems shall be made in accordance with
NFPA Standard 30 or other applicable reference standards.
(4) All repairs to fiberglass reinforced plastic tanks shall be made by an
authorized representative of the tank manufacturer or its successor or In
accordance with a code of practice developed by a nationally recognized trade
association or an independent testing laboratory.
(5) All pipe sections and fittings from which a
regulated substance has been discharged or which is otherwise damaged shall be
replaced. Fiberglass pipe sections and fittings may, instead of replacement, be
repaired in accordance with manufacturer's specifications.
(6) All repaired components of a storage tank system shall be tightness
tested before being placed back in service. Integral piping shall be tightness
tested before being placed back Into service whenever dispensers connected to
that piping are replaced.
(7) Within six months of the repair of any cathodically protected storage
tank system, the cathodic protection shall be tested in accordance with Rule 62-
761.700(11),(1 2),( 1 3) and (14), F.A.C., to ensure its proper operation.
(8) Owners and operators shall maintain records of any repairs, excluding
routine maintenance, to a storage tank system for the remaining life of the system.
(9) A tank may be repaired with internal lining if:
(a) The internal lining is installed in accordance with the requirements of
API RP 1631, and documentation is available from the installer that demonstrates
these requirements have been met;
(b| Within 10 years after the installation of internal lining, and every five
years thereafter, the lined tank is inspected internally and found to be structurally
sound with the internal lining still performing in accordance with original design
specifications; and
(c) A tightness test which meets the requirements of Rule 62-761.640(9),
F.A.C., and which does not exceed allowable tolerances shall be performed on the
Effective 9-30-96
-21-
DEP 1996 UNDERGROUND STORAGE TANK SYSTEMS 62-761
tank and integral piping before the tank is placed back into service and every five
years alter installation of the internal lining.
(10) A tank my be repaired with internal lining and cathodic protection if:
(a) The internal lining is installed in accordance with the requirements of
API RP 1631,
(b) The cathodic protection system meets the requirements of Rule 62-
761.500(1 )(a)2.b., c. and d., F.A.C., and
(c) A tightness test which meets the requirements of Rule 62-761.640(91,
F.A.C., and which does not exceed allowable tolerances shall be performed on the
tank and integral piping before the tank is placed back into service and every five
years after installation of the internal lining.
(11) All cathodic protection systems shall be operated and maintained to
provide continuous corrosion protection to the metal components of those portions
of the tank and integral piping in contact with the ground.
(12) All storage tank systems equipped with any type of cathodic protection
must be inspected and tested by a corrosion professional or a cathodic protection
tester within six months of installation and at least every three years thereafter in
accordance with the criteria contained in NACE RP-0285-85.
(13) All storage tank systems equipped with impressed current cathodic
protection shall be inspected every 60 days to ensure the cathodic protection is
functioning in accordance with design criteria.
(14) All owners or operators of storage tank systems using any type of
cathodic protection must maintain records of the results of the testing from the
last two inspections of sacrificial anode systems or from the last three inspections
for impressed current systems as required in this section.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Amended 5-4-92, Formerly 17-761.700, Amended 9-
30-96.
62-761.710 Record Keeping and Inventory Requirements.
(1) All records required to be kept pursuant to this Chapter shall, unless
otherwise specified in the text of those rules, be maintained for two years and
shall be available for inspection by the Department at the facility. If records are
not kept at the facility they shall be available at the facility or other location
acceptable to the Department up on live working days notice. Records of the
following are required:
(a) Measurements and reconciliations of inventory;
(b) Results of examinations of monitoring wells and other release detection
systems;
(c) Dates of upgrading or replacement of existing storage tank systems;
(d) Results of maintenance examinations of storage tank systems;
(el Results of all tightness tests of storage tank systems;
(f) Results of tests of integral piping;
(g) Descriptions and dates of repairs;
Effective 9-30-96
-22-
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PEP 1996
UNDERGROUND STORAGE TANK SYSTEMS
62-761
(h) Closure assessment reports if the location continues as a facility;
(1) Release detection equipment performance claims as specified in Rule
62-761.600( 1 )(c), F.A.C.; and
(j) Certification of Financial Responsibility on Form 62-761.900(3).
(2) Owners or operators shall maintain inventory records for each tank that
contains vehicular fuel. Inventory records shall be reconciled weekly. Unless a
more frequent recording period is desired, the following information shall bo
recorded each week:
(a) The type of vehicular fuel;
(b) Physical inventory;
(c) Inputs and outputs of vehicular fuel; and
(d) Amount of water In the tank.
(3) Losses or gains from each recording period shall be averaged. For any
average which indicates a significant loss or gain, the owner or operator shall
investigate the cause of any discrepancy. The Investigation shall not stop until the
source of the discrepancy has been found, using the following investigative
procedure:
(a) Inventory, input, and output records shall be checked for arithmetical
error;
(b) Inventory shall be checked for error in measurement;
(c) If the significant loss or gain is not reconcilable by steps (a) and (b), or
cannot be affirmatively demonstrated to be the result of theft, the accessible parts
of the storage system shall be checked for damage or leaks;
(d) Monitoring wells and release detection systems shall be checked for
signs of a discharge;
(e) Calibration of the inventory measuring system and any dispensers shall
be checked; and
(f) If the investigation does not reveal the source of the inventory
discrepancy and if such discrepancy continues for three consecutive weeks, or if
the Department determines it to be necessary, the entire storage tank system shall
be tightness tested in accordance with the manufacturer's guidelines and Rule 62-
761.640(91, F.A.C.
(4) Owners and operators of tanks equipped with secondary containment
are exempt from inventory requirements of this section for those tanks.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Formerly 17-761.710, Amended 9-30-96.
62-761.720 Inventory Requirements.
Specific Authority 376.303, FS.
Law Implemented: 376.303, FS.
History -- New 12-10-90, Formerly 17-761.720, Repeal 9-30-96.
62-761.730 Operating Requirements for Cathodic Protection.
Specific Authority 376.303, FS.
Effective 9-30-96
-23-
DEP 1996
UNDERGROUND STORAGE TANK SYSTEMS
62-761
Law Implemented 376.303, FS.
History - New 12-10-90, Formerly 17-761.730, Repeal 9-30-96.
62-761.740 Certified Contractors.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History - New 12-10-90, Formerly 17-761.740, Repeal 9-30-96.
62-761.800 Out 6f Service and Closure Requirements.
(1) Out of Service Storage Tank Systems.
(a) Owners or operators of storage tank systems which are taken out of
service for any period of time shall:
1. Continue to operate and maintain corrosion protection In accordance
with Rule 62-761-700(11),(12),(13) and (14), F.A.C., except that impressed
current cathodic protection, shall be inspected every six months; and
2. Inspect release detection devices in accordance with applicable
provisions of Rule 62-761.600 through 62-761.640, F.A.C., every six months.
(b) Owners or operators of storage tank systems which are taken out of
service for three months or more shall also:
1. Leave vent lines open and functioning; and
2. Cap and secure all other lines, pumps, manways, and ancillary
equipment.
(c) Owners or operators returning an out of service storage tank system to
service must perform a tightness test on the system which meets the requirements
of Rule 62-761.640(9), F.A.C., and which demonstrates that the system does not
exceed allowable tolerances. If the storage tank system is required to be
upgraded during the period, in which it is out of service, the storage tank system
shall be upgraded or replaced before it is returned to service.
(d) Any owner or operator of a storage tank system who intends to keep a
storage tank system in out of service status for more than two years must apply
for and receive an alternate procedure pursuant to Rule 62-761.850, F.A.C. Any
such alternate procedure shall be conditioned upon the storage tank system being
equipped with appropriate release detection equipment as set forth in this Chapter
or upon a closure assessment being conducted.
(2) Closure of Storage Tank Systems.
(a) Owners of unmaintained storage tank systems must permanently close
the system within 90 days of the effective date of this rule or of discovery of the
existence of'the unmaintained storage tank system.
(b) Any storage tank system constructed of unprotected bare steel which
is out of service for more than 12 months shall be permanently closed unless the
system meets the performance standards for new storage tank systems in Rule
62-761.500, F.A.C., or is upgraded pursuant to Rule 62-761.510, F.A.C.
(c) Owners or operators of storage tank systems shall notify the
Department at least 30 days before closure of a storage tank system.
Effective 9-30-96
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PEP 1996 UNDERGROUND STORAGE TANK SYSTEMS 62-761
(d) Storage tank systems shall be closed after removal of all liquids and
accumulated sludges either by having the tank removed from the ground by a
certified contractor or by filling it with a solid inert material of sufficient density to
prevent a structural collapse of the closed system. API RP 1604 may be used to
comply with this section. All removed tanks shall be disposed in accordance with
API RP 1604 or NFPA 30 (1987), Appendix B.
(e) Storage tank systems may be used to store material other than
regulated substances provided:
1. All liquid and accumulated sludge are removed from the tank; and
2. A closure assessment is conducted in accordance with this section.
(f) Unless maintained for contamination assessment purposes, all
monitoring wells shall be properly abandoned according to applicable state and
local government requirements.
(3) Closure Assessment of Storage Tank Systems.
(a) Before permanent closure, replacement or change In service from a
regulated substance to a non-regulated substance is completed, owners shall
determine if a release has occurred and sample for the presence of a release where
contamination is most likely to be present at the facility. A closure assessment is
not required for eligible facilities participating in the Early Detection Incentive (EDI)
and Reimbursement Programs pursuant to Section 376.3071, F.S. In selecting
sample types, sample locations, and measurement methods, owners must consider
the method of closure, the nature of the stored substance, the type of backfill, the
depth of ground water and other factors appropriate for identifying the presence of
a release. Owners shall ensure that all samples or measurements taken during a
closure are accomplished with proper quality assurance and quality control.
(b) If water samples are collected during a closure assessment, they shall
be analyzed in accordance with EPA Test Method 602 for storage tank systems
containing gasoline or equivalent petroleum products, or EPA Test Method 602
and 610 for storage tank systems containing kerosene, diesel fuel, or other
equivalent petroleum products. If vapor samples are collected during a closure
assessment, they shall be screened with a flame ionization detector, or a photo
ionization detector if a demonstration can be made that the results are equivalent
to those obtained from a flame ionization detector.
(c) A report of the closure assessment shall be prepared and submitted to
the Department or to a locally administered program under contract with the
Department by the owner within 60 days of completion of tank removal or filling
the tank with inert material. The report shall include sample types, sample
locations and measurement methods, a site map, methods of maintaining quality
assurance and quality control, and results of all analyses of samples from the site
and submitted on Form 62-761.900(6).
(d) If contaminated soils, contaminated ground water, free product, or
vapor levels in excess of those listed in Rule 62-761,640(2)(e), F.A.C., are
discovered, owners shall begin appropriate corrective action. If the contamination
present is subject to the provisions of Chapter 62-770, F.A.C., corrective action
shall be conducted in accordance with that cleanup criteria rule.
Effective 9-30-96
-25-
DEP 1996 UNDERGROUND STORAGE TANK SYSTEMS 62-761
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History — New 12-10-90, Formerly 17-761.800, Ameneded 9-30-96.
62-761.820 Discharge Reporting and Response
(1) Discharge Reporting. The owner or operator shall report the following
items to the Department and, if the storage tank system is in a county with a
locally administered program under contract with the Department, to that locally
administered program on Form 62-761.900(1):
(a) Receipt of any tightness test results that exceed allowable tolerances
within 10 days after the date of receipt of the test results, and results of any
confirmation tightness test within 30 days of the date of the first test. The report
shall be accompanied by a copy of the tightness test report;
(b) Any spill, overfill or other discharge of regulated substances from a
storage tank system that equals or exceeds its reportable quantities under the
federal Comprehensive Environmental Response, Compensation and Liability Act ol
1980, 40 CFR Section 302, within one working day of discovery of the discharge,
or any spill, overfill or other discharge of petroleum or petroleum product that
results in a release to the environment that exceeds 25 gallons or that causes a
sheen on surface water;
(c) Suspected releases within one working day of discovery. Suspected
releases shall include:
1. The discovery by owners and operators or others of released regulated
substances from an underground storage tank system at the facility or in the
surrounding area (such as the presence of free product or vapors in soils,
basements, sewer and utility lines, and nearby surface water) in excess ol the
quantities set forth in subsection (b);
2. Unusual operating conditions observed by owners and operators (such
as the erratic behavior of product dispensing equipment, the sudden loss of
product from the underground storage tank system, or any unexplained presence
of water in the tank), unless system equipment is found to be defective but not
leaking, and is immediately repaired or replaced; or
3. Monitoring results from a release detection method required under Rule
62-761.600 through 62-761.640, F.A.C., or from a closure assessment required
under Rule 62-761.800(3), F.A.C., that indicate a release may have occurred,
including but not limited to the positive response of a leak detection device, a
significant increase in contamination levels above background, a sheen, layer or
odor of regulated substances in a ground water sample, a sheen or layer of
regulated substances on surface water, an exceedance of ground or surface water
standards, or vapor levels in excess of those allowed by Rule 62-761.640(2)(e),
F.A.C., unless:
a. The monitoring device is found to be defective, and is immediately
repaired and recalibrated, or is replaced and calibrated, and additional monitoring
does not confirm the initial result; or
Effective 9-30-96
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D'Eft 1996
UNDERGROUND STORAGE TANK SYSTEMS
62-761
b. In the case of inventory control, the investigation conducted pursuant
to Rule 62-761.700(3), F.A.C., does not confirm the initial result; or
4. Manual tank gauging results for tanks of 550 gallons or less conducted
pursuant to Rule 62-761.640(5), F.A.C., if the variation between beginning and
ending measurements exceeds 10 gallons for any weekly test or 5 gallons for the
average of 4 consecutive weekly tests.
(2) Discharge Response. When evidence of a discharge from a storage
tank system is discovered and reported in accordance with Rule 62-761.820(1),
F.A.C., the owner or operator shall remove as much of the regulated substance
from the systemas is necessary to prevent further release to the environment.
Fire, explosion, and vapor hazards shall be identified and mitigated. The storage
tank system shall be repaired. If possible, in accordance with Rule 62-761.700,
F.A.C. If the storage tank system cannot be repaired, it shall be closed in
accordance with Rule 62-761.800(2), F.A.C.
(3) Any owner or operator of a facility discharging a regulated substance
shall immediately undertake to contain, remove, and abate the discharge In
accordance with Chapter 376 and 403, F.S. If the contamination present is
subject to the provisions of Chapter 62-770, F.A.C., corrective action shall be
conducted in accordance with that cleanup criteria rule.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History - New 12-10-90, Formerly 17-761.820, Amended 9-30-96.
62-761.840 Locally Administered Programs.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
- New 12-19-90, Formerly 17-761.840, Amended 9-30-96.
62-761.850 Equipment Approval and Alternate Procedures.
(1) The owner or operator of a facility subject to the provisions of this
Chapter may request in writing a determination from the Department that any
requirement of this Chapter should not apply to such facility, and shall request
approval of alternate procedures.
(2) The request shall set forth at a minimum the following information:
(a) The facility for which an exception is sought;
(b) The specific provision of Rule 62-761, F.A.C., from which an exception
is sought;
(c) The basis for the exception;
(d) The alternate procedure or requirement for which approval is sought
and a demonstration that the alternate procedure or requirement provides a
substantially equivalent degree of protection for the lands, surface waters, or
ground waters of the state as the established requirement; and
(e) A demonstration that the alternate procedure or requirement is at least
as effective as the established procedure or requirement.
Effective 9-30-96
-27-
PEP 1996 UNDERGROUND STORAGE TANK SYSTEMS 62-761
(3) The Secretary or his designee shall approve or deny each alternate
procedure using the criteria in subsection (2) and shall provide written notice of
such action.
(4) Equipment Approval. Storage tank systems, including the tank,
integral piping, and release detection components (equipment) shall be constructed
in accordance with the applicable referenced standards of Rule 62-761.210,
F.A.C. An owner or operator of a facility may seek Department approval of
equipment different than such standards before installation or use. Any provisions
of this Chapter which reference this section are subject to the approval procedures
set forth herein. Information related to the request for approval shall be submitted
to the Department with a demonstration that the equipment will provide equivalent
protection or meet the appropriate performance standards contained in this
Chapter. Equipment approval requests may include, but not be limited to, storage
tanks, liners, piping, overfill protection, spill containment, release detection and
reuse or remanufacturing of tanks. Within thirty days of request, the Department
may request additional information if necessary. The Department shall approve or
deny completed requests within 90 days of receipt.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Formerly 17-761.850, Amended 9-30-96.
62-761.860 Approval of Storage Tank Systems and Release Detection
Equipment.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New 12-10-90, Formerly 17-761.860, Repealed 9-30-96.
62-761.900 Stationary Tank Forms. The forms used by the Department in
the Stationary Tank Program are adopted and incorporated by reference in this
section. The forms are listed by rule number, which is also the form number, and
with the subject title and effective date. Copies of forms may be obtained by
writing to the Administrator, Storage Tank Regulation Section, Division of Waste
Management, Department of Environmental Protection, 2600 Blair Stone Road,
Tallahassee, Florida 32399-2400.
(1) Discharge Reporting Form, 12-10-90.
(2) Storage 1 anK Registration Form, 12-10-90.
(3) Financial Responsibility Form, 12-10-90.
(4) Alternate Procedure Form, 12-10-90.
(5) Underground Storage Tank Installation and Removal Form, 12-10-90.
(6) Closure Assessment Form, 12-10-90.
Specific Authority 376.303, FS.
Law Implemented 376.303, FS.
History -- New: 12-10-90, Formerly 17-761.900.
Effective 9-30-96.
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1991
ABOVEGROUND STORAGE TANK SYSTEM8
17-762
THE
DEPARTMENT OF ENVIRONMENTAL REGULATION
CHAPTER 17-762
Aboveground Storage Tank Systems
7-762.100 Intent
7-762.200 Definitions
7-762.210 Referenced Standards
7-762.300 Applicability
7-762.400 Registration
7-762.4 10 Registration Fees
7-762.450 Notification
7-762.460 Reporting
7-762.480 Financial Responsibility
7-762.500 Performance Standards for Mew storage Tank
Systems
7-762.510 Performance Standards for Existing
Shop-Fabricated Storage Tank Systems
7-762.520 Performance Standards for Existing Field-Erected
Storage Tank Systems
7-762.600 General Release Detection Standards
7-762.700 Repairs to Storage Tank Systems
7-762.710 Recordkeeping
7-762.720 Inventory Requirements
7-762.730 Operating Requirements for Cathodic Protection
7-762.800 Out of Service and Closure Requirements
7-762.820 Discharge Response
7-762.840 Locally Administered Programs
7-762.850 Approval of Alternate Procedures
7-762.860 Approval of Storage Tank Systems and Release
Detection Equipment.
7-762.900 Forms
-1-
1991
ADQVEGROUND 8TQRAGE TANK SYSTEMS
17-762
CHAPTER 17-762
ABOVEGROUND STORAGE TANK SYSTEMS
17-762.100 Intent.
The purpose of this rule is to provide standards for the
construction, installation, maintenance, registration, removal
and disposal of stationary aboveground storage tank systems which
consist of aboveground tanks and their on-site integral piping
systems and associated release detection which store pollutants
and which have storage capacities of greater than 550 gallons.
This rule implements the requirements of Chapter 376, Florida
Statutes.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.200 Definitions.
The definitions found in Florida Statutes 37$.301 are adopted
herein, including those definitions for the terms "facility",
"pollutant", and "discharge". In addition, the following words,
phrases or terms used in this Rule, unless the context' indicates
otherwise, shall have the following meaning:
(1) "Airport hydrant piping" means the integral underground
piping system, including hydrant pits, associated with
aboveground bulk petroleum storage tank systems serving major
airports.
(2) "Ammonia" includes all liguid organic amines and all
inorganic liquid compounds that are liquids at standard
temperature and pressure which, when discharged release free
ammonia (NHj), or ammonium ion (NH4+).
(3) "Bulk product piping" means any piping originating at the
first landward valve from a vessel loading or unloading area
delivering pollutants up to and including the first valve within
the storage tank secondary containment area of a bulk product
facility and any integral piping six inches internal diameter or
greater which is utilized for transporting pollutants.
(4) "Cathodic protection" means a method of preventing
corrosion of a metal surface by making that surface the cathode
of an electrochemical cell through the use of devices such as
galvanic anodes or impressed current.
17-762.100 ~ 17-762.200(4)
3-12-91
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1991 ABOVEGROUND STORAGE TANK SYSTEMS )IsJA 2
(5) "Cathodic protection tester" means a person who con
demonstrate an understanding of the principles and measurements
of all common types of cathodic protection systems as applied to
buried or submerged metal piping and tanks systems. At n
minimum, such persons shall have education and experience in coil
resistivity, stray current, structure-to-soil potential, and
component electrical isolation measurements of buried metal
piping and tank systems.
(6) "Chlorine" includes all liquid organic and inorganic
compounds that are liquids at standard temperature and pressure
which, when discharged, release free chlorine (CI or Cl2)-
Aqueous solutions of sodium hypochlorite shall not be included in
this definition.
(7) "Compatible" means the ability of two or more substances
to maintain their respective physical and chemical properties
upon contact with one another for the design life of the storage
tank system under conditions likely to be encountered in the
storage tank system.
(8) "Corrosion professional" means a person who, by reason of
thorough knowledge of the physical sciences and the principles of
engineering and mathematics acquired by a professional education
and related practical experience, is qualified to engage in the
practice of corrosion control on buried or submerged metal
components of a storage tank system. Such a person shall be
accredited or certified as being qualified by the National
Association of Corrosion Engineers or be a registered
professional engineer.
(9) "Dielectric material" means a material that does not
conduct direct electrical current.
(10) "Discovery".
(a) As related to a discharge, "Discovery" means:
1. Free product in monitoring wells, sewer lines, and utility
lines, nearby surface water, or other similar locations;
2. Observance of contaminated soil or odor of petroleum
products or other pollutants resulting from a discharge of more
than 25 gallons on a pervious surface;
3. Observance of contaminated soil or odor of petroleum
products or other pollutants resulting from a loss of 100 gallons
on an impervious surface other than secondary containment or 500
gallons inside a secondary containment area;
4. Unusual operating conditions unless the system and
equipment is found to be defective but not leaking and is
immediately repaired or replaced;
17-762.200(5) -- 17-762.200(10) (a)4 .
3-12-91
-3-
1991 ABOVEGROUND STORAGE TANK SYSTEMS 17-1 G2
5. Results of tank or line testing which reveal a discharge;
G. Discharges exceeding 25 gallons on a pervious
surface;
7. A loss of 100 gallons on an impervious surface other than
secondary containment, or 500 gallons inside a secondary
containment area; or
8. Positive response of a detection device, analytical test
of monitoring well sample, or laboratory report; unless the
monitoring device is found to be defective, and is immediately
recalibrated, or is replaced and calibrated and additional
monitoring does not confirm the previous result.
(b) As related to unmaintained storage tanks, "Discovery"
means actual knowledge of the existence of an unmaintained
storage tank.
(11) "Existing storage tank system" means a storage tank
system used to contain pollutants for which installation has
begun before the effective date of this rule. Installation is
considered to have begun if:
(a) The owner or operator has obtained or has applied for al1
federal, state, and local approvals or permits necessary to begin
physical construction of the site or installation of the tank
system; and if,
(b) Either a continuous on-site physical construction or
installation program has begun or the owner or operator has
entered into contractual obligations which cannot be cancelled
or modified without substantial economic loss.
(12) "Field-erected storage tank" means a storage tank which
is constructed by assembling it on-site at the facility.
(13) "Flow-through process tank" is a tank that forms an
integral part of a production process through which there is a
steady, variable, recurring, or intermittent flow of materials
during the operation of the process. Flow-through process tanks
include tanks associated with vapor recovery units and oil-water
separators. Flow-through process tanks do not include storage
tanks used for the storage of pollutants before their
introduction into the production process or for the storage of
finished products or by-products from the production process.
(14) "Heating oil" means any petroleum based fuel used in the
operation of heating equipment, boilers, or furnaces.
17-762.200(10)(a)5. — 17-762.200(14)
3-12-91
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1991
ABOVEGROUND STORAGE TANK SYSTEMS
17-762
(15) "Hydraulic lift tanK" means a tank that holds hydraulic
fluid for a closed-loop mechanical system used to operate lifts,
elevators, and other similar devices.
(16) "Impervious" means a material with low permeability
which is compatible with a stored pollutant and meets the
definition of a liner as defined in Section 17-761.200 (19),
F.A.C.
(17) "In contact with the soil" means that any portion of n
tank or integral piping physically touches the soil or is
separated from the soil only by a casing, wrapping, or a
structure which is not impervious.
(18) "In-service" means a storage tank system that contains
pollutants or has pollutants regularly added to or withdrawn from
the system.
(19) "Integral piping" means all continuous, on-site piping
up to the union of the piping and dispensing equipment and all
other valves, elbows, joints, flanges, and flexible connectors
attached to a storage tank system through which pollutants flow.
(20) "Liner" means an impervious material that meets the
performance standards of Rule 17-7 62.500(6), F.A.C., that is used
as a method of secondary containment to prevent the discharge of
any pollutant from a storage tank system.
(21) "Maintenance" means the normal operational upkeep to
prevent a storage tank system from releasing pollutants.
(22) "New storage tank system" means a storage tank system
that will be used to contain an accumulation of
pollutants and for which installation begins after the effective
date of this rule.
(23) "Non-residential" means that the tank is not used at a
dwelling.
(24) "Out of service" means a storage tank system that has
been emptied of pollutants and no longer has pollutants regularly
added to or withdrawn from the system, and that is intended to be
returned to service. The storage tank system is empty when all
pollutants have been removed so that no more than one inch in
depth or 0.3 percent by weight of total system capacity of
pollutants remains in the storage tank system.
(25) "Overfill" is a discharge that occurs when a tank is
filled beyond its capacity.
17-762.200(15) -- 17-762.200(25)
3-12-91
-5-
1991
ABOVEGROUND STORAGE TANK SYSTEMS
17-7 62
(26) "Pesticides" means any substance or mixture of
substances intended for preventing, destroying, repelling, or
mitigating any insects, rodents, nematodes, fungi, weeds, or
other forms of plant or animal life or viruses, except viruses or
fungi on or in living man or other animals, which the Department
of Agriculture and Consumer Services shall declare to be a pest,
and any substance or mixture of substances intended for use as a
plant regulator, defoliant, or desiccant.
(27) "Petroleum storage tank system" means a storage tank
system that contains petroleum or petroleum product or a mixture
of petroleum or petroleum product with small quantities (do
minimus, as per 40 CFR Section 280.12) of pollutants or other
substances.
(28) "Pipe" means any hollow cylindrical or tubular
conveyance which is constructed of approved non-earthen materials
(e.g., cathodically protected metal, plastic or fiberglass) and
through which pollutants are designed to flow.
(29) "Pipeline facilities" are new and existing pipe systems,
rights-of-way and any associated equipment, gathering lines,
facilities, or buildings used to transport pollutants, but does
not include airport hydrant piping and bulk product piping.
(30) "Pressure test" means a pressure test, hydrostatic test
or other appropriate tests performed in accordance with
referenced standards in order to determine the integrity of the
integral piping including tests performed on integral piping less
than three inches in diameter where tightness tests cannot be
performed for any operational reason.
(31) "Release" means "discharge" as that term is defined in
Chapter 376, F.S.
(32) "Release detection" means a method of determining
whether a discharge of a pollutant has occurred from the storage
tank system into the environment or into the secondary
containment.
(33) "Repair" means the repair or replacement of any
defective or damaged parts of a storage tank system to meet the
standards contained in Rule 17-762.700, F.A.C.
(34) "Secondary containment" means any system that is used to
provide release detection and release prevention. Examples
include a double-walled tank, a double walled integral piping
system, or a single-walled tank or integral piping system that is
protected by an enclosed concrete vault, liner, or an impervious
containment area.
17-762.200(26) — 17-762.200(34)
3-12-91
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1991 ABOVE GROUND STORAGE TANK SYST EMS 17-762
(35) "Shop-fabricated storage tank" means a storage tank
which is constructed at the tank manufacturer's plant and
transported to the facility for
installation.
(36) "Significant loss" means a loss of pollutant in a
storage tank system which exceeds one percent of the storage
system capacity, one percent of the total weekly output, or 50
gallons, whichever is greater.
(37) "Storage tank system" means an aboveground storage tank
with all integral piping and release detection components.
(38) "Tank" means an enclosed aboveground stationary device
which is constructed primarily of approved non-carthen materials
that provide structural support, which is designed to store
pollutants and the volume of which (including integral piping) is
less than 10 percent beneath the surface of the ground.
(39) "Tightness test" means a precision test, performed in
accordance with Rule 17-761.680, F.A.C., in order to determine
the integrity of integral piping, with an internal diameter of
less than three inches, in contact with the soil, by a tester
registered with the Department of Professional
Regulation under Section 489.113, F.S.
(40) "Unmaintained" means a storage tank that has been
emptied of pollutants and no longer has pollutants regularly
added to or withdrawn from the tank and which is not returned or
intended to be returned to in-service status. Storage tanks
which are or were subject to Rule 17-61, F.A.C., which have been
abandoned in accordance with Rule 17-61.050(3)(c), F.A.C., or
storage tank systems which have been abandoned by emptying them
so that no more than one inch in depth or 0.3% by weight of total
system capacity of pollutants remains in the storage tank system
and reported to the Department prior to the effective date of
this rule shall not be considered "unmaintained".
(41) "Upgrade" means an improvement to a storage tank, such
as adding secondary containment or cathodic protection, that is
made to meet the performance standards of this rule.
(42) "Vehicular fuel" means a petroleum product used to fuel
a motor vehicle, including but not limited to, those used on and
off roads and rails, aircraft, and watercraft.
Specific Authority. 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.200(35) — 17-762.200(History)
3-12-91
-7-
J.99A
ABOVEGROUND STORAGE TANK SYSTEMS
17-762
17-762.210 Referenced standards.
(1) Referenced standards are available for inspection at the
Department of Environmental Regulation's District and Tallahassee
Offices and from the following sources:
(a) American Petroleum Institute (API), 1220 L Street, II.w.,
Washington, D.C. 20005, (202) 682-8372;
(b) National Association of Corrosion Engineers (HACK), Tost
Office Box 218340, Houston, Texas 77218, (713) 492-0535;
(c) National Fire Protection Association (NFPA), Batterymarch
Park, Quincy, Massachusetts 02269, (800) 344-3555;
(d) Steel Tank Institute (STI), 570 Oakwood Road, Lake
Zurich, Illinois 60047, (708) 438-8265; and
(e) Underwriters Laboratories (UL), 333 Pfingsten Road,
(lorthbrook, Illinois 60062, (708) 272-8800.
(2) Titles of Documents.
Specific references to documents listed in (a) through (e)
below are made throughout this Chapter. Each of these documents
or parts thereof are adopted and incorporated as standards only
to the extent that they are specifically referenced in this
Chapter.
(a) American Petroleum Institute:
1. Specification Number 12B, 1977 as supplemented 1985,
"Specification for Bolted Tanks for Storage of Production
Liquids", Twelfth Edition;
2. Specification Number 12D, 1982 as supplemented 1985,
"Specification for Field Welded Tanks for Storage of Production
Liquids", Ninth Edition;
3. Specification Number 12F, 1982 as supplemented 1988,
"Specification for Shop Welded Tanks for Storage of Production
Liquids", Tenth Edition;
4. Specification Number 12P, September 1, 1986,
"Specification for Fiberglass Reinforced Plastic Tanks", First
Edition;
5. Standard Number 620, 1985, "Recommended Rules for Design
and Construction of Large Welded Low-pressure Storage Tanks",
Eighth Edition;
6. Standard Number 650, 1988, "Welded Steel Tanks for Oil
Storage", Eighth Edition;
7. RP 651, (Draft-October 1990) "Cathodic Protection of
Aboveground Petroleum Storage Tanks";
8. RP 652, (Draft-October 1990) "Lining of Aboveground
Petroleum Storage Tanks;
17-762.210(1) — 17-762.210(2)(a)8.
-8-
3-12-91
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1991
ABOVEGROUND STORAGE TANK SYSTEMS
17-762
9. Standard Number 653, (Draft-October 1990) "Tank
Inspection, Repair, Alteration and Reconstruction ", First
Edition;
10. Publication 1110, 1981, "Recommended Practice for the
Pressure Testing of Liquid Petroleum Pipelines";
11. RP 1615, 1987 as supplemented, March 6, 1989,
"Installation of Underground Petroleum Product Storage Systems";
12. RP 1632, 1987 as supplemented March 6, 1989, "Cathodic
Protection of Underground Petroleum Storage Tanks and Piping
Systems";
13. RP 1637, 1986, "Using the API Color-symbol System to Mark
Equipment and Vehicles for Production Identification at Service
Stations and Distribution Terminals"; and
14. RP 2350, March 1987, "Overfill Protection for Petroleum
Storage Tanks."
(b) National Association of Corrosion Engineers:
1. Standard Number RP-0169-83 "Control of External Corrosion
on Underground or Submerged Metallic Piping Systems" (1983); and
2. Standard Number RP-0285-85 "Control of External Corrosion
on Metallic Buried, Partially Buried, or Submerged Liquid Storage
Systems" 1985.
(c) National Fire Protection Association: Standard Number
30, 1987 "Flammable and Combustible Liquids Code".
(d) Steel Tank Institute R892-89, "Recommended Practice for
Corrosion Protection of Underground Piping Networks Associated
with Liquid Storage and Dispensing Systems".
(e) Underwriters Laboratories:
1. Specification 142 "Steel Aboveground Tanks for Flammable
and Combustible Liquids" (1982) ;
2. "Standard 567, "Pipe Connectors for Flammable, Combustible
and LP Gas"; and
3. UL Subject 971, "UL Listed Non-metal Pipe".
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.300 Applicability.
(1) This Chapter applies to all owners and operators of
facilities with an aboveground storage tank system with storage
capacities over 550 gallons that contain pollutants.
(2) The following systems, including their integral piping,
are exempt from the requirements of this Chapter:
(a) Any storage tank containing LP gas;
17-762.210(2)(a)9. -- 17-762.300(2)(a)
3-12-91
-9-
1991
ABOVEGROUND STORAGE TANK SYSTEMS
17-762
(b) Any skid or mobile tank that is moved to a different
location at least every 180 days;
(c) Any tank which contains asphalt or pollutants having a
softening point above 100° F;
(d) Any flow-through process tank system;
(e) Any pipeline facility;
(f) Any stormwater or waste water, collection or discharge
system;
(g) Any emergency spill or overflow containment storage tank
system that is emptied as soon as possible after use and which
remains normally empty;
(h) Any equipment or machinery that contains pollutants for
operational purposes including, but not limited to, hydraulic
lift tanks or fluid and electrical equipment tanks;
(i) Any storage tank system that is part of an emergency
generator system at nuclear power generation facilities
regulated by the Nuclear Regulatory Commission under 10 CFR 50
Appendix A;
(j) Any storage tank system storing pollutants which are
solid or gaseous at standard temperature and pressure;
(k) Any storage tank system containing hazardous wastes as
listed or defined under Subtitle C of the Resource Conservation
and Recovery Act or any mixture of such hazardous wastes with
pollutants;
(1) Any evaporational/degradation system for pesticide
equipment rinse water regulated under Rule 17-660, F.A.C.;
(m) Any storage tank system with a storage capacity of less
than 30,000 gallons used for storing heating oil Cor consumptive
use on the premises where stored;
(n) Any storage tank system that contains small quantities
(de minimus, as per 40 CFR Section 280.12) of pollutants;
(o) Any storage tank system regulated by Chapter 377, Florida
Statutes;
(p) Any storage tank system located entirely within an
enclosed building or vault with an adequate roof and walls to
prevent rainwater from reaching the system and with an impervious
floor containing no valves, drains, or other openings that would
permit pollutants to be discharged from the system;
(q) Any storage tank system regulated under the Toxic
Substances Control Act (15 U.S.C. 2065);
17-762.300(2)(b) — 17-762.300(2)(q)
3-12-91
-10-
-------
1991 ADQVEGROUND STORAGE TANK SYSTEMS
(r) Storage tank systems used for the purpose of temporary
storage of mixtures of pesticides and diluent intended for
reapplication as pesticides; and
(s) Storage tank systems which are not in contact with the
soil, that are constructed of non-corrosive, materials that
contain less than 80% fertilizer materials and which are appl i r>d
on site.
(3) The requirements of this rule shall supersede Chapter
17-61, F.A.C. upon the effective date of this rule.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303,F.S.
History: New 3-13-91.
17-762.400 Registration.
(1) The owner of any storage tank system which is in an
in-service, out of service or unmaintained status and which has a
capacity of more than 550 gallons shall register the storage tank
system with the Department on DER Form 17-7 61.900(2). A complete
registration form shall be submitted to the Department at least
10 days before the start of installation. The owner of an
existing tank system not previously required to be registered
with the Department shall file the registration form no later
than 180 days after the effective date of this Chapter.
(2) The owner of any bulk product facility as defined in
Section 376.301 (2) shall register with the Department on Form
17-761.900 (2) by July 1, 1991.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.410 Registration Fees.
(1) Registration fees are due from the storage tank owner as
indicated in this subsection from all registered in-service and
out of service facilities. Pursuant to federal law,
federally-owned or operated facilities are exempt from
registration fees.
(2) Bulk Product Facilities.
(a) A registration fee of $50.00 per tank shall be
submitted for each initial registration of bulk product facility
tanks by October 1, 1991. The fee shall be paid within 30 days
after receipt of notification by the Department.
(b) Owners of storage tanks with capacities of 250,000
gallons or less shall submit an annual registration fee of $25
per tank by July 1 of each year.
17-762.300(2)(r) — 17-762.410(2)(b)
3-12-91
-11-
19 91
ADQVEGROUND STORAGE TANK SYSTEMS
17-762
(c) Owners of storage tanks with capacities of greater than
250,000 gallons shall submit an annual registration Ceo of ono
dollar per every 10,000 gallons of storage capacity per tank, not
to exceed $1,000.00 per tank, by July 1 of each year.
(d) In no circumstance will the owner of any facil ity pay an
annual fee greater than $5,000 for all storage tanks located at
the facility.
(3) Other Facilities.
(a) A registration fee of $50.00 per tank shall be submitted
for each initial registration of tanks with capacities of more
than 550 gallons. The fee shall be paid within 30 days after
receipt of notification by the Department.
(b) A renewal fee of $25.00 per tank for each storage tank
system not meeting the closure requirements in Rule 17-762.800,
F.A.C., shall be submitted by July 1 each year.
(c) A replacement fee of $25.00 per tank shall be submitted
for each tank that is replaced for the purpose of facility
upgrading. The fee shall be paid within 30 days after receipt of
notification by the Department.
(d) In addition to the registration fee, a late fee of $20.00
per tank shall be collected from any renewal that is received
after July 31.
(4) Each facility shall receive a registration placard upon
payment of all applicable fees. The placard shall be displayed
in plain view in the office, kiosk or other suitable location at
the facility where the tanks are located.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.450 Notification.
(1) The owner or operator of a storage tank system shall
notify the Department of the following items on Form
17-761.900(2):
(a) The date and method of closure at least 30 days before
closure of any storage tank system:
(b) Any change in ownership, no later than 30 days after
ownership has been transferred, of any storage tank system.
Notice of change of ownership shall be provided by the
transferor. The notice shall include a copy of the bill of sale
or a letter of acceptance by the transferee;
17-762.410(2)(C) — 17-762.450(1)(b)
3-12-91
-12-
-------
X991
RBOVEGROUND STORAGE TANK SYSTEM8
1_7^_7 6 2
(c) Replacement or upgrading of any storage tank system at
least 10 days before replacement or upgrading occurs, except for
emergency replacements of tanks, integral piping or release
detection equipment necessitated by a discharge. notification of
emergency replacement shall be provided within 10 days of the
emergency replacement.
(d) Placement of a tank that is in service to out of service
status at least 10 days before the out of service status begins
in accordance with Rule 17-762.800(1), F.A.C.; and
(e) Any other change in facility status, including changes in
the type of pollutant stored, within 30 days of the change.
Changes of different types or blends of petroleum need not bo
reported.
(2) The owner or operator of a storage tank system shall
notify the Department of the establishment or changes to the
method of demonstrating financial responsibility as required in
Rule 17-762.480, F.A.C., within 30 days on Form 17-761.900(3).
(3) owners or operators shall provide at least 24 hours
notice, verbal or written, to the Department or to a locally
administered program under contract with the Department, prior to
the start of a storage tank system closure, internal inspection
performed in accordance with API Standard No. 653, upgrading or
installation.
(4) Owners or operators shall provide notice, verbal or
written, to the Department or to a locally administered program
under contract with the Department, within one working day of
discovery of the loss of a pollutant from a storage tank system
exceeding 100 gallons on impervious surfaces other than secondary
containment and 500 gallons inside the secondary containment
area.
Specific Authority: 376.303, 376.309, F.S.
Law Implemented: 376.303, 376.309, F.S.
History: New 3-12-91.
17-782.460 Reporting.
The owner or operator shall report the following items to the
Department and, if the storage tank system is in a county with a
locally administered program under contract with the Department,
to that locally administered program on Form 17-761.900(1):
(1) Receipt of any integral piping tightness test results
that exceed allowable tolerances within 10 days after receipt of
the test results, and results of any confirmation integral
tightness test within 30 days of the date of the first test. The
report shall be accompanied by a copy of the test report;
17-762.450(1)(C) -- 17-762.460(1)
3-12-91
-13-
1991
ADOVEGROUND STORAGE TANK SYSTEMS
17-762
(2) Unless a pollutant has a more stringent reporting
requirement listed under 40 CFR Section 302 of the federal
Comprehensive Environmental Response Compensation and Liability
Act of 1980, any discharge of a pollutant from a storage tank
system exceeding 25 gallons on pervious surfaces within one
working day of discovery of the discharge; and
(3) A positive response of a release detection device,
monitoring well test, sample or laboratory report within one
working day of discovery unless the positive response is the
result of a prior known release. A positive response shall
include, but is not limited to, failure of a tightness test,
failure of a pressure test on piping containing pollutants, a
sheen or layer of petroleum product or odors of pollutants in a
ground water sample, a sheen or layer of petroleum product on
surface water, an exceedance of ground or surface water standards
for the pollutant stored, or vapor levels in excess of those
allowed by Rule 17-761.640 (2)(e), 1., 2., 4., or 5., F.A.C.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.480 Financial Responsibility.
(1) The owner or operator of a storage tank system shall
demonstrate to the Department the ability to pay for facility
cleanup and third-party liability resulting from a discharge at
any facility. Except for the coverage limits specified in this
subsection, the minimum requirements for financial responsibility
shall be the same minimum requirements provided by the Code of
Federal Regulations, Title 40, Part 280, Subpart H for
underground storage tanks and shall be made by January 1, 1995.
(a) Owners or operators of a storage tank system with a
capacity of 250,000 gallons or less shall demonstrate financial
responsibility for facility cleanup and third-party liability to
a minimum of $1 million per incident and $2 million annual
aggregate.
(b) Owners or operators of a storage tank system with a
capacity greater than 250,000 gallons shall demonstrate financial
responsibility for facility cleanup and third-party liability to
a minimum of S3 million per incident and S6 million annual
aggregate.
(2) Financial responsibility for owners or operators of
petroleum product storage systems may be met or supplemented by
participation in the Florida Petroleum Liability Insurance and
Restoration Program in accordance with Rule 17-769, F.A.C.
17-762.460(2) — 17-762.4 80(2)
3-12-91
-14-
-------
1991 ABOVEGROUND STORAGE TANK 8YSTEM5 17-7 62
(3) notwithstanding the owner's or operator's financial
responsibility status, the owner or operator may, in accordance
with Chapter 376 and 403, F.S., be liable for any discharge at
the facility.
Specific Authority: 376.303, 376.309, F.S.
Law Implemented: 376.303, 376.309, F.S.
History: New 3-12-91.
17-762.500 Performance Standards for New Storage Tank
Systems.
All owners or operators of new storage tank systems shall
comply with the requirements of this section.
(1) New aboveground storage systems with capacities of more
than 550 gallons that contain pollutants shall meet the
requirements of this section at the time of construction.
New or replacement field-erected tanks constructed within an
existing common containment area containing existing
field-erected tanks shall meet the requirements of subsection (6)
of this section by December 31, 1999. Secondary containment
shall be installed beneath the tank.
(2) New storage tank systems shall be made of or lined with
materials that are compatible with the pollutant stored in the
system.
(3) Tanks. All new tanks installed at a facility shall meet
the following standards:
(a) New aboveground storage tanks constructed of steel shall
meet or exceed the requirements found in UL No. 14 2, API Standard
No. 620, API Standard No. 650, API Standard No. 12B, API
Standard No. 12D or API Standard No. 12F. Fiberglass reinforced
plastic tanks shall meet or exceed the requirements found in API
Specification 12P. Any aboveground tank constructed of other
materials shall not be installed unless such materials have been
approved by the Department pursuant to Rule 17-762.860, F.A.C.
All rotationally-molded polyethylene tanks used for the storage
of pollutants other than petroleum products are approved provided
they are installed in accordance with manufacturers
specifications, meet corrosion compatibility requirements (as
indicated by the manufacturer), and have secondary containment in
accordance with Rule 17-762.500 (6), F.A.C.
17-762.480(3) ~ 17-762.500(3)(a)
3-12-91
-15-
19 91
ABOVEGROUND STORAGE TANK SYSTEMS
17-76 2
(b) All new aboveground storage tanks shall be installed in a
manner consistent with the applicable requirements found in IIFPA
Mo. 30. Approval from the local fire marshal or building
department may be needed before construction starts, but shall
not substitute for the requirements of NFPA No. 30.
(c) All new aboveground tanks shall be supported on -i well
drained stable foundation which prevents movement, rolling or
structurally unacceptable settling of the tank and is designed to
minimize corrosion of the tank bottom.
(d) Cathodic protection for tank bottoms.
1. Bottoms of new metal tanks which rest on or in the soil
contained within the secondary containment system shall be
cathodically protected with sacrificial anodes or an impressed
current system which is designed, constructed and installed in
accordance with API RP 651 and NACE Standard Number RP-0285-85.
2. A corrosion professional shall supervise the installation
of the cathodic protection system where this is necessary to
assure that the system has been installed as designed.
3. Each cathodic protection system shall have a test station
or a method of monitoring which enables the owner or operator to
check on the adequacy of cathodic protection.
(e) Exterior Coatings.
Exterior coatings shall be designed and applied to prevent
corrosion and deterioration, or for non-metallic tanks, to
protect the tank from degradation by ultraviolet light. The
condition of the paint or surface coating system shall be
maintained to ensure continuous protection for the life of the
storage tank system.
(f) Overfill Protection.
1. All owners or operators shall ensure that discharges from
overfills of the storage tank system do not occur. The owner or
operator shall ensure that the volume available in the tank is
greater than the volume of product to be transferred to the tank
before the transfer is made and shall ensure that the transfer is
monitored to prevent overfilling.
2. All tanks shall be equipped with:
a. A gauge or other measuring device which accurately shows
the level of pollutant in the tank and is visible to the person
who is monitoring the filling. The filling of the tank shall be
monitored during filling in accordance with the provisions of API
Recommended Practice 2350, if applicable; or
b. A high level warning alarm; or
c. A high level liquid pump cutoff controller or an
equivalent device.
17-762.500(3)(b) — 17-762.500(3)(f)2.C.
3-12-91
-16-
-------
1991
ABOVEGROUND STORAGE TANK SYSTEH8
17.17-6.2
3. Manual tank gauging may be used for tanks with a capacity
of 5000 gallons or less which are not loaded with high-volume
pressurized nozzles. Such tanks, however, which use manual tank
gauging shall not be loaded beyond 95% capacity.
4. All product loading areas where tank filling connections
are made with vehicles shall be equipped with a spill containment
system or other spill containment equipment of sufficient volume
to prevent the discharge of the pollutant contained in the
transfer hose when it is detached from the tank fill pipe.
(g) All field-erected tanks shall be inspected in accordance
with API Standard 653. Any deficiency discovered during the
inspection shall be repaired before the storage tank is returned
to service.
(4) Piping. All integral piping, bulk product piping and
hydrant piping installed after the effective date of this rule
which are in contact with the soil shall be constructed with
secondary containment. Integral piping containing heavy fuel
oils such as American Society for Testing Materials (ASTM) grades
5 and 6 residual oils, intermediate fuel oils with a viscosity of
30 and higher, or Bunker C are exempt from this requirement. All
integral piping systems which are not in contact with soil shall
be constructed in accordance with accepted engineering practices
and NFPA 30, Chapter 3. Integral piping in contact with the soil
shall be constructed of one or more of the following materials
and in accordance with the following referenced standards:
(a) Fiberglass reinforced plastic in accordance with UL 971
and UL 567;
(b) Cathodically protected coated steel in accordance with
NFPA Standard 30, API RP 1615, API RP 1632, NACE RP-0169-83 and
NACE RP-0285-B5 or STI R892-89, provided that:
1. The piping is coated with a suitable dielectric material;
2. Any field-installed cathodic protection system is designed
by a corrosion professional;
3. Any impressed current system is designed to allow for a
determination of operating status; and
4. All cathodic protection systems are operated and
maintained In accordance with Rule 17-762.730, F.A.C.; or
(c) Other material, design, construction or corrosion
protection as determined by the Department to be sufficient to
prevent the release of any stored pollutant in a manner that is
no less protective of human health and the environment than the
requirements of this section. Such a determination shall be made
in accordance with Rule 17-762.850, F.A.C.
17-762.500(3)(f)3. -- 17-762.500(4)(c)
3-12-91
-17-
1991
ABOVEGROUND STORAGE TANK SYSTEMS
17-762
(5) Airport and Seaport Hydrant Pits.
Underground hydrant pits shall be installed with a spill
catchment basin, secondary containment or other spill prevention
equipment to prevent the discharge of pollutants during fue]ing
of aircraft or vessels or at any other time the hydrant system is
in use. Any such equipment shall be sealed to and around the
hydrant piping with an impervious, compatible material.
(6) Secondary Containment
(a) No person shall construct, use or maintain any new
aboveground tank without having constructed around and under it a
secondary containment system. An impervious secondary
containment system shall be designed and installed to direct
any release to a monitoring point or points or a treatment system
if necessary. Except as provided in Chapter 17-762.500 (6)(a)
2., F.A.C., secondary containment shall conform to the
requirements of NFPA 30, Chapter 2-2.3, regardless of whether the
tank is in contact with the containment or supported above it.
Storage tank systems containing heavy fuel oils such as American
Society for Testing Materials (ASTM) grades 5 and 6 residual
oils, intermediate fuel oils with a viscosity of 30 and higher,
or Bunker C are exempt from the requirements for
secondary containment and release detection. The secondary
containment system, including the area under the tanks,
shall:
1. Be impervious to the types of pollutants stored in the
tanks;
2. Contain at least 110 percent of the volume of the tank or
of the largest tank within the secondary containment unless the
tank is contained in an enclosed concrete vault or is a double
wall tank; and
3. If not roofed or otherwise protected from the accumulation
of rainfall, be equipped with a manually controlled pump or
siphon, or a gravity drain pipe which has a manually controlled
valve to remove stormwater that collects within the secondary
containment system. All pumps, siphons and valves must be
properly maintained and kept in good condition to prevent
stormwater leaking from the system. If gravity drain pipes are
used, all valves shall be locked in a closed position except when
the operator is in the process of draining water from the area.
Gravity drain pipes shall be designed and constructed to prevent
a release in the event of fire. All piping passing through
secondary containment walls shall be sealed around the outside of
the piping with an impervious compatible material to prevent the
discharge of pollutants.
17-762.500(5) -- 17-762.500(6)(a)3.
3-12-91
-18-
-------
1991 ABOVEGROUND STORAGE TANK SYSTEMS 17-7 6 ?.
Stormwater or industrial wastewater emanating from the
secondary containment system and tank drawdown water shall comply
with all applicable state and federal requirements before
discharge. Accumulated stormwater shall be drawn off within one
week of a rainfall event.
(b) Any synthetic liner used as secondary containment must be
puncture resistant, have a permeability rate to the pollutant
stored of lxlO-7 cm/sec. or less, be capable of containing
pollutants for at least 30 days, and be of a type approved by the
Department pursuant to Rule 17-762.860, F.A.C. Criteria to be
reviewed by the Department for approval of a synthetic liner
shall include thickness, strength, durability, and compatibility.
(c) Any concrete liner used as secondary containment shall be
designed and constructed to be product tight, and of sufficient
thickness and strength to prevent a discharge during its
operating life.
(d) Secondary containment shall be designed ancl installed to
direct a discharge from the storage tank system to a monitoring
point or points.
(e) Secondary containment incorporating clay-based composite
products or off-site natural clays shall be approved by the
Department in accordance with 17-762.850, F.A.C.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.510 Performance Standards for Existing Shop-Fabricated
Storage Tank Systems.
(1) Vehicular Fuel Storage Systems. All shop-fabricated
storage tanks with capacities greater than 550 gallons that
contain vehicular fuel and that were subject to Chapter 17-61,
F.A.C., shall have met the requirements of such chapter by
January 1, 1990. By December 31, 1999, all vehicular fuel
storage systems shall meet the requirements of Rule 17-762.500
(3)(d) through (f) and (4), F.A.C., for cathodic protection,
exterior coatings, overfill protection, and integral piping in
contact with the soil.
(2) All shop-fabricated storage tanks that contain vehicular
fuel which store or use 1,000 gallons or less per month or 10,000
gallons or less per year shall meet the requirements of Rule
17-762.500(3)(d) through (f), and (4), and (6), F.A.C., by
December 31, 1999.
17-762.500(6)(a)3. — 17-762.510(2)
3-12-91
-19-
1991
ABOVEGROUND STORAGE TANK SYSTEMS
17-762
(3) All integral piping in contact with the soil which is
installed on an existing storage tank system containing
pollutants after the effective date of this rule, excluding
integral piping installed during a repair, shall meet the
requirements of Rule 17-762.500(4) and 17-762.GOO(4), F.A.C., by-
December 31, 1999.
(4) All marine fueling facilities, all storage tanks
containing other pollutants that are not vehicular fuels, and
petroleum storage tank systems other than those containing
ammonia, chlorine, pesticides and derivatives thereof, shall m^et.
the requirements of Rule 17-762.500(3)(d) through (f) and (4),
and (6), F.A.C., by December 31, 1999.
(5) In place of installing the secondary containment
underneath the storage tank, the interior bottom of the storage
tank and at least 18 inches up the sides may be coated with an
epoxy coating or other suitable material which is impervious to
the pollutant to be stored in accordance with API RP 652, by
December 31, 1999. Secondary containment must nonetheless be
installed around the storage tank as required by Rule
17-762.500(6), F.A.C.
(6) A closure assessment shall be performed in accordance
with Section 17-7 62.800(2)(d), F.A.C., before the completion of
the installation of secondary containment.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.520 Performance Standards for Existing Field-Erected
storage Tank Systems.
(1)Tanks
(a) All field-erected storage tanks that contain pollutants
shall meet the requirements of Rule 17-762.500 (3) (d) through
(g) and (6), and perforin a baseline internal inspection in
accordance with API Standard 6&3, by December 31, 1999.
(b) When the bottom of a storage tank is replaced, secondary
containment must be installed beneath the tank. In place of
installing secondary containment underneath an existing storage
tank, the interior bottom of the tank and at least 18 inches up
the sides may be coated with an epoxy coating or other suitable
material which is impervious to the pollutant to be stored in
accordance with API RP 652. Secondary containment must
nonetheless be installed around the storage tank as required by
Rule 17-762.500(6), F.A.C., by December 31, 1999.
17-762.510(3) — 17-762.520(1)(b)
3-12-91
-20-
-------
991
ABOVEGROUND STORAGE TANK SYSTEMS
17-7 6 2
(2) Piping
(a) All integral piping in contact with the soil, except Cor
hydrant piping and.bulk product piping shall be upgraded with
secondary containment according to the standards of Rule
17-762.500 (4), F.A.C., by December 31, 1999.
(b) Instead of installing secondary containment, existing
hydrant piping and bulk product piping shall:
1. Be assessed for structural integrity and tightness in
accordance with API RP 1110 or an equivalent method by
January 1, 1993. Chapter 17-762.700, F.A.C., procedures shall be
followed if repairs are needed as a result of the assessment, and
discharge response requirements of Rule 17-762.820, F.A.C., shall
be followed if a release is discovered. An annual pressure test
shall be performed thereafter until December 31, 1999, when
facility owners and operators must comply with Chapter
17-762.600(7), F.A.C.
2. Be eguipped with a cathodic protection system installed or
approved by a corrosion professional in accordance with Rule
17-762.500(4)(b), F.A.C., by December 31, 1999 for piping in
contact with the soil.
(3) Hydrant pits shall meet the requirements of Rule
17-762.500(5), F.A.C., by December 31, 1999.
(4) A closure assessment shall be performed in accordance
with Section 17-762.800(2)(d), F.A.C., before the completion of
the installation of secondary containment.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.600 General Release Detection Standards.
(1) Owners and operators of all storage tank systems shall
provide a method, or combination of methods, of release detection
that can detect a discharge from the tank and integral piping.
The owner or operator shall retain any performance claims and
their manner of determination described in writing by the
manufacturer or installer, for the life of the storage tank
system.
(2) Owners or operators of all aboveground storage tank
systems containing pollutants shall, at least once a month,
thoroughly inspect the exterior of each tank and the secondary
containment or dikes surrounding the tank for wetting,
discoloration, blistering, corrosion, cracks, or other signs of
structural damage or leakage.
17-762.520(2) — 17-762.600(2)
-21-
3-12-91
1991
ABOVEGROUND STORAGE TANK SYSTEMS
17-762
(3) Any storage tank system which cannot provide release
detection in accordance with this section shall be closed in
accordance with Rule 17-762.800, F.A.C., by the date upon which
release detection is required to be provided.
(4) Release detection for integral piping with secondary
containment shall be monitored monthly after installation and
shall consist of:
(a) Interstitial monitoring for double walled piping capable
of detecting a discharge through the inner wall; or
(b) Interstitial monitoring for integral piping with liners:
1. Capable of detecting a discharge through the inner wall;
and
2. Constructed so ground water, rainfall or soil moisture
will not render the testing or sampling methods used inoperative
so that a discharge could go undetected for more than 30 days.
(5) By December 31, 1993 all existing integral piping in
contact with the soil, except as set forth in Section
17-762.600(7), F.A.C., shall be provided with a method, or
combination of methods, of release detection that can detect a
discharge from integral piping and that is installed, calibrated
operated and maintained in accordance with the manufacturer's
instructions. Release detection for existing integral piping
shall consist of interstitial monitoring which meets the
requirements of subsection (4) of this section or monitoring
wells which meet the construction standards contained in Rule
17-761.640(1) or (2), F.A.C. Owners or operators shall monitor
the release detection system at least once a month. Release
detection for piping which passes under roadways, runways,
building foundations or similar obstacles shall be located at th
nearest practicable location to the source.
(6) Monitoring wells which do not meet the construction
standards contained in Rule 17-761.640(1) or (2), F.A.C., shall
be upgraded to those standards by December 31, 1999. Monitoring
wells which cannot meet these requirements shall be properly
closed in accordance with Rule 17-532.500(4), F.A.C. Facilities
using a Spill Prevention Control and Countermeasure plan as
required by 40 CFR Section 112 or a ground water
monitoring plan meeting the requirements of Rule 17-28.700,
F.A.C., shall upgrade to the monitoring requirements of Rule
17-762.600(4), F.A.C., by December 31, 1999.
17-762.600(3) — 17-762.600(6)
3-12-91
-22-
-------
199.1 ADOVECROUND STORAGE TANK SYSTEMS 11-™?-
(7) Hydrant piping and bulk product piping in contact with
the soil shall, by December 31, 1999, be installed with a release
detection system or have a pressure test program establi r,hod that
is sampled or performed on a quarterly basis. Aboveground piping
shall be pressure tested on an annual basis except where it is
above secondary containment. The pressure testing to be
performed under this subsection shall be conducted in a manner so
as to utilize at least one and one/half times the maximum
allowable working pressure for the piping system in accordance
with 33 CFR 156.170(c)(4) or An 1110.
(8) All existing storage tanks with monitoring wells
installed to comply with Rule 17-61, F.A.C., shall maintain these
release detection systems and monitor monthly until secondary
containment is installed as required by this chapter.
(9) Existing storage tanks that are upgraded only with
internal lining shall install or maintain a release detection
system which meets the construction standards contained in Rule
17-761.640 (1) or (2), F.A.C., and which is capable of detecting
a release from the tank at the time of upgrading with internal
lining. Owners or operators shall monitor the release detection
system at least once a month.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.700 Repairs to Storage Tank Systems.
(1) In the event any component of a storage tank system is
discovered to have discharged or contributed to the discharge of
a pollutant, that component shall be isolated from the system, if
possible, and not used until the component is repaired or
replaced. If the storage tank system or any component of the
system cannot be operated in compliance with this Chapter, the
storage tank system shall not be operated until the component has
been repaired or replaced. If a tank has discharged or
contributed to the discharge of a pollutant, that tank shall be
taken out of service until the tank has been repaired or
replaced. However, the restrictions against storage tank and
system operation as contained in this subsection shall not apply
if such tank or system contains heating oil or other fuels used
solely for the generation of electricity where the removal of the
storage system from service would result in the shut down of
electrical generating units serviced by such system.
17-762.600(7) — 17-762.700(1)
3-12-91
-23-
19 9_1 ADOVEGROUND STORAGE TANK SYSTEMS 11-1 62
(2) All repairs to storage tank systems shall be made in a
manner which will prevent any discharge from the storage tank
system due to structural failure or corrosion Cor the remaining
useful life of the storage tank system.
(3) All repairs to damaged or defective storage tank sy::.tem
components shall be made to restore the structural integrity of
the storage tank system.
(1) All pipe sections and fittings from which a pollutant ha:-;
been discharged or which is otherwise damaged or defective shall
be repaired in accordance with manufacturer's specifications or
in accordance with Rule 17-762.210, F.A.C., referenced standards.
(5) All integral piping in contact with the soil shall be
tightness tested or pressure tested, as applicable, before being
placed back in service.
(6) All repaired hydrant piping and bulk product piping shall
be pressure tested in accordance with API RP 1110 or an
equivalent method before being placed back in service.
(7) Within six months of the repair of any cathodically
protected storage tank system, the cathodic protection shall be
tested in accordance with Rule 17-762.730, F.A.C., if the repair
affects the integrity of the cathodic protection system.
(8) Owners or operators shall maintain records of any
repairs, excluding routine maintenance, to a storage tank system
for the remaining life of the system.
(9) Secondary containment systems shall be repaired as
necessary to maintain product tightness and containment volume of
the system, including, but not limited to sealing cracks in
concrete, repairing punctures, and maintaining containment walls.
(10) All field-erected tanks shall be repaired in accordance
with API Standard 653.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: Hew 3-12-91.
17-762.710 Recordkeeping.
All records required to be kept pursuant to this Chapter
shall, unless otherwise specified in the text, be maintained in
permanent form for two years and shall be available for
inspection by the Department at the facility. If records are not
kept at the facility, they shall be available at the facility or
other location acceptable to the Department upon five working
days notice. Records of the following are required as a minimum:
17-762.700(2) — 17-762.710
3-12-91
-24-
-------
1991
ABOVEGROUND STORAGE TANK SYSTEMS
17-762
(1) Measurements and reconciliations of inventory;
(2) Results of examinations of monitoring wells and other
release detection systems;
(3) Dates of upgrading of existing storage tank systems;
(4) Results of external maintenance examinations of storage
tank systems in accordance with Chapter 17-762.600(2), F.A.C., or
internal inspection results of field-erected storage tank
systems;
(5) Results of all pressure tests;
(6) Results of tightness tests of integral piping;
(7) Descriptions and dates of repairs;
(8) Closure assessment reports, if the location continues as
a facility;
(9) Certification of Financial Responsibility on Form
17-761.900(3);
(10) Records of types of fuels stored per tank; and
(11) Release detection system performance claims.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.720 Inventory Requirements.
(1) Owners or operators shall maintain inventory records for
each tank that contains vehicular fuel. Inventory records shall
be reconciled weekly. Storage systems that are elevated above
the soil, resting on a concrete pad or other impervious surface,
or that meet the performance standards for new storage tank
systems are exempt from the reguirements of this section. Unless
a more frequent recording period is desired, the following
information shall be recorded each week:
(a) The type of vehicular fuel;
(b) Physical inventory;
(c) Inputs and outputs of vehicular fuel; and
(d) Amount of water in the tank.
(2) Losses from each recording period shall be averaged. For
any average which indicates a significant loss, the owner or
operator shall investigate the cause of any discrepancy. The
investigation shall not stop until the source of the discrepancy
has been found, using the following investigative procedure:
(a) Inventory, input, and output records shall be checked for
arithmetical error;
(b) Inventory shall be checked for error in measurement;
17-762.710(1) -- 17-762.720(2)(b)
3-12-91
-25-
A-9.91
ABOVEGROUND STORAGE TANK SYSTEMS
17_-7 62
(c) If the significant loss is not reconcilable by steps (a)
and (b), or cannot be affirmatively demonstrated to be the
result of theft, the accessible parts of the storage system shall
be checked for damage or leaks;
(d) Monitoring wells and release detection systems shall be
checked for signs of a discharge;
(e) Calibration of the inventory measuring system and any
dispensers shall be checked;
(f) If the investigation does not reveal the source of the
inventory discrepancy and if such discrepancy continues for three
consecutive weeks, or if the Department determines it to be
necessary, the entire storage tank system, excluding the vent but
including joints and remote fill lines, shall be tested or
internally inspected to determine if the system is product tight;
and
(g) If evidence of a discharge is discovered, and the
discharge can not be attributed to unusual operating conditions,
the leaking or defective component of storage tank system shall
immediately be deactivated, and be repaired, if possible, in
accordance with Rule 17-762.700, F.A.C. If the storage tank
system cannot be repaired, it shall be closed in accordance with
Rule 17-762.800, F.A.C.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.730 Operating Requirements for Cathodic Protection.
(1) All cathodic protection systems shall be operated and
maintained to provide continuous corrosion protection to the
metal components of those portions of the tank and integral
piping in contact with the soil.
(2) All storage tanks systems equipped with any type of
cathodic protection must be inspected and tested by a corrosion
professional or a cathodic protection tester within six months of
installation and at least every three years thereafter in
accordance with the criteria contained in NACE RP-0285-85.
(3) All storage tank systems equipped with impressed current
cathodic protection shall be inspected every two months to ensure
the cathodic protection is functioning in accordance with design
criteria.
17-762.720(2)(C) -- 17-762.730(3)
3-12-91
-26-
-------
1991 ABOVEGROUNP STORAGE TANK BYBTEHS 17-762
(4) All owners or operators of storage tank systems using any
type of cathodic protection must maintain records of the results
of the testing from the last two inspections of sacrificial anode
systems or from the last three inspections for impressed current
systems as required in this Section.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.800 Out of Service and Closure Requirements.
(1) Out of Service Storage Tank Systems.
(a) Owners or operators of all storage tank systems which are
taken out of service for any period of time shall continue to
operate and maintain corrosion protection with
Rule 17-762.730, F.A.C., except that impressed current cathodic
protection shall be inspected every six months.
(b) Owners or operators of storage tanks systems which are
taken out of service shall also:
1. Leave vent lines open and functioning; and
2. Secure or screen manways and secure all other lines,
pumps, and ancillary equipment.
(c) Owners or operators returning an out of service storage
tank system to service must perform tests to insure the
structural integrity of the storage tank system unless the system
has been emptied solely for the purpose of changing the type of
pollutant stored. Field-erected tanks shall be tested in
accordance with API Standard 653. A tightness test which meets
the requirements of Rule 17-761.680, F.A.C., shall be performed
on any integral piping in contact with the soil. A pressure test
shall be performed on all bulk product piping and hydrant piping.
If the storage tank is required to be upgraded during the period
in which it is out of service, the storage tank system must be
upgraded or replaced before it is returned to service.
(2) Closure of Aboveground Storage Tank Systems.
(a) Owners of unmaintained storage tank systems shall
permanently close the system within 180 days of the effective
date of this rule or of discovery of the existence of the
unmaintained storage tank system.
(b) Owners or operators of storage tank systems shall notify
the Department at least 30 days prior to closure of a storage
tank system.
(c) Storage tank systems shall be closed as follows:
1. All liquid and sludge must be removed from the tank and
integral piping. Any waste products removed must be disposed of
in accordance with all applicable state and federal requirements;
17-762.730(4) — 17-762.800(2)(c)1.
3-ia-9i
-27-
199JL.
ABOVEGROUND STORAGE TANK SYSTEMS
17-7 62
2. The tank shall be rendered free of'pollutant vapors to
prevent hazardous explosive conditions. Provisions shall bo made
for natural breathing of the tank to ensure that the tank renin i hp
vapor free;
3. All integral piping shall be disconnected and removed or
securely capped, blinded or plugged. Manways must be screened or
secured to prevent access;
4. The tank shall be protected from flotation in accordance
with good engineering practices; and
5. If applicable, all monitoring wells shall be properly
abandoned according to state and local government requirements.
(d) Closure Assessment.
1. Before permanent closure, replacement, installation of
secondary containment or change in service from a pollutant to a
non-regulated substance is completed, owners or operators shall
determine if a release has occurred and sample for the presence
of a release where contamination is most likely to be present at
the facility. A closure assessment is not required for eligible
sites participating in the Early Detection Incentive (EDI) and
Reimbursement Programs pursuant to Section 376.3071, F.S., the
Florida Petroleum Liability Insurance and Restoration Program
(FPLIRP) pursuant to Section 376.3072, F.S., or for storage tank
systems initially installed with secondary containment. Also,
storage tank systems for which a closure assessment was completed
at the time of upgrading with secondary containment shall not be
required to conduct a subsequent closure assessment. In
selecting sample types, sample locations, and measurement
methods, owners or operators must consider the method of closure,
the nature of the stored pollutant, the type of backfill, the
depth to ground water, and other factors appropriate for
identifying the presence of a release. Owners or op/erators shall
ensure that all samples or measurements taken during a closure
are accomplished with proper quality assurance and quality
control.
2. If water samples are collected during a closure
assessment, they shall be analyzed in accordance with EPA Test
Method 602 for storage tank systems containing gasoline or
equivalent petroleum products, or EPA Test Methods 602 and 610
for storage tank systems containing kerosene, diesel fuel, or
other equivalent petroleum products. If vapor samples are
collected during a closure assessment, they shall be screened
with a flame ionization detector, or a photo ionization detector
if a demonstration can be made that the results are equivalent to
those obtained from a flame ionization detector.
17-762.800(2)(c)2. — 17-762.800(2)(d)2.
3-12-91
-28-
-------
1991
ABOVEGROUND STORAGE TANK 8Y8TEMS
17-762
3. A report of the closure assessment shall be prepared and
submitted to the Department or to a locally administered program
under contract with the Department by the owner or operator
within 60 days after completion of permanent closure,
replacement, installation of secondary containment or change in
service from a pollutant to a non-regulated substance. The
report shall include sample types, sample location and
measurement methods, a site map, methods of monitoring quality
control and results of all analysis of samples from the site and
shall be submitted on Form 17-761.900(6).
4. An owner or operator installing secondary containment Cor
a tank with a capacity less than 1100 gallons, and which is
elevated from the ground such that the ground surface or soils
beneath the tank are clearly visible, shall determine whether a
release has occurred by a visual inspection of the tank and the
soil under the tank. If the visual inspection results in a
determination that there has been no release, the owner or
operator shall be exempt from any further closure assessment
requirements of Rule 17-762.800(2)(d), F.A.C. In such event, the
owner or operator shall certify to the Department or appropriate
local program that they have determined that there has been no
release.
5. If contaminated soils, contaminated ground water, free
product, or vapor levels in excess of those listed in Rule
17-762.460(3), F.A.C., for storage tank systems containing
pollutants are discovered, owners or operators shall immediately
undertake to contain, remove, and abate the discharge in
accordance with Chapter 376 and 403, F.S. If the contamination
present is subject to the provisions of Chapter 17-770, F.A.C.,
corrective action shall be conducted in accordance with that
cleanup criteria rule.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.820 Discharge Response.
(1) When evidence of a discharge from a storage tank system
is discovered and reported in accordance with Rule 17-762.460,
F.A.C., the owner or operator shall remove as much of the
pollutant from the system as is necessary to prevent further
release to the environment. Fire, explosion, and vapor hazards
shall be identified and mitigated. The storage tank system shall
be repaired, if possible, in accordance with Rule 17-762.700,
F.A.C. If the storage tank system cannot be repaired, it shall
be closed in accordance with Rule 17-762.800(2), F.A.C.
17-762.800(2)(d)3. — 17-762.820(1)
-29-
3-12-91
1991
ABOVEGROUND 8TORAGE TANK SYSTEMS
17-762
(2) Any owner or operator of a facility discharging a
pollutant shall immediately undertake to contain, remove, and
abate the discharge in accordance with Chapters 376 and *103, F.S.
If the contamination present is subject to the provisions of
Chapter 17-770, F.A.C., corrective action shall be conducted in
accordance with that clean-up criteria rule.
(3) Owners or operators shall follow the procedures specified
in this Section when significant loss investigations confirm a
discharge.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-7 62.840 Locally Administered Programs.
(1) Pursuant to Section 376.3073, F.S., the Department may
contract with local governments Cor the administration of certain
departmental responsibilities under this rule. A list of
participating locally administered programs may be obtained from
the Department.
(2) Final agency action related to the functions which may be
carried out by a locally administered program shall be taken by
the Department.
(3) This section does not apply to local governments with
approved local programs authorized pursuant to Section 376.317,
F.S., except to the extent that those local governments have
contracted with the Department for specific duties. Those local
programs may have independent authority to take final action
related to their ordinances. Final agency action resulting from
a contracted function will continue to be taken by the
Department.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.850 Approval of Alternate Procedures.
(1) The owner or operator of a facility subject to the
provisions of this Chapter may request in writing a determination
from the Department that any requirement of this Chapter should
not apply to such facility, and shall request approval of
alternate procedures.
(2) The request shall set forth at a minimum the following
information:
17-762.820(2) — 17-762.850(2)
3-12-91
-30-
-------
1991
ABOVEGROUND STORAGE TANK SYSTEMS
17-7 62
(a) The facility for which an exception is sought;
(b) The specific provision of Rule 17-762, F.A.C., from which
an exception is sought;
(c) The basis for the exception;
(d) The alternate procedure or requirement for which opprovnl
is sought and a demonstration that the alternate procedure or
requirement provides a substantially equivalent degree of
protection for the lands, surface waters, or ground waters of the
state as the established requirement; and
(e) A demonstration that the alternate procedure or
requirement is at least as effective as the established
procedures or requirement.
(3) The Secretary or his designee shall approve or deny each
alternate procedure using the criteria in Subsection (2) and
shall provide written notice of such action.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.860 Approval of Storage Tank Systems and Release
Detection Equipment.
Storage tank systems, including the tank, integral piping,
and release detection components (equipment), shall be
constructed in accordance with the applicable referenced
standards of Rule 17-762.210, F.A.C. An owner or operator of a
facility may seek Department approval of equipment different than
such standards before installation or use. Any provisions of
this chapter which reference this section are subject to the
approval procedures set forth herein. Information related to the
request for approval shall be submitted to the Department with a
demonstration that the equipment will provide equivalent
protection or meet the appropriate performance standards
contained in this Chapter. Equipment approval requests may
include, but not be limited to, storage tanks, liners, piping,
overfill protection, release detection and reuse or
remanufacturing of tanks. Within thirty days of request, the
Department may request additional information if necessary. The
Department shall approve or deny completed requests within 90
days of receipt.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.850(2)(a) — 17-762.860 (History)
3-12-91
-31-
1991
ADOVEGROUND STORAGE TANK SYSTEMS
17-762
17-762.900 Forms.
The following forms used by the Department in the Underground
Storage Tank Systems rule in Rule 17-761.900, F.A.C., are adoptod
and incorporated by reference in this
Section. The forms are listed by rule number, and the
corresponding Rule 17-761.900, F.A.C. form number and with the
subject title and effective date. Copies of forms may be
obtained by writing to the Administrator, Storage Tank Regulation
Section, Department of Environmental Regulation, 2600 Blair Stone
Road, Tallahassee, Florida 32399-2400.
(1) 17-761.900(1) Discharge Reporting Form, December 10,
1990.
(2) 17-761.900(2) Storage Tank Registration Form, December
10, 1990.
(3) 17-761.900(3) Financial Responsibility Form, December 10,
1990.
(4) 17-761.900(4) Alternate Procedure Form, December 10,
1990.
(5) 17-761.900(6) Closure Assessment Form, December 10, 1990.
Specific Authority: 376.303, F.S.
Law Implemented: 376.303, F.S.
History: New 3-12-91.
17-762.900 — 17-762.900 (History)
3-12-91
-32-
-------
PER 1992 MINERAL ACID ABOVEGROUND STORAGE TANKS 17-767
CHAPTER 17-767
Mineral Acid Aboveground Storage Tanks
-767.100 Intent
-767.200 Definitions
-767.300 Applicability
-767.400 Registration
-767.410 Registration Fees
-767.450 Notification
-767.460 Reporting of Discharges
-767.500 Containment and Integrity Plan
-767.700 Recordkeeping
-767.840 Locally Administered Programs
-767.850 Discharge Requirements
-767.900 Forms
Effective 1-7-92
PER 1992 MINERAL ACID ABOVEGROUND STORAGE TANK8 17-767
17-767.100 Intent.
The purpose of this rule is to minimize spills and the
environmental risks of spills, releases and discharges
occurring from aboveground storage tanks which have
capacities of greater than 110 gallons and contain
hydrobromic, hydrochloric, hydrofluoric, phosphoric or
sulfuric acid. This rule implements the requirements of
Chapter 376, Florida Statutes,
specific Authority: 376.322(3), F.S.
Law Implemented: 376.322, F.S.
History: New 1-7-92.
17-767.200 Definitions
The definitions found in Section 376.321, F.S., are
adopted herein, including the definitions for the terms
"facility", "containment and integrity plan", "mineral
acids", "tank" and "secondary containment". In addition, the
following words, phrases or terms used in this Rule, unless
the context indicates otherwise, shall have the following
meaning:
(1) "Discovery" means, as related to a discharge,
initial detection of mineral acids in ground water or surface
water or the initial detection of soil contamination,
resulting from the discharge of mineral acids in quantities
greater than the amounts reportable in Section 17-767.460,
F.A.C.
(2) "Existing storage tank" means a storage tank used to
contain mineral acids for which installation has begun before
the effective date of this rule. Installation is considered
to have begun if:
(a) The owner or operator has obtained or has applied
for all federal, state, and local approvals or permits
necessary to begin physical construction of the site or
installation of the tank; and,
(b) Either a continuous on-site physical construction or
installation program has begun or the owner or operator has
entered into contractual obligations which cannot be
cancelled or modified without substantial economic loss.
(3) "Inspection and maintenance plan" means a plan which
establishes the procedures used to prevent releases of
mineral acids.
(4) "New storage tank" means a storage tank that will be
used to contain mineral acid and the installation of which
begins after the effective date of this rule.
17-767.100 - 17-767.200(4)
Effective 1-7-92
2
-------
PER 1992 MINERAL ACID aBOVEGSOlTWS STORAGE TAKKS 17-767
(5) "Upgrade" means the replacement: of a storage tank or
the inctallntion cf secondary containment.
Specific Authority: 376.322 (3), F.S.
Law Implemented: 376.322, F.S.
History: New 1-7--S2.
17-767.300 Applicability.
(1) The requireraents of this Chapter apply to all owners
and operators of a facility with an aboveground storage tank
with a storage capacity more than 110 gallons that contain
mineral acids.
(2) The following systems are exempt 'from the
requirements of this Chapter:
(a) Any mobile or skid tank that is moved at least every
180 days;
(b) Any tank containing mineral acids which are less
than 20 percent by weight of the solution;
(c) Any storage tank of 110 gallons or less capacity
which contain mineral acids;
(d) Any flow-through process tank; and
(e) Any storage tank containing mineral acids which are
regulated as hazardous wastes under Subtitle C of the
Resource Conservation and Recovery Act.
Specific Authority: 376.322(3), F.S.
Lav Implemented: 376.322, F.S.
History: New 1-7-92.
17-767.400 Registration.
The owner of any new or existing storage tank that
contains mineral acids and is not exempted in Section
17-767.300(2), F.A.C., shall register the storage tank with
the Department on DER Form 17-761.900(2). A complete
registration form shall be submitted to the Department within
90 days of the effective date of this rule. A complete
registration form shall be submitted to the Department or
contracted local program at least 30 days before the start of
installation for any new storage tank.
Specific Authority: 376.322(3), F.S.
Law Implemented: 376.323, F.S.
History: Hew 1-7-92.
17-767.410 Registration Fees.
(1) Registration fees are due from the storage tank
owner for all registered facilities as indicated in this
subsection.
(2) Registration Fee Schedule.
17-767.200(5) - 17-767.410(2)
Effective 1-7-92
3
DER 1992 MINERAL ACID ABOVEGROPND STORAGE TANKS 17-767
(a) Owners of storage tanks shall submit to the
Department an initial registration fee of $50.00 per storage
tank. The fee shall be paid within 30 days after receipt of
billing by the Department.
(b) Owners of storage tanks with capacities of 125,000
gallons or less shall submit an annual renewal registration
fee of $25 per tank within 30 days after receipt of billing
from the Department.
(c) Owners of storage tanks with capacities of greater
than 125,000 gallons shall submit an annual renewal
registration fee of one dollar per every 5,000 gallons of
storage capacity per tank within 30 days after receipt of
billing from the Department.
(d) Total annual registration fees for renewals shall
not exceed $1,000 per facility.
(3) Each facility shall receive a registration placard
upon payment of all applicable fees. The placard shall be
available for inspection by the Department and filed with
records maintained in accordance with Rule 17-767.700, F.A.C.
Specific Authority: 376.322(3), F.S.
Law implemented: 376.323, F.S.
History: New 1-7-92.
17-767.450 Notification.
(1) The owner or operator of a storage tank shall notify
the Department of the following items on Form 17-761.900(2):
(a) The date and method of closure at least 30 days
before closure of any storage tank;
(b) Any change in ownership of any storage tank no later
than 30 days after ownership has been transferred. The
notice of change of ownership shall be provided by the
transferor. The notice shall include a copy of the bill of
sale or a letter of acceptance by the.transferee;
(c) Upgrading of any storage tank at least 10 days
before upgrading occurs, except for emergency replacements of
tanks or connected piping required by an actual or
anticipated discharge. Notification of emergency replacement
shall be provided within 10 days after the emergency
replacement.
(d) Any change in the identity of the material being
stored from one mineral acid to another mineral acid or to
another stored material.
(2) The owner or operator shall notify the Department of
certification of the containment and integrity plan or
certification of the secondary containment system by a
registered professional engineer within 10 days of such
certification having been made on DER Form 17-767.900(3).
17-767.410(2)(a) - 17-767.450(2)
Effective 1-7-92
4
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PER 1992 MINERAL ACID ABOVEGROUNP STORAGE TANKS 17-767
(3) The owner or operator shall notify the Department or
contracted local program within three working days of
discovery of any loss of mineral acids which exceeds 110
gallons or the reportable quantity in effect on July 1, 1991,
under the Comprehensive Environmental Response Compensation
and Liability Act of 1980, whichever is greater, into a
secondary containment system.
Specific Authority: 376.322(3), F.S.
Law implemented: 376.322, F.S.
History: New 1-7-92.
17-767.460 Reporting of Discharges.
The owner or operator shall report any discharge from a
storage tank without secondary containment or from a
secondary containment system which exceeds 100 pounds of
hydrobromic or hydrofluoric acid, 1000 pounds of sulfuric
acid, 5000 pounds of hydrochloric or phosphoric acid,
verbally to the Department or its designee within one working
day of discovery, and on Form 17-767.900(2) within three
working days of its discovery.
Specific Authority: 376.322(3), F.S.
Law Implemented: 376.322, F.S.
History: New 1-7-92.
17-767.500 Containment and Integrity Plan.
(1) The owner or operator of each mineral acid storage
facility shall prepare and have in place a1 Containment and
Integrity Plan (CIP) meeting the requirements of Section
17-767.500(2), F.A.C. or have in place a professional
engineer certification that meets the requirements of Section
17-767.500(3), F.A.C.
(a) For existing facilities, the owner or operator shall
have available for inspection by the Department by the
effective date of this rule a copy of the inspection
and maintenance program. The CIP or the professional
engineer certification of the secondary containment shall be
available for inspection by the Department by June 30, 1992.
(b) For new storage tanks, the owner or operator shall
install secondary containment and meet the requirements of
this section before the storage tank is placed into active
service.
17-767.450(3) - 17-7 67.500.(1)(b)
Effective 1-7-92
PER 1992 MINERAL ACID ABOVEGROUND STORAGE TANKS 17-767
(2) The Containment and Integrity Plan shall incorporate
procedures and requirements to minimize the risk of spills,
releases, and discharges from storage tanks. A professional
engineer registered in the state shall certify that the tanks
covered by the Containment and Integrity Plan for that
facility have been inspected and maintained in accordance
with the CIP and that the integrity and containment of the
tanks has not been compromised. For purposes of this
certification, maintenance will be presumed if the
professional engineer verifies that records demonstrating
compliance with paragraph (a) are available and complete and
indicate proper maintenance. The CIP shall be reviewed and
updated at least every two years. The CIP shall address:
(a) an inspection and maintenance program; detailing the
qualifications of the person providing the inspection, the
inspection and routine maintenance procedures and schedules
being used to evaluate and maintain the integrity of the tank
and secondary containment, release detection procedures,
frequency of inspections and proper response to inspection
findings.
(b) materials of construction for each storage tank and
compatibility of the mineral acid with the construction
materials;
(c) secondary containment of storage tanks, if
applicable;
(d) location of surface water bodies near the storage
tank and the potential for releases to enter the surface
water body or to move off-site;
(e) discharge response procedures for containment and
abatement;
(f) cleanup procedures; and
(g) For storage tanks having no secondary containment,
the CIP shall also address:
1. procedures and equipment for treating spill wastes;
2. procedures for disposing of spill wastes; and
3. containment and diversionary structures to prevent
discharges from entering the nearby surface water bodies or
moving off site.
(3) Containment and Integrity Plan Alternatives. For
purposes of this subsection (3) a tank shall not be
considered in direct contact with the ground if it meets the
requirements of 17-762.500(6), F.A.C.
17-767.500(2) - 17-767.500(3)
Effective 1-7-92
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PER 1992 MINERAL ACID ABOVEGROUNP STORAGE TANKS 17-767
(a) In place of the Containment and Integrity Plan,
owners or operators may choose to provide the Department with
certification by a professional engineer that no mineral acid
aboveground tank at the facility is in direct contact with
the ground, and under and around each tank has been placed
and sealed to its supports, a secondary containment system
which is either:
1. Designed and built to contain in excess of 110
percent of the capacity of the largest tank within the
containment; or
2. Equipped with a drainage system routed to a permitted
wastewater treatment system that is capable of
containing any accidental release from the mineral acid
storage tank.
(b) Owners or operators subject to this subsection shall
submit an inspection and maintenance program to the
Department for review and approval every two years,
specific Authority: 376.322(3), F.S.
Law Implemented: 376.324, 376.325, F.S.
History: New 1-7-92.
17-767.700 Recordkeeping.
The owner or operator shall maintain a copy of the
inspection and maintenance program and the containment and
integrity plan as required in Section 17-767.500, F.A.C., or
the certification of secondary containment as required in
Section 17-767.500(3), F.A.C., and have them available for
Inspection by the Department at reasonable times.
Specific Authority: 376.322(3), F.S.
Law Implemented: 376.322, F.S.
History: New 1-7-92.
17-767.840 Locally Administered Programs.
(1) Pursuant to Section 376.321, F.S., the Department
may contract with local governments for the administration of
certain departmental responsibilities under this rule. A
list of participating locally administered programs may be
obtained from the Department.
(2) Final agency action related to the functions which
may be carried out by a locally administered program shall be
taken by the Department.
17-767.500(3)(a) - 17-767.840(2)
Effective 1-7-92
7
PER 1992 MINERAL ACID ABOVEGROUND STORAGE TANKS 17-767
(3) This section does not apply to local governments
with approved local programs authorized pursuant to Section
376.317, F.S., except to the extent that those local
governments have contracted with the Department for specific
duties. Those local programs may have independent authority
to take final action related to their ordinances. Final
agency action resulting from a contracted function will
continue to be taken by the Department.
Specific Authority: 376.322(3), F.S.
Law Implemented: 376.322, F.S.
History: New 1-7-92.
17-767.850 Discharge Response.
(1) When evidence of a discharge from a storage tank
with no secondary containment or from a secondary containment
system is discovered and reported in accordance with Rule
17-767.460, F.A.C., the owner or operator shall remove as
much of the mineral acid from the storage tank as is
necessary to prevent further discharge. The storage tank
shall be repaired, if possible, in accordance with Rule
17-767.500, F.A.C. If the storage tank cannot be repaired,
all mineral acid shall be removed from the tank and it shall
be properly closed.
(2) Any owner or operator of a facility discharging
mineral acids shall immediately undertake to contain, remove,
neutralize, or otherwise abate the discharge.
Specific Authority: 376.322(3), F.S.
Law Implemented: 376.322, F.S.
History: New 1-7-92.
17-767.900 Forms.
The following forms used by the Department in the
Underground Storage Tank Systems rule in Rule 17-761.900,
F.A.C., are adopted and incorporated by reference in this
Section. The forms are listed by rule number, and the
corresponding Rule 17-761.900, F.A.C., form number and with
the subject title and effective date. Copies of forms may be
obtained by writing to the Administrator, Storage Tank
Regulation Section, Pepartment of Environmental Regulation,
2600 Blair Stone Road, Tallahassee, Florida 32399-2400.
(1) 17-761.900(2) Storage Tank Registration Form,
Pecember 10, 1990.
(2) 17-767.900(2) Pischarge Reporting Form, January 7,
1992.
(3) 17-767.900(3) Containment and Integrity Plan
Certification Form, January 7, 1992.
specific Authority: 376.322(3), F.S.
Law Implemented: 376.322, F.S.
History: New 1-7-92.
17-767.840(3) - 17-767.900(History)
Effective 1-7-92
8
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PER 1993
FLORIDA PETROLEOM LIABILITY AMD
RESTORATION INSURANCE PROGRAM
17-769
CHAPTER 17-769
FLORIDA PETROLEUM LIABILITY AND
RESTORATION INSURANCE PROGRAM
17-769.100 Introduction and Scope.
17-769.200 Definitions.
17-769.300 Applicability.
17-769.400 Florida Petroleum Liability Insurance
Program.
17-769.500 Self Insurance Requirements.
17-769.600 Restoration Insurance Program.
17-769.700 Cancellation of Petroleum Liability and
Restoration Insurance Program Coverage.
17-769.800 Abandoned Tank Restoration Program.
17-769.900 Forms.
17-769.100 Introduction and Scope.
(1) Section 376.3072, Florida Statutes, establishes the
Florida Petroleum Liability and Restoration Insurance
Program to provide restoration funding assistance to
facilities regulated by and in compliance with the
Department's petroleum storage tank rules. This chapter is
enacted to enable the Department to carry out the provisions
of that section.
(2) Section 376.3072(4)(a), F. S., states that the
Department shall adopt rules for the proper management and
maintenance of the Florida Petroleum Liability and
Restoration Insurance Program. This chapter establishes
procedures and documentation required to participate in the
Florida Petroleum Liability and Restoration Insurance
Program.
(3) Section 376.305(7), F.S., states that the
Department shall establish the Abandoned Tank Restoration
Program to provide financial assistance for the cleanup of
sites that have petroleum storage systems that have been
abandoned or are no longer in service.
Specific Authority: 376.303, 376.3072, F.S.
Law Implemented: 376.305, 376.3072, F.S.
History: New 2-27-89; Amended 2-20-91, 2-22-93.
17-769.200 Definitions.
All words and phrases defined in Sections 376.301 and
376.3072, F.S., shall have the same meaning when used in
this chapter unless otherwise set forth in this section or
unless the context clearly indicates otherwise. The
following words and phrases when used in this chapter shall,
unless the context clearly indicates otherwise, have the
following meanings:
17-769.100 - 17-769.200
2-22-93
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DER 1993 FLORIDA PETROLEUH LIABILITY AND 17-769
RESTORATION INSURANCE PROGRAM
(1) "Bodily injury" means physical injury, sickness,
disease or mental anguish or shock sustained by any person,
other than an insured, including death resulting therefrom,
caused by contamination emanating from a site for which an
insurance policy has been issued.
(2) "Claim" means a request for money or services by an
insured party for restoration coverage.
(3) "Contractor" means any insurance company,
reinsurance company or insurance consultant under contract
with the Department to implement the insurance program.
(4) "Deductible Amount" means the amount a participating
owner or operator shall be obligated to pay per incident for
restoration and for covered losses under the restoration
insurance program or abandoned tank restoration program.
(5) "Discovery" means an owner or operator has either
actual knowledge or knowledge of facts which could reasonably
lead to actual knowledge.
(6) "Insurance policy" means the third party liability
insurance policy or excess restoration coverage policy
issued to an eligible owner or operator.
(7) "Liability Insurance program" means the program
within the Petroleum Liability and Restoration Insurance
Program that may provide third party liability insurance
coverage to owners or operators for incidents of inland
contamination related to the storage of petroleum products.
(8) "Insured" means the owner or operator covered by an
insurance policy issued by the insurance program, including
any additional persons listed under the terms of the policy.
(9) "Notice of Eligibility" means the notice issued by
the Department or contractor to an owner or operator who is
eligible to participate in the restoration program.
(10) "Participating owner or operator" means the owner
or operator named on the Notice of Eligibility.
(11) "Property damage" means physical injury to or
destruction of tangible property not owned, leased or
otherwise controlled by any insured, including consequential
loss of use thereof, and consequential loss of use of real
property not owned, leased or otherwise controlled by any
insured.
(12) "Restoration Insurance Program" means the program
within the Petroleum Liability and Restoration Insurance
Program that will provide restoration or reimbursement for
participating owners or operators. Such restoration or
reimbursement shall be accomplished pursuant to the rules of
the Department promulgated under Section 376.3071, F.S,
including Chapter 17-770, 17-771, and 17-773, F.A.C.
(13) "Site" means any contiguous land, surface water and
ground water areas upon which a discharge of petroleum
product was discovered.
17-769.200(1) - 17-769.200(13)
2-22-93
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PER 1993 FLORIDA PETROLEUM LIABILITY AND 17-769
RESTORATION INSURANCE PROGRAM
(14) "Small business" means an independently owned and
operated business concern which employs 50 or fewer
permanent full-time employees, and which has a net worth of
not more than $1 million. As applicable to sole
proprietorships, the $1 million net worth requirement shall
include both personal and business investment, in accordance
with Section 288.703(1), F.S.
Specific Authority: 376.303, 376.3072, F.S.
Law Implemented: 376.305, 376.3072, F.S.
History: New 2-27-89; Amended 2-20-91; 2-22-93.
17-769.300 Applicability - Except as provided in Section
17-769.800, F.A.C., the Florida Petroleum Liability
and Restoration Insurance Program and the provisions of this
rule shall be applicable to owners and operators of
petroleum storage systems which are subject to and have
maintained compliance with the rules of the Department
pertaining to stationary tanks.
Specific Authority: 376.303, 376.3072, F.S.
Law Implemented: 376.3072, F.S.
History: New 2-27-89; Amended 2-20-91; 2-22-93.
17-769.400 Florida Petroleum Liability Insurance
Program.
(1) In order to participate in the restoration insurance
program, an owner or operator shall provide the Department
with documentation of third party liability coverage that
meets the requirements of 40 CFR s.280.97, Subpart H.
(2) Should the Department elect to provide third party
liability coverage, the owner or operator shall:
(a) Submit to the contractor a completed application,
signed compliance affidavit form and any supporting
documentation or additional information necessary for a
determination of eligibility requested by the Department or
contractor;
(b) Pay all tank registration fees assessed pursuant to
Section 376.303, F.S., and any penalty fees assessed as a
result of late payment;
(c) Pay the premium for coverage under the insurance
program by the scheduled date of payment; and
(d) Maintain compliance with the rules relating to
stationary tanks adopted pursuant to Section 376.303, F.S.,
including Chapters 17-61, 17-761, and 17-762, F.A.C.
(3) The liability insurance program shall provide
coverage for losses to an insured, which the insured is
legally obligated to pay, for third party bodily injury or
property damage caused by an incident in an amount up to $1
million per incident, subject to an aggregate as established
in the insurance policy.
17-769.200(14) - 17-760.400(3)
2-22-93
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DER 1993 FLORIDA PETROLEUH LIABILITY AND 17-769
RESTORATION INSURANCE PROGRAM
(4) No claims shall be paid under the liability
insurance program for third party liability arising from an
incident discovered prior to the effective date of the
insurance policy.
(5) Any facility contaminated as a result of a discharge
which was reported prior to January 1, 1989 or the effective
date of an insurance policy, whichever is later, shall be
subject to more stringent underwriting procedures. The
owner or operator of a previously contaminated facility
shall provide documentation to the contractor regarding the
areal extent and concentration of any contamination at the
facility. The contractor shall deny coverage for facilities
with pre-existing contamination which has moved beyond the
property boundaries or remains within the property
boundaries at concentrations which will reasonably be
expected to move beyond the property boundaries. Any
facility that is unable to obtain third party liability
insurance due to pre-existing contamination shall be
eligible for coverage under the liability insurance program
after the discharge has been cleaned up to the levels
established by the cleanup criteria rule promulgated under
Section 376.3071, F.S. For purposes of this subsection, any
cleanup of a discharge which has achieved applicable
standards and has entered the final year of monitoring shall
be determined to be cleaned up to the standards of the rule.
It shall be the responsibility of the owner or operator of a
petroleum storage system to establish the extent of any
contamination resulting from a discharge occurring prior to
January 1, 1989.
(6) The liability insurance program shall comply with
all applicable provisions of the Florida Insurance Code and
the rules adopted by the Department of Insurance.
(7) The policy issued by the contractor for the
insurance program shall be approved by the Department of
Insurance and shall be a binding contract in accordance with
applicable Florida law for the purposes of this chapter.
(8) All premiums established for the liability insurance
program shall be filed with and approved by the Department
of Insurance pursuant to Section 627.062, F.S.
(9) The contractor shall consider the following
risk-based factors to determine the insurance program
premium for an individual petroleum storage system:
(a) The type of facility or facilities at which the
system is used;
(b) The construction and installation characteristics of
the system;
(c) The method of inventory control and reconciliation
used for the system;
17-769.400(4) - 17-760.400(9)(c)
2-22-93
-4-
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PER 1993 FLORIDA PETROLEUM LIABILITY MTD
RESTORATION INSURANCE PROGRAM
17-769
(d) The method of leak detection used for the system;
(e) Any other structural or tank management
characteristics of the system relevant to the risk;
(f) The previous product loss history of the owner or
operator of the system;
(g) The compliance history of the owner or operator of
the system;
(h) Any overall risk management plan or practices of the
owner or operator of the system;
(i) The location of the system and the sensitivity of
the surrounding environment; and
(j) Proximity to drinking water wells or other
receptors.
(10) All claims for bodily injury or property damage
covered by the liability insurance program shall be
submitted to the contractor in accordance with the insurance
policy specifications.
Specific Authority: 376.30?, 376.3072, F.S.
Low Implemented: 376.3072, F.S.
History: New 2-27-89; Amended 2-20-91; 2-22-93.
17-769.500 Self Insurance Requirements.
(1) An owner or operator who elects not to purchase
third party liability insurance from the Department or the
contractor may not participate in the restoration program
unless:
(a) Owner or operator submits evidence to the Department
that the owner or operator can demonstrate equivalent
financial responsibility in accordance with Code of Federal
Regulations, Title 40, Part 280, Subpart H, for compensating
third parties for bodily injury and property damage caused
by an incident in the following amounts:
1. Owners and operators of petroleum storage systems
which are located at petroleum marketing facilities, or that
handle an average of more than 10,000 gallons of petroleum
product per month based on annual throughput for the
previous calendar year, shall demonstrate financial
responsibility for third party liability to a minimum of $1
million per incident;
2. Owners and operators of all other petroleum storage
systems shall demonstrate financial responsibility for third
party liability to a minimum of $500,000 per incident;
3. Owners and operators of 1 to 100 petroleum storage
systems shall demonstrate financial responsibility for third
party liability to a Si million annual aggregate;
4. Owners and operators of 101 or more petroleum storage
systems shall demonstrate financial responsibility for third
party liability to a $2 million annual aggregate; or
17-769.400(9)(d) - 17-769.500(1)(a)4.
2-22-93
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DER 1993 FLORIDA PETROLEUM LIABILITY AND 17-769
RESTORATION INSURANCE PROGRAM
(b) Owner or operator fulfills the requirements of
Section 17-769.4 00(1), F.A.C.; or
(c) The owner or operator was not required to provide
financial responsibility for third party liability in
accordance with subsections 376.3072(2)(a)2. and 3., F.S.
(2) Any insurance coverage used to meet the
demonstration of financial responsibility requirements of
this section shall be provided by a carrier with experience
in underwriting and adjusting pollution liability claims and
loss control under environmental impairment insurance
policies. Any insurance company or risk retention group, if
required, shall be registered or licensed by the Department
of Insurance.
Specific Authority: 376.303, 376.3072, F.S.
Law Implemented: 376.3072, F.S.
History: New 2-27-89; Amended 2-20-91; 2-22-93.
17-769.600 Restoration Insurance Program.
(1) A site for which a discharge was reported prior to
January 1, 1989, and notice was given pursuant to s.
376.3071(9) or (12), F.S., and which is ineligible for third
party liability insurance solely due to that discharge,
shall be eligible for participation in the restoration
insurance program for any incident occurring on or after
January 1, 1989, provided that:
(a) coverage for the discharge is not excluded under
s.376.3072(2)(b)5., F.S.; and
(b) the owner or operator submits a completed compliance
affidavit and all pertinent application forms for the
program.
(2) A site for which a discharge was reported between
January 1, 1989, and September 1, 1989, or where a discharge
is reported at a facility owned by a county with a 1992
population of between 30,000 and 35,000, may participate in
the restoration insurance program for that discharge with or
without third party liability insurance provided that:
(a) coverage for the discharge is not excluded under
s. 376.3072(2)(b)5., F.S.; and
(b) the owner or operator submits a completed compliance
affidavit and all pertinent application forms for the
program.
(3) Restoration funding for eligible sites described in
Section 17-769.600(1) and (2), F.A.C., will be provided
without third party liability insurance until the site is
restored as required by the Department or until the
Department determines that the site does not require
restoration, pursuant to Chapter 17-770, F.A.C
17-769.500(1)(b) - 17-769.600(3)
2-22-93
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PER 1993 FLORIDA PETROLEUM LIABILITY AND 17-7t9
RESTORATION INSURANCE PROGRAM
(4) The restoration insurance program shall provide
restoration coverage to eligible owners or operators for
discharges discovered after the date of coverage. In order
to participate in the restoration insurance program, the
owner or operator shall have third party liability Insurance
or qualify under the self insurance provisions of Section
17-769.500, F.A.C.
(5) The Department shall issue a Notice of Eligibility
for the restoration insurance program upon submittal of the
following:
(a) Evidence of third party liability insurance or
demonstration of financial responsibility under Section
17-769.500, F.A.C.,
(b) A signed compliance affidavit form,
(c) Any other information or documentation necessary to
determine eligibility requested by the Department or
contractor,
(d) Any outstanding tank registration fees and
penalties, and
(e) A copy of the most recent compliance inspection
form showing compliance with the Department rules or
evidence that any necessary corrective actions identified at
the most recent inspection have been taken as ordered by the
Department. If a reinspection is required, a fee of $250
shall be assessed before issuance of a satisfactory
compliance report.
(6) The Notice of Eligibility shall state the name of
the participating owner or operator, the list of eligible
facilities, the effective date of the Notice of Eligibility
and the expiration date of eligibility for restoration
insurance coverage, which shall be no more than one year
after the effective date of the Notice of Eligibility.
(7) The restoration insurance program shall apply only
to discharges discovered by an owner or operator after the
date of coverage under the liability insurance policy or
alternatively, after the Department's or contractor's
receipt of documentation required under Section 17-769.500,
F.A.C.
(8) The Notice of Eligibility shall be renewed each year
before the expiration date stated in the notice. In order
to renew, the participating owner or operator shall meet all
requirements for participation in the restoration insurance
program as set forth in this section.
(9) Any contractor under the liability insurance program
may conduct restoration of an incident for purposes of risk
management and loss control, stabilization of rates and
premiums, and in order to provide for expeditious clean up
to protect human health, safety and welfare subject to prior
17-769.600(4) - 17-769.600(9)
2-22-93
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DER 1993 FLORIDA PETROLEPM LIABILITY AND 17-769
RESTORATION INSURANCE PROGRAM
approval from the Department. Costs expended by the
contractor for any cleanup under this subsection shall not
be paid with funds generated from premiums collected under
the liability insurance program. Costs of restoration shall
be reimbursed to the contractor pursuant to Chapter 17-773,
F.A.C.
(10) Exclusions - The following are excluded from
participating in the restoration insurance program:
(a) Sites owned or operated by the Federal Government;
(b) Any petroleum storage system at a site upon which a
discharge was discovered prior to January 1, 1989, except as
provided in (1) and (2) above;
(c) Any petroleum storage system at a facility to which
the Department, or a person under contract with the
Department, has been denied site access.
(11) An exclusion from the restoration insurance program
under this section shall not affect the eligibility of any
facility for funding under Section 376.3071, F.S.
(12) The participating owner or operator shall be
responsible for any replacement, retrofitting or removal of
eligible storage systems, or other costs of compliance with
the rules of the Department for stationary tanks established
pursuant to Section 376.303, F.S., including chapters 17-61,
17-761, and 17-762, F.A.C.
(13) The participating owner or operator shall
demonstrate compliance with the rules of the Department for
stationary tanks established pursuant to Section 376.303,
F.S. including Chapters 17-61, 17-761, and 17-762, F.A.C. In
order for any individual incident to be covered under the
restoration insurance program, the participating owner or
operator shall file a Discharge Reporting Form with the
Department or contracted county within 24 hours of
discharge. Restoration insurance coverage will be
determined on an incident by incident basis upon submittal
of a claim form. Form 17-769.900(6), F.A.C., after which the
applicant will be notified. The Department shall provide
restoration coverage for the incident unless:
(a) The insured has failed to abate the known source of
a discharge by taking the following steps:
1. The participating owner or operator shall, within 3
days of discovery of a discharge, test or empty the
petroleum storage system or leaking component thereof. If
the petroleum storage system or component is known to be
leaking, the owner or operator shall within 3 days remove
the system from service until it has been tested and either
repaired or replaced.
17-769.600(9)(cont'd.) - 17-769.600(13)(a)1.
2-22-93
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PER 199 3
FLORIDA PETROLEUM LIABILITY AHP
17-769
RESTORATION INSURANCE PROGRAM
2. The participating owner or operator shall, within 3
days of discovery of a discharge, take steps to obtain
cleanup services, and within 3 days of discovery of a
discharge, initiate recovery of free product at the site.
Recovery of all free product shall be conducted in
accordance with the cleanup criteria rule established
pursuant to Section 376.3071, F.S., Chapter 17-770, F.A.C.
(b) The insured has failed to take corrective action as
required by the Department; or
(c) The insured has intentionally caused or concealed a
discharge or disabled leak detection equipment.
(14) For any discharge reported after July 1, 1991, and
on or before December 31, 1993, eligible responsible persons
who provide certification using Form 17-769.900(5), F.A.C.,
that they qualify as a small business under Section
288.703(1), F.S., or as a corporation not for profit under
Chapter 617, F.S., may choose to be incorporated into the
state-contracted cleanup prioritization in accordance with
the Petroleum Contamination Site Priority Ranking Rule,
Chapter 17-771, F.A.C.
(15) Reimbursement for restoration by an owner or
operator shall be paid in accordance with the reimbursement
rule established pursuant to Section 376.3071, F.S., and in
accordance with the following table:
RESTORATION COVERAGE I PER INCIDENTS
DISCHARGES
REPORTED DATE
July 1, 1992 -
June 30, 1993*
July 1, 1993 -
December 31, 1993*
January 1, 1994
December 31, 1996
January 1, 1997
December 31, 1998
January 1, 1999
MAXIMUM
STATE
CONTRIBUTION
DEDUCTIBLE
$1 Million $1,000
$1 Million $5,000
$300,000 $10,000
$150,000 $10,000
$0 Not
Applicable
EXCESS
COVERAGE
REQUIRED
OF OWNER/
OPERATOR
Not
Applicable
Not
Applicable
$700,000
$850,000
$1 Million
17-769.600(13)(a)2. - 17-769.600(15)
2-22-93
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DER 1993
FLORIDA PETROLEUM LIABILITY AND
RESTORATION INSURANCE PROGRAM
17-769
RESTORATION COVERAGE (PER INCIDENT)
DISCHARGES MAXIMUM DEDUCTIBLE EXCESS
REPORTED DATE STATE COVERAGE
CONTRIBUTION REQUIRED
OF OWNER/
OPERATOR
*Excess Coverage $300,000 $500 $700,000
Obtained by September 1, 1993
*If excess coverage in the amount of $700,000 is obtained
prior to the date a discharge is reported and by September
1, 1993, the deductible shall be reduced to $500 for a
period of one year from the effective date of the policy or
other form of financial responsibility.
Specific Authority: 376.303, 376.3072, F.S.
Law Implemented: 376.3072, F.S.
History: New 2-27-89; Amended 2-20-91; 2-22-93.
17-769.700 Cancellation of Petroleum Liability
and Restoration Insurance Program Coverage.
(1) Cancellation of Liability Insurance Policy.
(a) The contractor may cancel an insured's liability
insurance policy for any of the following reasons:
1. The Department or contractor determines that the
insured has failed to demonstrate compliance with this rule
and the rules related to stationary tanks adopted pursuant
to Section 376.303, F.S., including Chapters 17-61, 17-761,
and 17-762, F.A.C.
2. The contractor determines the insured has
misrepresented the facts under which the liability insurance
policy was issued;
3. The insured has failed to pay the premium in
accordance with the requirements established by the
contractor;
4. The insured has failed to remove a petroleum storage
system from service in accordance with Section
17-769.600(13)(a)l., F.A.C.; or
5. The insured has failed to recover free product at the
site in accordance with Section 17-769.600(13)(a)2., F.A.C.
(b) Cancellation of coverage by the contractor shall be
in compliance with time limits in Section 627.4133, F.S.
(2) Cancellation of eligibility for restoration
insurance coverage.
(a) The Department shall cancel eligibility for
restoration insurance coverage of any participating owner or
operator or any eligible petroleum storage system for any of
the following reasons:
17-769.600(15)(cont'd.) - 17-769.700(2)(a)
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2-22-93
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PER 1993
FLORIDA PETROLEUM LIABILITY AMD
RESTORATION INSURANCE PROGRAM
17-769
1. The Department determines the participating owner or
operator has misrepresented the facts under which the
liability insurance policy or Notification of Eligibility
for restoration coverage was issued;
2. The owner's or operator's third party liability
insurance policy has been canceled;
3. The participating owner's or operator's mechanism for
satisfying the financial responsibility requirements of this
chapter is canceled, expired or otherwise invalid;
4. The participating owner or operator has failed to
remove a petroleum storage system from service in accordance
with Section 17-769.600(13)(a)1.; or
5. The participating owner or operator has failed to
recover free product at the site in accordance with Section
17-769.600(13)(a)2.
(b) The Department shall notify the participating owner
or operator of its intent to cancel the participating
owner's or operator's eligibility for restoration insurance
at least 45 days prior to the date the cancellation shall be
final, and shall state the reason(s) for the cancellation.
The Department's cancellation of restoration insurance
eligibility shall be subject to the provisions of Chapter
120, F.S. If, after 45 days, the participating owner or
operator fails to resolve the reason(s) for cancellation to
the satisfaction of the Department or the contractor, the
order of cancellation shall become final. To re-establish
eligibility, the owner or operator must reapply in
accordance with s. 17-769.600(5),F.A.C.
Specific Authority: 376.303, 376.3072, F.S.
Law Implemented: 376.3072, F.S.
History: New 2-27-89; Amended 2-20-91; 2-22-93.
17-769.800 Abandoned Tank Restoration Program.
(1) Purpose. The purpose of the Abandoned Tank
Restoration Program is to provide financial assistance to
clean up sites with petroleum storage systems that have been
abandoned or are no longer in service, and which are not
otherwise eligible for cleanup pursuant to Section
376.3071(9) and (12), F.S., the Early Detection Incentive
Program, or the Florida Petroleum Liability and Restoration
Insurance Program pursuant to Section 376.3072, F.S.
(2) Definitions
The following words and phrases as used in this section
shall have the following meanings:
(a) "Abandoned Petroleum Storage System" means any
petroleum storage system that no longer 6tores petroleum
products for consumption, use or sale and that is not
intended to be returned to service.
17-769.700(2)(a)1. - 17-760.800(2)(a)
2-22-93
-11-
DER 19 9 3
FLORIDA PETROLEUM LIABILITY AND
RESTORATION INSURANCE PROGRAM
17-769
(b) "Closed or closure" means the removal of the
petroleum storage system or filling the petroleum storage
system with inert material in accordance with rules relating
to stationary tanks adopted pursuant to s. 376.303, F.S., in
effect at the time the system was filled or removed.
(3) Eligibility for the Abandoned Tank Restoration
Program.
(a) To be eligible for the Abandoned Tank Restoration
Program, the current owner or operator of a property which
contains or contained an abandoned storage system must:
1. Demonstrate that the owner or operator of the
petroleum storage system when it was in service decided not
to continue in business for consumption, use, or sale of
petroleum products at that facility.
2. Have documented contamination from the abandoned
petroleum storage system;
3. Have not stored petroleum products for consumption,
use or sale at that facility after March 1, 1990;
4. Have properly closed the abandoned petroleum storage
system; and
5. Submit an application to the Department on Forms
17-769.900(3) and (4), F.A.C., which shall be postmarked on
or before June 30, 1992.
(b) The following Ghall not be eligible for
participation in the Abandoned Tank Restoration Program:
1. Sites eligible for cleanup pursuant to Section
376.3071(9) and (12), F.S., the Early Detection Incentive
Program, or the Florida Petroleum Liability and Restoration
Insurance Program pursuant to Section 376.3072, F.S.;
2. Sites owned or operated by the Federal Government;
3. Sites with leaking tanks that store pollutants that
are not petroleum products as defined in Section 376.301,
F.S.;
4. Sites where the Department has been denied access;
or
5. Petroleum contamination discovered after the
application deadline of June 30, 1992.
(4) Restoration Coverage.
(a) Sites accepted into the program shall be eligible
for reimbursement of cleanup costs as provided in Section
376.3071(12), F.S. Reimbursement shall be made in
accordance with the Reimbursement Rule, Chapter 17-773,
F.A.C.
(b) Eligible responsible persons who provide
certification using Form 17-769.900(5), F.A.C., that they
qualify as a small business under Section 288.703(1), F.S.,
or as a corporation not for profit under Chapter 617, F.S.,
may choose to be incorporated into the state-contracted
17-769.800(2)(b) - 17-769.800(4)(b)
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2-22-93
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PER 1993
FLORIDA PETROLEUM LIABILITY AND
RESTORATION INSURANCE PROGRAM
17—769
cleanup prioritization in accordance with the Petroleum
Contamination Site Priority Ranking Rule, Chapter 17-771,
F.A.C.
(c) Eligible responsible persons are subject to the
restoration coverage deductible of $500.
(d) Restoration coverage is limited to one million
dollars.
(e) Participation in the Abandoned Tank Restoration
Program does not provide the owner or operator with third
party liability coverage as described in this Chapter.
Specific Authority: 376.303, 376.3072, F.S.
Law Implemented: 376.305
History: New 2-20-91; Amended 2-22-93.
17-769.900 Forms. The forms used by the Department in
the Florida Petroleum Liability and Restoration Insurance
Program are adopted and incorporated by reference in this
section. The forms are listed by rule number, which is also
the form number, and subject title. Copies of forms may be
obtained by writing to the Petroleum Insurance
Administrator, Division of Administrative & Technical
Services, Department of Environmental Regulation, 2600 Blair
Stone Road, Tallahassee, Florida 32399-2400
(1) Compliance Affidavit (February 1, 1989).
(2) Notice of Eligibility (February 1, 1989).
(3) Abandoned Tank Restoration Program Application
Form, Effective, February 20, 1991
(4) Abandoned Tank Restoration Affidavit, Effective,
February 20, 1991.
(5) Small Business/Not for Profit Certification,
Effective, February 20, 1991.
(6) Incident Claim Form, Effective 2-22-93.
Specific Authority: 376.303, 376.3072, F.S.
Law Implemented: 376.305, 376.3072, F.S.
History: New 2-27-89; Amended 2-20-91; Formerly 17-769.999;
Amended 2-22-93.
17-789.999 Forms
Specific Authority: 376.303, 376.3072, F.S.
Law Implemented: 376.305, 376.3072, F.S.
History: New 2-27-89; Amended 2-20-91; Transferred to
17-769.900.
17-769.800(4)(b)(cont'd.) - 17-769.999(History)
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2-22-93
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PER 1990
PETROLEUH CONTAMINATION SITE CLEANUP CRITERIA
17-770
CHAPTER 17-770
PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA
17-770.100 Introduction and Scope.
17-770.130 Referenced Standards and Guidelines.
17-770.160 Applicability.
17-770.200 Definitions.
17-770.250 Contamination Reporting.
17-770.300 Initial Remedial Actions.
17-770.400 Quality Assurance Project Plan.
17-770.500 Professional Certifications.
17-770.600 Contamination Assessment.
17-770.630 Contamination Assessment Report.
17-770.640 Risk Assessment.
17-770.660 Monitoring.
17-770.700 Remedial Action Plan.
17-770.730 Remedial Action.
17-770.760 Site Rehabilitation Completion.
17-770.800 Time Schedules.
17-770.830 Notices.
17-770.860 Permit Requirements.
17-770.880 Local Programs for Control of Contamination.
17-770.890 Approval of Alternative Procedures and Requirements.
17-770.900 Forms.
02-21-90
1
PER 1990 PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA
17-770
17-770.100 Introduction and Scope.
(1) Section 376.3071(5)(b), F.S., requires that the Secretary adopt criteria by rule
lor the purpose of determining, on a case by case basis, the point at which a
petro'eum or petroleum product contamination site rehabilitation program is complete.
(2) Section 376.303(1), F.S., provides that the Department may promulgate rules
to implement the intent ol Sections 376.30 - 376.319. F.S.. and may provide for the
development and implementation of criteria and plans to prevent and meet
occurrences of pollution of various kinds and degrees.
(3) Section 403.061, F.S., provides that the Department may promulgate rules
for the control and abatement of pollution in waters of the state. Contamination of
waters by petroleum or petroleum products constitutes pollution lor purposes of
Chapter 403, F.S.
(4) In order to ensure that each site rehabilitation is completed to an acceptable
endpoint based on these criteria, this rule establishes a cleanup process which must be
undertaken at all petroleum contamination sites.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061. 403.062, F.S.
History: New 11-1-87; Formerly 17—70.002: Amended 2-21-90.
17-770.130 Referenced Standards and Guidelines.
(1) Referenced standards and guidelines are available for inspection at the
Department of Environmental Regulation's district and Tallahassee offices.
(2) Specific references to documents listed below are made throughout this
chapter. Each of these documents, or parts thereof, are adopted and incorporated as
standards only to the extent that they are specifically referenced in this chapter.
(a) OCR Guidelines for Preparing Quality Assurances Plans, (DER-0A-001/85)
Florida Department of Environmental Regulation, Ouality Assurance Section.
(b) 40 CFR Part 136.
(c) Test Methods for the Evaluation of Solid Waste Physical/Chemical, EPA SW
846, Third Edition, Document No. 955-001-00000-1.
(d) Engineering Support Branch Standard Operating Procedures and Ouality
Assurance Manual, Altanta: USEPA Region IV, 1986.
(e) EPA 600/4-81-056 Total Organic Halides: Method 450.1. (EMSL).
(3) Specific references to the guidelines listed below are made throughout this
chapter. These guidelines are not standards as defined in Section 403.803, F.S. Use of
these guidelines is not mandatory but will allow for expedited Department review of
any plan or report prepared in accordance with the guideline.
(a) Guidelines for Preparation of Contamination Assessment Reports for
Petroleum Contamination Sites, October 1989.
(b)(reserved)
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021. 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.005; Amended 2-21-90.
17-770.100— 17-770. >3
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PER 1990 PETROLEUM CONTAMINATION SITE CLEANUP CRUERIA
17-770
17-770.160 Applicability.
(1) The cleanup criteria contained in this rule shall apply to any cleanup of a site
contaminated with petroleum or petroleum products whether conducted by an owner,
operator, response action contractor, local government or the Department. The
cleanup criteria contained in this rule shall not apply to petroleum or petroleum
products contaminated with signilicant quantities ol other substances, or any refined
derivatives or by-products or either crude oil. natural gas. or other naturally
occurring hydrocarbons, except those defined as petroleum product in Section
376.301(10). F.S.
(2) Where a Consent Order has been entered into prior to the effective date of
this rule for assessment and rehabilitation of a site, compliance with terms of the
Consent Order shall constitute compliance with the provisions of this rule. Nothing in
this chapter shall preclude entry of a Consent Order for the rehabilitation of a
contamination site as long as the Consent Order adopts the cleanup criteria of this
Chapter as the Orders for Corrective Action.
Specific Authority: 376.303, 376.3071. 403.061, F.S.
law Implemented: 376.3071, 403.021. 403.0G1. 403.062, F.S.
History: New 11-1-87; Formerly 17-70.004; Amended 2-21-90.
17-770.200 Definitions.
All words and phrases defined in Section 3/6.301, F.S.. shall have the same
meaning when used in this chapter unless the context clearly indicates otherwise. The
following words and phrases used in this chapter shall, unless the context clearly
indicates otherwise, have the following meanings:
(1) "Contamination" or "contaminated" means a discharge of petroleum or
petroleum products into surface waters, groundwaters or upon the land, in quantities
which may result in a violation of Chapter 17-3, F.A.C., water quality standards.
(2) "Excess soil contamination" or "excessively contaminated soil" means soil
saturated with petroleum or petroleum products or soil which causes a total
hydrocarbon reading of 500 ppm for Gasoline Analytical Group (or 50 ppm for
Kerosene Analytical Group or Mixed Product Analytical Group). This reading shall be
obtained on an organic vapor analysis instrument with a flame ionization detector in
the survey mode upon sampling the headspace in a half-filled. 16-ounce soil jar. The
soil sample shall be brought to a temperature of between 20°C. and 32°C. and sampled
five minutes thereafter. Instruments with a photoionization detector may be used
after a determination is made of that instrument's equivalent response to a flame
ionization detector. Analytical instruments shall be calibrated in accordance with the
manufacturer's instructions. Other analytical methods may be used subject to
Department approval upon a demonstration that they provide accurate and verifiable
results, and that the results may be calibrated to those achieved with an organic vapor
analysis instrument.
17-770.160 — 17-770.200(2)
02-21-90
3
PER 1990 PETROLEUM CONTAMINATION SITE CLEANUP CRI TERM 17-770
(3) "Free product" means petroleum or petroleum product in excess of 0.1 inch in
thickness, measured at its thickest point, floating on surface water or groundwater.
(4) "Gasoline Analytical Group" means aviation gasoline, gasohol. and motor
gasoline or equivalent petroleum products.
(5) "Groundwater" means water beneath the surface of the ground within a zone
of saturation whether or not flowing through known or definite channels.
(6) "Kerosene Analytical Group" means diesel. Jet-A, JP-5, and kerosene or
equivalent petroleum products.
(7) "Mixed Product Analytical Group" means Jet-B, JP-4, an equivalent
petroleum product, or a mixture of two or more petroleum products, with at least one
petroleum product from each of the Gasoline Analytical Group and Kerosene
Analytical Group.
(8) "Product recovery" means the removal of free product.
(9) "Site" or "petroleum contamination site" means any contiguous land, surface
water, and groundwater areas upon or into which a discharge of petroleum or
petroleum products has occurred or for which evidence exists that such a discharge
has occurred.
(10) "Surface waters" shall include, but not be limited to. rivers, lakes, streams,
springs, impoundments and all other waters upon the surface ol the earth, whether
contained in bounds created naturally or artificially, or diffused. On site storniwater,
wastewater, or process water retention or treatment facilities which arc not
connected to other surface waters shall not be included in the definition of surface
waters.
(11) "Total volatile organic aromatics" means the sum of concentrations of
benzene, toluene, total xylenes, and ethylbeniene as determined by EPA Method 60?.
(12) "Used Oil" means any lubricants for use in internal combustion engines
which have been refined from crude oil and. as a result of use. storage or handling,
have become unsuitable for their original purpose due to the presence of impurities or
loss of properties, but which may be suitable for further use as a fuci or is
economically recyclable for use as a fuel. "Used oil" shall not include any used oil
which has been mixed with any material which is a hazardous waste, unless the
material is a hazardous waste solely due to the characteristic of ignitability as
defined in 40 CFR Section 261. Subpart C. Used oil containing more than 1000 parts
per million of total halogens is presumed to be mixed with a hazardous waste as listed
in 40 CFR Section 261, Subpart D. unless a demonstration is made that the used oil
does not contain a hazardous waste.
(13) "Waters" or "waters of the state" means those waters as defined in section
403.031, F.S.
Specific Authority: 376.303. 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 11-1-87: Formerly 17-70.003; Amended 2-21-90.
17-770.250 Contamination Reporting.
(1) Upon discovery of contamination at a site, the owner or operator of the site
must report the incident to the Department. Discovery means:
17-770.200(3) — 17-770.250(1)
02-21-90
4
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PER 1990 PETROLEUM CONTAMINATION SHE CLEANUP CRITERIA 17-770
(a) free product in monitoring wells, sewer lines and utility lines, nearby
surface water or other similar locations;
(b) observance of contaminated soil or odor of petroleum products resulting
from a discharge identified in Rule 17-770.25011)(e), F.A.C.;
(c) unusual operating conditions (such as erratic behavior ol product dispensing
equipment, sudden loss ol product, from the petroleum storage system,
unexplained presence of water in the tank), unless system equipment is
found to be defective but not leaking, and is immediately repaired or
replaced;
(d) results of tank testing which reveal a discharge;
(e) discharges exceeding 25 gallons on a pervious surface; or
(f) positive response of a detection device, analytical test of monitoring well
sample, or laboratory report.
(2) Contamination reports shall be submitted to the Department according to
the following:
(a) If the discharge was from a petroleum, storage system, the report shall be
made subject to Department rules adopted pursuant to Section 376 303,
F.S.; or
(b) All other discharges ol petroleum or petroleum products shall be reported
within one week ol discovery using the Petroleum or Petroleum Product
Contamination Report Form adopted in Rule 17-770.900(1), F.A.C.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 2-21-90.
17-770.300 Initial Remedial Actions.
(1) At sites where Iree product is present, the person responsible for
conducting site rehabilitation is required to complete free product recovery
provided that:
(a) the permit requirements described in Rule 17-770.860. F.A.C., are met;
(b) all sources of free product discharge have been located and the discharge
stopped;
(c) free product recovery does not spread contamination into previously
uncontaminated areas through untreated discharges or improper treatment
and disposal techniques; and
17-770.250(1Xa) — 17-770.300(1Xc)
02-21-90
5
PER 1990
PETROLEUM CONTAMI NATION SITE CLEANUP CR1IERIA
17-770
(d) flammable products are handled in a safe and competent manner.
(2) Free product recovery which requires dewatering or groundwater extraction
which causes groundwater tabic depression is prohibited unless approved by the
Department as an alternative procedure pursua
(3) Free product recovery shall be deemed complete when free product has been
removed to the maximum extent practicable.
(4) At contamination sites which are subject to state cleanup pursuant to Section
376.3071(9), F.S., free product recovery shall commence in accordance with the
ranking established pursuant to Chapter 17-771, F.A.C.
(5) Upon initiation of product recovery, the person responsible for conducting
site rehabilitation shall provide written notification to the Department within three
(3) working days. The written notification shall contain the following information:
(a) The type of product discharged, the estimated quantity lost, and the
thickness in wells, boreholes, excavations, or utility conduits;
(b) Method of product recovery;
(c) Whether any discharge will take place during product recovery;
(d) The type ol treatment and expected effluent quality from any discharge; and
(e) The quantity and disposition of recovered product.
(6) If, during operation ol the recovery system, the system fails or
concentrations of contaminants in the effluent rise above those estimated in the
notification required by Rule 17-770.300(5Xd), F.A.C., the person responsible for
conducting site rehabilitation shall take corrective actions to return concentrations to
acceptable levels.
(7) If excessively contaminated soil exists at a site, the initial remedial action at
the option of the person responsible lor conducting site rehabilitation may include
excavation of those soils for treatment or disposal such that these soils are not a
continuing source of contamination, provided that contamination is not spread into
previously uncontaminated areas through untreated discharges or improper treatment
or disposal techniques and that llammable products are handled in a safe and
competent manner. Excavation and treatment or disposal of more than 1500 cubic
yards ol excessively contaminated soil requires Department approval. Excessively
contaminated soils shall not be used as replacement material.
(8) Upon initiation ol soil excavation, the person responsible for conducting site
rehabilitation shall provide a written notification to the Department within three (3)
working days. The written notification shall contain the following information:
(a) The estimated volume ol soil to be excavated and the type ol product in it;
(b) The method used to determine excess soil contamination; and
(c) The disposition or method ol treatment ol excavated material.
(9) Initial Remedial Actions at sites contaminated by used oil are limited to free
product recovery and to removal ol soils which are observed to be saturated.
Specilic Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.006; Amended 2-21-90.
17-770.300(1Xd) — 17-770.300(History)
02-21-90
6
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DER 1990 PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA 17-770
17-770.400 Quality Assurance Project Plan.
(1) A Department approved Quality Assurance Project Plan is required (or all
persons conducting sampling or analysis. For those persons who have an approved
generic Quality Assurance Project Plan, a site-specific Quality Assurance Project
Plan or other appropriate quality assurance document required by the Department will
satisfy'this requirement. The Quality Assurance Project Plan shall be prepared in
accordance with the requirements described in the document referenced in Rule
17-770.130(2Xa), F.A.C.
(2) A Ouality Assurance Project Plan must be submitted to the Department prior
to any sampling or analysis. All sampling and analysis shall be consistent with the
Referenced Standards in Rule 17-770.130, F.A.C. The Department reserves the right
to reject all results obtained prior to Quality Assurance Project Plan approval if there
is reasonable doubt as to the quality of data or methods used.
(3) A Quality Assurance Project Plan is not required for initial remedial action
described in Rule 17-770.300, F.A.C.
Specific Authority: 376.303, 376.3071, 403.061, 403.0877, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.007; Amended 2-21-90.
17-770.500 Professional Certifications.
Where required and authorized by Chapters 471 or 492, F.S., applicable portions
of required documents shall be signed and sealed by a registered Professional Engineer
or a registered Professional Geologist.
Specific Authority. 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 2-21-90.
17-770.600 Contamination Assessment.
(1) Within thirty (30) days of discovery of contamination, a contamination
assessment shall be initiated.
(2) The objectives of the contamination assessment may be to:
(a) Determine whether the soil, sediment, surface water or groundwater is
contaminated at the site;
(b) Define the horizontal and vertical extent of contamination:
(c) Determine whether initial remedial actions are necessary to abate any
imminent hazard;
(d) Determine or confirm the contaminant source(s). That confirmation shall
include a determination of the structural integrity of all petroleum storage systems
which exist at the site when:
1. A discharge detection or monitoring well indicates that petroleum or
petroleum products have been or are being discharged;
2. Groundwater contamination or free product exists in the vicinity and the
facility is reasonably likely to be a source of the contamination; or
17-770.400 — 17-770.600(2Xd)2.
02-21-90
7
DER 1990 PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA 17-770
3. Inventory or reconciliation records indicate a loss of product after performing
the investigative procedure described in Chapter 17-61, F.A.C.
(e) Establish t+ie horizontal extent and thickness of free product;
(f) Describe relevant geologic and hydrogeologic characteristics of affected and
potentially affected hydrogeologic zones;
(g) Describe geologic and hydrogeologic characteristics of the site which
influence migration and transport of contaminants including the rate and direction of
groundwater flow and:
(h) Determine other mechanisms of contaminant transport including rate and
direction of contaminant movement in soils and surface waters.
(3) The contamination assessment shall include tasks which are necessary to
achieve objectives described in Rules 17-770.600(2)(a)-(h), F.A.C., and may include,
but are not limited to, the following:
(a) Use of geophysical equipment such as magnetometers, ground penetrating
radar, or metal detectors to detect petroleum storage system components;
(b) Definition of aquifers present beneath the site and their groundwater
classification. To demonstrate that the natural background quality ol the
groundwater on site would allow it to be classified as an area of G-IfI groundwater,
any of the EPA approved methods referenced in Table IB of 40 CFR Part 136 may be
used for analysis for total dissolved solids or filterable residue;
(c) Use of geophysical methods to determine geologic and hydrogeologic
characteristics of affected and potentially affected hydrogeologic zones;
(d) Use of borings to determine pertinent site-specific geologic and
hydrogeologic characteristics of the site such as aquifers, confining beds, and
unsaturated zones:
(e) Use of piezometers or wells to determine horizontal and vertical directions
of groundwater flow;
(f) Use of fracture trace analysis to discover linear zones in which discrete flow
could take place;
(g) Identification of the extent of sediments contaminated by petroleum
products and excess soil contamination;
(h) Sampling of surface water and sediments;
(i) Sampling of public and private wells;
(j) Use of well points or monitor wells to measure horizontal extent and
thickness of free product, sample groundwater in affected areas and trace the
horizontal and vertical extent of the contaminant plume; and
(k) Survey of applicable literature sources.
02-21-90
17-770.600(2Xd)3. — 17-770.600(3Xk)
8
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PER 1990
PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA
17-770
(4) Upon initiation of the contamination assessment. i( the person responsible (or
conducting site rehabilitation believes that the contamination assessment endpoints
described in Rules 17-770.600(5) or (6), F.A.C., are applicable to the site and the site
is contaminated by products solely from the Gasoline Analytical Group, analytical
screening of the monitoring wells for total volatile organic aromatics (using EPA
Method 602) may be conducted.
(5) The contamination assessment may be concluded and the Contamination
Assessment Report, with a "no further action" proposal, submitted to the Department
for approval pursuant to Rule 17-770.630(3), F.A.C., if:
(a) the site is contaminated by products solely from the Gasoline Analytical
Group;
(b) a Ouality Assurance Project Plan has been approved pursuant to Rule
17-770.400, F.A.C.;
(c) free product is not present; and
1.The petroleum contamination site is located in an area of G-ll groundwater
and the total volatile organic aromatics concentration present in the groundwater is
less than SO ug/l and:
a. Benzene concentration is 1 ug/l or less; or
b. No potable wells are located within a 1/4 mile radius of the site: or
c. All drinking water sources located within a 1/2 mile radius of the site are
conneoted to a public water system, the wellhead for which is located greater than
1/2 mile of the site; or
2. The petroleum contamination site is located in an area of G-III groundwater
and the total volatile organic aromatics concentration present in the groundwater is
less than 200 ug/l.
(6) The contamination assessment may be concluded and the Contamination
Assessment Report, with a "monitoring-only" proposal, submitted to the Oepartment
for approval pursuant to Rule 17-770.630(4), F.A.C., if:
(a) the site is contaminated by products solely from the Gasoline Analytical
Group;
(b) a Quality Assurance Project Plan has been approved pursuant to Rule
17-770.400, F.A.C.;
(c) free product is not present; and
1. The petroleum contamination site is located in an area of G-ll groundwater,
total volatile organic aromatics concentration in the groundwater is less than SO ug/l
and potable wells are located within a 1/4 mile radius of site; or
2. The petroleum contamination site is located in an area of G-III groundwater
and the total volatile organic aromatics concentrations in the groundwater is greater
than 200 ug/l but less than 1000 ug/l.
(7) The contamination assessment may be concluded and the Contamination
Assessment Report, with a "no further action" or "monitoring-only" proposal,
submitted to the Department for approval pursuant to Rules 17-770.630(3) or (4),
F.A.C., if the site is contaminated by products from the Kerosene Analytical Group,
the Mixed Product Analytical Group, or used oil, and provided the appropriate
analytical procedures described in Rule 17-770.600(8), F.A.C., are performed.
17-770.600(4) — 17-770.600(7)
02-21-90
9
PER 1990
PEIROLEUH CONTAMINATION SITE CLEANUP CRITERIA
.7-770
(8) For sites that do not qualify for "no further action" or "moniloring-only"
alternatives pursuant to Rules 17-770.600(5) or (6). F.A.C., the analysis for dissolved
constiluenls in surface water and groundwater, and the analytical procedures to be
used, shall he from one of the categories described in Rules 17-770.600(8)(a)-(d),
F.A.C. Ihe type of petroleum or petroleum product causing the contamination will
determine which section is appropriate.
(a) Gasoline analytical group.
1.
1,2-Dichloroethane
(EPA
Method 601 or
5030/8010)
2.
Benzene
(EPA
Method 602 or
5030/8020)
3.
Toluene
(EPA
Method 602 or
5030/8020)
4.
Total Xylenes
(EPA
Method 602 or
5030/8020)
5.
Ethylbenzene
(EPA
Method 602 or
5030/8020)
6.
Total Volatile Organic
(EPA
Method 602 or
5030/8020)
Aromatics
7. Volatile Organic (Listed priority pollutant
Hatocarbons compounds by EPA Method 601 or
5030/8010)
8. 1,2-Dibromoethane (EDB)
9. Methyl Tert-Butyl
Ether (MTBE)
10. Lead
(b) Kerosene and Mixed Product analyt
f. 1,2-Oichloroethane
(EPA Method 601 or 5030/8010 with
electron capture detector
substituted for Hall detector, 2
column confirmation, or EPA Method
504)
(EPA Method 602 or 5030/8020)
(EPA Method 239.2 or 7421 or Standard
Method 304)
ical groups.
(EPA Method 601 or 5030/80T0)
Polynuclear Aromatic (EPA Method 610, 8100, 625,
Hydrocarbons (PAH) 3510/8250 or 3510/8270 including
the 15 listed priority pollutant
PAHs plus 2-methylnaphthalene and
1-methylnaphthalene)
17-770.600(8) — 17-770.600(8Xb)2.
02-21-90
10
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PER 1990
PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA
17-770
3. Benzene
4. Toluene
5. Total Xylenes
6. Ethylbenzene
7. 1,2-Dibromoethane (EDB)
8. Methyl Tert-Butyl
Ether (MTBE)
9. Total Volatile Organic
Aromatics
10. Volatile Organic
Halocarbons
11. Lead
12.
Total Recoverable
Petroleum Hydrocarbons
(EPA Method 602 or 5030/8020)
(EPA Method 602 or 5030/8020)
(EPA Method 602 or 5030/8020)
(EPA Method 602 or 5030/8020)
(EPA Method 601 or 5030/8010 with
electron capture detector
substituted (or Hall detector,
Z column confirmation, or EPA
Method 50D
(EPA Method 602 or 5030/8020)
(EPA Method 602 or 5030/8020)
(Listed priority pollutant
compounds by EPA Method 601 or
5030/8010)
(EPA Method 239.2 or 7421 or
Standard Method 304)
(EPA Method 418.1)
(c) If petroleum product contaminants are from used oil, an identified product
not listed in the Gasoline, Kerosene, or Mixed Product analytical group, or are from a
product for which the specified identity is unknown, analysis will be performed as
follows:
1. Surface water and groundwater samples shall be analyzed (using the specified
methods) for the following parameters:
a. Metals
Arsenic
Cadmium
Chromium
(EPA Method 206.2, 206.3.
7060 or 7061)
(EPA Methoo c00.7, 213.1, 213.2,
6010. 7130 or 7131)
(EPA Method 200.7, 218.2. 6010
or 7191)
Lead
(EPA Method 239.2 or 7421)
17-770.600(8Xb)3. -- l7-770.600(8)(c)1.a.
02-'" 90
11
PER 1990
PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA
17-770
b. Priority Pollutant
Volatile Organics
c. Priority Pollutant
Extractable Organics
d. Non-priority Pollutant
Organics (with GC/MS peaks
greater than 10 ppb)
e. Total Recoverable
Petroleum Hydrocarbons
(EPA Method 624 or 5030/8240)
(EPA Method 625. 3510/8250 or
3510/8270)
(EPA Methods.624 or 5030/8240
and 625, 3510/8250 or 3510/8270)
(EPA Method 418.1)
2. Soil samples shall be analyzed (using the specified methods) for the following
parameters:
a. Total Metals
Arsenic
Cadmium
Chromium
Lead
(EPA Method 7060 or 7061)
(EPA Method 60)0. 7130, or 7131)
(EPA Method 6010. 7190 or 7191)
(EPA Method 6010. 7420 or 7421)
b. Extraction Procedure Toxicity Characterization for metals (one soil sample
from the area of highest contaminant concentration shall be collected for extraction
by EPA Method 1310 and analyzed for the following parameters):
Arsenic
(EPA
Method 7060 or 7061)
Barium
(EPA
Method 6010 or 7080)
Cadmium
(EPA
Method 6010, 7130 or 7131)
Chromium
(EPA
Method 6010. 7190 or 7191)
Lead
(EPA
Method 6010, 7420 or 7421)
Mercury
(EPA
Method 7471)
Selenium
(EPA
Method 7740 or 774 1)
Silver
(EPA
Method 6010 or 7760)
17-770.600(8)(c)1.b. -- 17-770.600(8Kc)2.b.
02-21-90
12
-------
DEW 1990 PETROLEUH CONTAMINATION SITE CLEANUP CRITERIA 17-770
c. Priority Pollutant Analysis (one soil sample from the area of highest
contaminant concentration shall be collected and analyzed for the following
parameters):
Volatile Organics (EPA Method 5030/8240)
Extractable Organics (EPA Method 3510/8250 or
3510/8270)
d. Non-priority Pollutant Organics with GC/MS peaks greater than 10 ppb. One
soil sample from the area of highest contaminant concentration shall be collected and
analyzed using EPA Methods 5030/8240 and EPA Method 3510/8250 or 3510/8270.
e. Total Recoverable (EPA Method 418.1)
Petroleum Hydrocarbons
(d) If the contamination consists of petroleum as defined in Section 376.301(9),
F.S., surface water, groundwater and soil samples shall be analyzed for Total
Recoverable Petroleum Hydrocarbons using EPA Method 418.1.
(9) If initial testing, conducted pursuant to Rule 17-770.600(8), F.A.C., does not
indicate the presence of a listed dissolved constituent, or indicates that the presence
of a listed dissolved constituent is due to an ambient concentration, subsequent
testing need not include that constituent.
(10) If soil sampling and analysis are an objective of the contamination
assessment, such sampling and analysis shall be consistent with the Referenced
Standards in Rule 17-770.130, F.A.C., or with analytical methods approved by the
Department.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 11-1-87; Amended 2-4-88; Formerly 17-70.008; Amended 2-21-90.
17-770.630 Contamination Assessment Report.
(1) Within six (6) months of discovery of contamination, two copies of the
Contamination Assessment Report shall be prepared and submitted to the Department
for approval. The Department has developed a guidance document for the preparation
of a Contamination Assessment Report, referenced in Rule 17-770.130(3). The use of
the guidance document to prepare a Contamination Assessment Report is encouraged
as it wilt result in a uniform format, and allow the Department to expedite its
review. Applicable portions of the Contamination Assessment Report shall be signed
and sealed pursuant to Rule 17-770.500, F.A.C. The Contamination Assessment
Report shall:
02-21-90
17-770.600(8Xc)2.c. -- 17-770.630(1)
13
PER 1990 PETROLEUH COWTAHINA TI ON SITE CLEANUP CRITERIA 17-770
(a) Summarize all tasks which were implemented pursuant to the contamination
assessment, including the following ns applicable:
1. Copy of Quality Assurance Project Plan approval;
2. Sampling locations and rationale for selection of these locations:
3. A description of methods and equipment used to identify and quantify soil or
sediment contamination;
4. A description of water sampling methods;
5. Parameters analyzed for, analytical methods used, and detection limits of
these methods;
6. Piezometer, well point, and well construction details including methods and
materials;
7. A description of any methods such as pump tests, slug tests, permeability
tests, computer modeling used to determine aquifer properties:
8. A description of any geophysical methods for the project:
9. Details of any other assessment methodology for the site;
10. The results of any survey used to identify and sample private wells;
11. A description of the regional geology;
12. A description of natural and man-made features pertinent to the assessment;
13. A description of methods and equipment used to determine sitc-specific
geology and hydrogeology; and
14. Details of any initial remedial actions conducted at the site such as product
recovery and soil removal or treatment;
(b) Specify results and conclusions regarding contamination assessment
oojectives outlined in Rules 17-770.600(2Ka)-(h). F.A.C.; and
(2) Within two (2) months of submission of a complete Contamination
Assessment Report , the Department shall approve or disapprove the Contamination
Assessment Report. The Contamination Assessment Report shall not be deemed
complete until all requested information has been received by the Department. If any
person responsible for conducting site rehabilitation believes the requested
information to be unnecessary or unauthorized, that person may request that the
Department continue to review the Contamination Assessment Report within the
applicable time frame.
(3) If justified by results of the contamination assessment, a "no further action"
proposal may be submitted. The Order approving a "no further action" proposal shall
constitute the Site Rehabilitation Completion Order described in Rule 17-770.760(4),
F.A.C.
(4) If justified by results of the contamination assessment, a "monitoring-only"
proposal may be submitted. The Order approving a "monitoring-only" proposal shall
constitute the Order approving the Remedial Action Plan described in Rule
17-770.700(3), F.A.C.
(5) A risk assessment/justification proposal shall be submitted if the Oepartment
deems the risk assessment is necessary or if the person responsible for conducting site
rehabilitation wishes to:
02-21-90
17-770.630(1Ha) — 17-770.630(5)
14
-------
PER 1990 PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA 17-770
(a) develop alternative Site Rehabilitation Levels other than the target levels
set forth in Rule 17-770.73CK5), F.A.C.; or
(b) justify a "no further action" or "monitoring-only" proposal where Rules
17-770.600(5) or (6), F.A.C., do not apply and if the results of the contamination
assessment alone do not support a "no further action" or "monitoring-only" proposal.
Specific Authority: 376.303, 376,3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.009; Amended 2-21-90.
17-770.640 Risk Assessment.
(1) Within 2 months after approval of the risk assessment /justification proposal
in the Contamination Assessment Report or notification from the Department that a
risk assessment is required, the risk assessment /justification. using appropriate risk
assessment elements, shall be conducted and 3 copies of the Risk Assessment Report
shall be submitted to the Department for review.
(2) Risk Assessment Task Elements.
(a) Exposure Assessment - The Exposure Assessment shall identify routes by
which receptors may be exposed to contaminants and shall estimate contaminant
levels lo which receptors may be exposed. The Exposure Assessment should:
1. Identify contaminant concentrations found at the site;
2. Identify background contaminant concentrations found at the site and in the
aquifer as a whole;
3. Identify potential exposure routes;
4. Identify potential receptors for each exposure route: and
5. Estimate or calculate expected contaminant concentrations to which actual
or potential receptors may be exposed.
(b) Toxicity Assessment - The Toxicity Assessment shall determine human
health and environmental criteria based on information from scientific literature for
contaminants found at the site. The criteria shall be developed for applicable
exposure routes identified in the Exposure Assessment which may include:
1. Potable water exposure route for ingestion, dermal contact, and inhalation of
vapors and mists;
2. Non-potable domestic water exposure route for dermal contact, inhalation of
vapors and mists, ingestion of food crops irrigated with such water, lawn watering,
ingestion by pets and livestock, and other related exposures;
3. Soil exposure route for ingestion, dermal contact, inhalation, and ingestion
by humans or animals of food crops grown in contaminated soils: and
17-770.630(5Xa) — 17-770.640(2)(b)3.
02-21-90
15
DEW 1990
PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA
17-770
4. Non-potable surface water exposure route for prevention of adverse effects
on human health or the environment. Adverse effects on aquatic or marine biota
(including any bio-accumulative effects in the food chain), on the designated use of
the resource, and on humans (through dermal contact while using the resource for
recreational purposes) should be considered.
(c) Risk Characterization - The Risk Characterization shall utilize the results of
the Exposure Assessment and the Toxicity Assessment to characterize cumulative
risks to the affected population and the environment from contaminants found at the
site. Based on contaminant levels presently found at the site, a risk characterization
shall be performed which considers:
1. Risks to human health and safety from the contamination;
2. Effects on the public welfare from exposure to the contamination; and
3. Environmental risks in areas which are, or will be, ultimately affected by the
contamination.
(d) Justification for alternative site rehabilitation levels, "no further action"
proposal or "monitoring-only" proposal - The site rehabilitation levels shall .be those
contaminant concentrations which must be achieved in order for remedial action to be
deemed complete:
1. Site rehabilitation levels shall be the target levels set forth in Rule
17-770.730(5), F.A.C., or other human health and environmental criteria developed in
the Toxicity Assessment, unless the person responsible for conducting site
rehabilitation can demonstrate that site-specific factors justify development of
alternative site rehabilitation levels, a "no further action" proposal or a
"monitoring-only" proposal. These factors may include:
a. The present and future uses of the affected aquifer and adjacent surface
waters with particular consideration of the probability that the contamination is
substantially alfecting. or will migrate to and substantially affect, a known public or
private source of potable water;
b. The technical feasibility of achieving the water quality criteria based on a
review of reasonably available technology and costs:
c. Individual site characteristics, including natural rehabilitative processes: and
d. The results of the risk assessment.
2. Contaminant transport models may be employed to document that human
health and environmental risks from alternative site rehabilitation levels are
acceptable.
17-770.640(2)(b)4. -- 17-770.640<2Xd)2.
02-21-90
16
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PER 1990 PETROLEUH CONTAMINATION SITE CLEANUP CRITERIA 17-770
(3) Within two (2) months of submission of a complete Risk Assessment Report,
the Department shall approve or disapprove the Risk Assessment Report. The Risk
Assessment Report shall not be deemed complete until all requested information has
been received by the Department. If any person responsible for conducting site
rehabilitation believes the requested information to be unnecessary or unauthorized,
that person may request that the Department continue to review the Risk Assessment
Report within the applicable time frame.
(4) If justified by results of the risk assessment, a "no further action" proposal
may be submitted as part of the Risk Assessment Report. The Order approving a "no
further action" proposal shall constitute the Site Rehabilitation Completion Order
described in Rule 17-770.760(5), F.A.C.
(5) If justified by results of the risk assessment, a "monitoring-only" proposal
may be submitted as part of the Risk Assessment Report. The Order approving a
"monitoring-only" proposal shall constitute the Order approving the Remedial Action
Plan described in Rule 17-770.700(3). F.A.C.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 2-21-90.
17-770.660 Monitoring.
(1) Groundwater monitoring shall be conducted if one of the following conditions
exists:
(a) A "monitoring-only" proposal has been approved by the Department pursuant
to Rules 17-770.630(4) or 17-770.640(5), F.A.C ; or
(b) Remedial action has achieved the cleanup endpoints described in Rules
17-770.730(5) or (7), F.A.C.
(2) When the criteria in Rule 17-770.660(1), F.A.C., has been met, a written
monitoring plan shall be submitted to the Department for approval.
(3) The monitoring plan shall provide the following information:
(a) Location of monitoring wells
1. A minimum of three monitoring wells is required. At least one well shall be
located in each of the following areas as determined by the contamination assessment:
a. Downgradient from the area of contamination;
b. In the area of highest contaminant concentration; and
c. Upgradieht from the area of contamination.
2. Existing monitoring wells not previously contaminated by free product may
be used if constructed and positioned correctly;
(b) Duration of the monitoring period. The monitoring period shall be a
minimum of one year; and
(c) If the monitoring plan is submitted because the cleanup endpoint described in
Rule 17-770.730(5), F.A.C., has been reached, analytical results demonstrating this
conclusion shall be included.
f 02-21-90
17-770.640(3) — 17-770.660(3Xc)
17
PER 1990 P EIROLEUH CONTAMINATION SITE CLEANUP CRIIERIA 17-770
(4) Monitoring wells shall be sampled quarterly for analysis of dissolved
contaminants identified on site.
(5) Analytical results shall be reported to the Department.
(6) If analysis of groundwater samples indicates contaminant concentrations
exceed those approved pursuant to Rules 17-770.630(4), 17-770.640(5). 17-770.730(6)
or (9). F.A.C., the person responsible for conducting site rehabilitation will resample
those wells 14 days after the initial positive result. If these two consecutive analyses
confirm contaminant concentrations, then the person responsible for conducting site
rehabilitation must perform a contamination assessment as described in Rules
17-770.600(2), (3), and (8M10), F.A.C. When this contamination assessment is
completed, a Contamination Assessment Report shall be prepared as described in Rule
17-770.630. F.A.C., and submitted to the Department for approval.
(7) All monitoring plans must be approved by the Department.
Specific Authority: 376.303, 376.3071, 403.061. F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 2-21-90.
17-770.700 Remedial Action Plan.
(1) Within two (2) months of approval of a Contamination Assessment Report or
a Risk Assessment Report, two copies of the Remedial Action Plan shall be submitted
to the Department for approval prior to implementation. Applicable portions of the
Remedial Action Plan shall be signed and sealed pursuant to Rule 17-770.500, F.A.C.
The objective of the remedial action shall be to achieve a cleanup of the
contaminated area to target levels set forth in Rule 17-770.730(5). F.A.C., or
alternative site rehabilitation levels developed in the optional risk assessment.
Alternatively, if justified by the results of the contamination assessment, a
monitoring plan as described in Rule 17-770.660(3), F.A.C., may be proposed.
(2) The Remedial Action Plan shall include:
(a) A brief summary of the Contamination Assessment Report conclusions;
(b) A complete round of groundwater analyses performed after approval of the
Contamination Assessment Report, unless the most recent groundwater analytical
results submitted in the complete Contamination Assessment Report are from a round
of groundwater analyses performed less than six months before submittal of the
Remedial Action Plan.
(c) Rationale for the remedial action selected which shall include at a minimum:
1. Results from any pilot studies or bench tests;
2. Results of remedial alternative evaluation based on the following criteria:
a. Long and short term environmental impacts;
b. Implementability, which may include, but not be limited to, ease of
construction, site access, and necessity for permits;
17-770.660(4) — 17-770.70(X2Xc)2.b.
02-21-90
18
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DER 1990 PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA 17-770
c. Operation and maintenance requirements;
d. Reliability;
e. Feasibility;
f. Estimated time required to achieve cleanup; and
g. Costs;
(d) Design and construction details for the remedial action;
(c) Operational details of the remedial action including;
1. The disposition of any effluent;
2. Expected contaminant concentrations in the effluent;
3. The expected concentrations and quantities of any contaminants discharged
into air as a result of remedial action; and
4. The schedule for completion of the remedial action;
(f) Dissolved constituents to be monitored in the recovery well(s) and in the
affluent from the treatment system (based on the type of treatment employed and
disposition of the effluent);
(g) Designation of monitoring wells and proposed methodology to verify
accomplishment of Remedial Action Plan goals; and
(h) Details of any proposed treatment or disposition of contaminated soils or
sediments. If excess soil contamination exists at the site and remedial action does not
include treatment or removal of such soils, the basis for the decision to forego
treatment or removal shall be provided.
(i) If soil contaminated by used oil remains at the site after initial remedial
action, the treatment or removal of such soils must be addressed in the Remedial
Action Plan.
(3) Within two (2) months of submission of a complete Remedial Action Plan, the
Department shall issue an Order approving or disapproving the Remedial Action Plan.
The approval of the Remedial Action Plan shall constitute all necessary Departmental
approvals. The Remedial Action Plan shall not be deemed complete until all
requested information has been received by the Department. If any person responsible
for conducting site rehabilitation believes the requested information to be
unnecessary or unauthorized, that person may request that the Department continue
to review the Remedial Action Plan within the applicable time frame.
(4) Site monitoring and analyses may be implemented prior to Department
approval of the Remedial Action Plan.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.010; Amended 2-4-88; Amended 2-21-90.
17-770.730 Remedial Action.
(1) Within two (2) months of issuance of the Order approving the Remedial
Action Plan, the person responsible for conducting site rehabilitation shall initiate
remedial action.
(2) Within four (4) months of issuance of the Order approving the Remedial
Action Plan, record drawings ("as-built" drawings) of the remedial action system shall
be submitted to the Department.
02-21-90
17-770.700(2Xc)2.c. — 17-770.730(2)
19
DER 1990 PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA 17-770
(3) During implementation of the Remedial Action Plan, reports containing the
following information shall be submitted to the Department annually unless a greater
frequency is specified in the Remedial Action Plan:
(a) Data collected at least monthly from monitoring and recovery wells showing
water levels and depth and horizontal extent of free product;
(b) Total volume of free product recovered during each month of the reporting
period:
(c) Concentrations of dissolved constituents as specified in Rule
17-770.700(2Xe), F.A.C., based on analysis performed at least weekly for the lirst
month, at least monthly for the first year, and at least quarterly thereafter on the
effluent from the treatment system; and
(d) Concentrations of dissolved constituents as specified in Rule
17-770.7.00(2Xe), F.A.C., based upon analyses performed at least monthly for the first
year and at least quarterly thereafter on the water phase from the recovery wcll(s).
measured after free product has been eliminated.
(e) Concentrations of dissolved constituents as specified in Rule 17-770 730(7),
F.A.C., if the person responsible for conducting site rehabilitation intends to utilize
the provisions of that section.
(4) If, during operation of the treatment system, the system fails or
concentrations of contaminants in the effluent rise above those established in the
Remedial Action Plan for the site-specific conditions, the person responsible for
conducting site rehabilitation shall take corrective actions to return concentrations to
acceptable levels. Details of all such incidents shall be included in the annual report
described in Rule 17-770.730(3). F.A.C.
(5) Groundwater treatment and free product recovery operations shall be
complete when free product has not been identified in any recovery well or monitoring
well for a period of one year and when the following applicable conditions arc met:
(a) For G-l and G-ll groundwater, analyses of groundwater samples from
designated monitoring wells show that all of the applicable petroleum product
contaminants have been reduced to, or below, ambient contaminant concentrations or
to the following target levels (unless higher alternative site rehabilitation levels have
been established in the optional risk assessment in which case the contaminants must
be reduced to, or below, those levels);
1.
For the Gasoline analytical group:

a.
Benzene
1 ug/l
b.
1,2-dichloroethane
3 ug/l
c.
1,2-dibromoethane (EDB)
0.02 ug/l
d.
Total Volatile
50 ug/l

Organic Aromatics

e.
Lead
50 ug/l
02-21-90
17-770.730(3) - 17-770.730(5)(a)1.e.
20
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PER 1990
PETROLEUM C0NTAH1WAT ION SITE CLEANUP CRITERIA
17-770
f. Methyl Tert-ButyI
Ether (MT0E)
2. For the Kerosene or Mixed
a. Benzene
b. 1,2-dibromoethane (EDB)
c. Total Volatile
Organic Aromatics
d. PAHs (Polynudear
Aromatic Hydrocarbons
excluding Naphthalenes)
e. Total Naphthalenes
f. Lead
g. Methyl Tert-Butyl
Ether (MTBE)
h. Total Recoverable
Petroleum Hydrocarbons
50 ug/l
Product analytical group:
I ug/l
0.02 ug/l
50 ug/l
(Detection limits of EPA Method
610, 8100, 625, 3510/8250 or
3510/8270 or best achievable
limit given conditions of
the sample. 10 ug/l maximum)
100 ug/l (the total of naphthalene
and methylnaphthalenes)
50 ug/l
50 ug/l
5 mg/l
3. For petroleum or petroleum product contaminants other than Gasoline,
Kerosene, and Mixed Petroleum Product analytical group contaminants, groundwater
standards and minimum criteria in Chapter 17-3. F.A.C., shall apply; or
(b) For G-lll groundwater, analysis of groundwater samples from designated
monitoring wells show that concentrations of petroleum or petroleum product
contaminants have been reduced to, or below, ambient contaminant concentrations, or
meet the minimum criteria in Chapter 17-3, F.A.C.
(6) When the person responsible for conducting site rehabilitation believes the
cleanup endpoint described in Rule 17-770.730(5), F.A.C., has been reached, a
monitoring plan shall be submitted to the Department pursuant to Rule 17-770.660,
F.A.C.
(7) Notwithstanding Rule 17-770.730(5), F.A.C., remedial action may be
discontinued based on the following demonstration and analysis:
17-770.730(5Xa)1.f. - 17-770.730(7)
02-21-90
21
PER 1990 PETROLEUH CONTAMINATION SITE CLEANUP CRITERIA
17-770
(a) After a minimum of one year of groundwater treatment, concentrations of
dissolved contaminants have leveled off. "Leveling off" shall mean that the graph of
total volatile organic aromatics contaminant concentration (measured monthly in the
designated monitoring wells) versus time fits a curve generally defined by the
equation C = C(f C0e"'(', that the lower limb of the curve is substantially linear, and
that the slope of the final portion of the curve approaches zero. If the petroleum
contaminant does not contain a representative amount of those constituents defined
as total volatile organic aromatics. the person responsible for conducting site
rehabilitation shall designate an appropriate contaminant for application to the
curve. Appropriate statistical methods shall be applied to demonstrate this conclusion.
1. In the equation above, symbols are defined as follows:
a. C: Contaminant Concentration at time t;
b. Cf: Coefficient representing final concentration which the curve
approaches asymptotically;
c. C0: Coefficient representing concentration difference between the
final concentration and the concentration at time zero;
d. e: 2.718. the base of natural logarithms:
e. k: Coefficient representing exponential factor which indicates how
fast concentration approaches Cf.
f. t: Time in days from some fixed starting point;
2. The one year minimum treatment period may be shortened if, based on the
criteria in Section 376.3071(5Kb), F.S.. it can be demonstrated to the Department that
a shorter time period is appropriate and;
(b) An analysis has been made of:
1. Technical feasibility of other proven groundwater treatment techniques to
further reduce the contaminant levels at the site;
2. Costs and time frames involved to further reduce contaminant levels
employing the alternative method(s) proposed; and
3. Effects on the designated use of the water resource, public health, and
environment if contaminants remain at existing levels as evaluated through the
process described in Rule 17-770.640, F.A.C.
(8) The results of the demonstration and analysis described in Rules
17-770.730(7Xa) and (b), F.A.C., shall be compiled in a report and submitted to the
Department for approval. The Department shall determine whether alternative
methods should be employed to effect further treatment, however, if alternative
methods are not required, remedial action shall be deemed complete.
(9) Following termination of remedial action, designated monitoring wells shall
be sampled quarterly for a period of one year for the contaminants which were
identified at the site.
02-21-90
17-770.730(7Ka) — 17-770.730(9)
-------
PER 1990
PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA
17-770
(10) During implementation of the Remedial Action Plan, the person responsible
for conducting site rehabilitation may elect to conduct further assessment to
determine alternative site rehabilitation levels or may propose alternative
technologies. During such assessment, remedial action shall continue.
(11) During the implementation of the Remedial Action Plan, the person
responsible for conducting site rehabilitation may determine that a "no further action"
proposal or a "monitoring only" proposal is justified. The data justifying such a
proposal must bo submitted to the Department. The order approving a "no further
action" proposal shall constitute the Site Rehabilitation Completion Order described
in Rule 17-770.760(4), F.A.C. The order approving a "monitoring only" proposal shall
constitute the order approving the revision to the Remedial Action Plan described in
Rule 17-770.700(3), F.A.C.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021. 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.011; Amended 2-21-90.
17-770.760 Site Rehabilitation Completion.
(1) Following completion of monitoring pursuant to Rule 17-770.660, F.A.C., the
person responsible for conducting site rehabilitation shall submit two copies of the
Site Rehabilitation Completion Report to the Department for approval. Applicable
portions of the Site Rehabilitation Completion Report shall be signed and sealed
pursuant to Rule 17-770.500, F.A.C. The Site Rehabilitation Completion Report shall
contain a demonstration, with supporting documentation, that site cleanup objectives
have been achieved.
(2) Within thirty (30) days of receipt of the Site Rehabilitation Completion
Report, the Department shall approve the Site Rehabilitation Completion Report or
make a determination that the Site Rehabilitation Completion Report does not
contain sufficient information to support the demonstration that cleanup objectives
have been achieved.
(3) If the Department determines that the Site Rehabilitation Completion
Report is not adequate based upon information provided in Rule 17-770.760(1), F.A.C.,
the Department will notify the person responsible for conducting site rehabilitation in
writing. Site rehabilitation activities shall not be deemed complete until such time as
a Site Rehabilitation Completion Report is approved.
(4) Upon approval of the Site Rehabilitation Completion Report, the Department
shall issue a Site Rehabilitation Completion Order. This Order shall constitute final
agency action regarding cleanup activities at the site.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.012; Amended 2-21-90
17-770.730(10) — 17-770.760(History)
02-21-90
23
PER 1990
PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA
17-770
17-770.800 Time Schedules.
(1) If site rehabilitation is being conducted by the Department through its
Response Action Contractor, the time frames set forth in the contract between the
Department and the contractor shall take precedence over the time frames set forth
in this chapter.
(2) If site rehabilitation is being conducted by a local government, the time
frames specified in the contract between the Department and the local government
shall take precedence.
(3) If the person responsible for conducting site rehabilitation has entered into a
Consent Order with the Department for site rehabilitation, the time frames set forth
in the Consent Order shall take precedence over the time frames set forth in this
chapter.
(4) If site rehabilitation was initiated and remedial actions were not complete
prior to November 1, 1987, the following time frames shall apply:
(a) Within ninety (90) days of the effective date of this chapter, the person
responsible for conducting site rehabilitation shall submit a report to the Department
which summarizes all remedial actions taken prior to the effective date of this
chapter. The report shall conform to the submittals required by this chapter to the
maximum extent possible;
(b) After reviewing the report, the Department shall notify the person
responsible for conducting site rehabilitation in writing within thirty (30) days
concerning any additional information needed and shall specify the next phase of the
site rehabilitation which is required.
(c) Upon notice, the person responsible for conducting site rehabilitation shall
submit the next appropriate document required by this chapter in accordance with the
time schedule applicable to that document as measured from the date of notice. All
further submittals shall be made in accordance with time frames set forth in this
chapter.
(5) Additional information necessary for the Department to evaluate any plan or
report shall be provided within two (2) months of receipt of a request.
02-21-90
17-770.800 -- 17-770.800(5)
24
-------
PER 1990 PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA 17-770
(6) Persons responsible lor conducting site rehabilitation may obtain a
modification of the time frame for any action set forth in this chapter for good cause
shown by requesting in writing that the Department make such a modification. The
request shall specify which time frames are to be modified, the amount of additional
time required, and provide justification for the request. The request shall be received
by the Department at least twenty (20) days prior to the time the action is to be
initiated. If emergency situations at a site do not allow for a full twenty (20) days
notice, the person responsible for conducting site rehabilitation shall detail such
emergency situation in the request. Within twenty (20) days of receipt of a request
for modification, the Department shall notify the person responsible for conducting
site rehabilitation if additional information regarding the request is needed. The
Department shall notify the person responsible for conducting site rehabilitation
within twenty (20) days of receipt of the request or the additional information as to
whether modification of the time frames will be allowed.
(7) The failure of any person responsible for conducting site rehabilitation to
meet any time frame herein shall be a violation of Chapter 403, F.S., and shall be
enforceable by the Department pursuant to Section 403.121, F.S.
(8) The failure of the Department to meet any time frame herein shall entitle
any person responsible for conducting site rehabilitation to compel compliance
through the provisions of Section 403.412, F.S., or through such remedies as may be
available and appropriate in circuit court. In no circumstances shall the Department's
failure to meet any time frame herein be construed as approval of any plan or action
by the Department.
Specific Authority: 376.303, 376.3071, 403,061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.013; Amended 2-21-90.
17-770.830 Motiees.
(1) Persons responsible for conducting site rehabilitation shall provide a drilling
schedule or other written notification to the Department at least ten days prior to
installing monitoring or recovery wells, except as provided in Rule 17-770.300,
F.A.C., and shall allow Department personnel the opportunity to observe the
installation of the wells. If the Department wishes to be present during well
installation, It shall be the Department's responsibility to confirm the installation is
being conducted in accordance with the drilling schedule or notice;
(2) Persons responsible for conducting site rehabilitation shall provide written
notification to the Department at least ten (10) days prior to any sampling required,
and shall allow Department personnel to observe sampling and take split samples.
Raw data shall be exchanged as soon as data are available. If the Department wishes
to be present during sampling, it shall be the Department's responsibility to confirm
the sampling is being conducted in accordance with the written notification.
17-770.800(6) — 17-770.830(2)
02-21-90
25
PER 1990 PEIROLEUM C0NIAHINAT10N SITE CLEANUP CRITERIA 17-770
(3) The Department shall issue notice ol its intent to either approve or reject
any plan or report within thirty (30) days of receipt of the complete plan or report,
unless otherwise specified in this chapter. The notice shall be in substantially the
same form as described in Rule 17-103.150(3). F.A.C.
Specific Authority: 3/6.303. 376.307). 403.061. F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062. F.S.
History: New 11-1-87; Formerly 17-70.014; Amended 2-21-90.
17-770.860 Permit Requirements.
Nothing contained in this chapter shall relieve any person from obtaining any
necessary and appropriate federal, state, or local authorization, certification, or
permits, except as provided in Rule 17-770.700(3). F.A.C.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.015; Amended 2-21-90.
17-770.880 Local Programs for Control of Contamination.
(1) Pursuant to Section 376.3073, F.S., the Department may contract with local
governments for the administration of certain departmental responsibilities under this
rule. Activities undertaken by any such participating locally administered program
may include, among others, the investigation and assessment of contamination sites;
restoration or replacement of potable water supplies of affected persons;
maintenance, monitoring, rehabilitation of contamination sites, implementation of a
compliance verification program and; inspection and supervision of any of these
including review of required technical plans and reports. A list of participating
locally administered programs may be obtained from the Department.
(2) Notwithstanding involvement by locally administered programs pursuant to
the contractual authorization granted by the Department, final orders related to the
filing of plans, reports, or any other submittals made by a person under the provisions
of this Chapter shall be undertaken by the Department, and shall be subject to the
provisions of Florida's Administrative Procedure Act, Chapter 120, F.S.
Specific Authority: 376.303, 376.3071, 403.061. F.S.
Law Implemented: 376.3071, 403.021, 403.061, 403.062, F.S.
History: New 2-21-90.
17-770.890 Approval of Alternative Procedures and Requirements.
(1) Any person subject to the provisions of this chapter may request in writing a
determination by the Secretary or his designee that any requirement of this chapter
shall not apply to actions to be undertaken at a site, and shall request approval of
alternate procedures or requirements.
(2) The request shall set forth at a minimum the following information:
17-770.830(3) — 17-770.890(2).
02-21-90
26
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DEB 1990
PETROLEUM CONTAMINATION SITE CLEANUP CRITERIA
17-770
(a) The specific site for which an exception is sought;
(b) The specific provisions of Chapter 17-770, F.A.C., from which an exception
is sought;
(c) The basis for the exception;
(d) The alternate procedure or requirement for which approval is sought;
(e) A demonstration that the alternate procedure or requirement provides an
equivalent or greater degree of protection for the lands, surface waters, or
groundwaters of the state as the established requirement; and
(f) A demonstration that the alternate procedure or requirement is at least as
effective as the established procedure or requirement.
(3) The Secretary or his designee shall specify by order each alternate procedure
or requirement approved for an individual site in accordance with this section or shall
issue an order denying the request for such approval. The Department's order shall be
agency action, reviewable in accordance with Section 120.57. F.S.
(4) The provisions of this section do not preclude the use of any other applicable
relief provisions.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021. 403.061, 403.062, F.S.
History: New 11-1-87; Formerly 17-70.016; Amended 2-21-90.
17-770.900 Forms. The forms used by the Department in the Petroleum
Contamination Cleanup Program are adopted and incorporated by reference in this
section. The form is listed by rule number, which is also the form number, and with
the subject, title, and effective date. Copies of forms may be obtained by writing to
the Department of Environmental Regulation, Bureau of Waste Cleanup. 2600 Blair
Stone Road, Tallahassee, FL 32399-2400.
(1) Petroleum or Petroleum Product Contamination Report Form,
January 1, 1990.
Specific Authority: 376.303, J76.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.021, 403.061. 403.062, F.S.
History: New 2-21-90.
17-770.890(2Xa) — 17-770.900(History)
02-21-90
27
-------
PER 1993 PETROLEUH CONTAMINATION 17-771
8ITE PRIORITY RANKING RULE
CHAPTER 17-771
PETROLEUM CONTAMINATION
SITE PRIORITY RANKING RULE
17-771.100 Introduction and Scope.
17-771.200 Definitions.
17-771.300 Scoring System.
17-771.400 Scoring System Application.
17-771.100 Introduction and Scope.
(1) Section 376.3071(2), Florida Statutes, states that
the intent of the Legislature is to establish the Inland
Protection Trust Fund to serve as a repository for funds
which will enable the Department to respond without delay to
incidents of inland contamination related to the storage of
petroleum and petroleum products in order to protect the
public health, safety and welfare and minimize environmental
damage. The priority rules established in this section are
enacted to enable the Department to carry out the
Legislature's intent.
(2) Section 376.3071(5)(a), Florida Statutes, states
that the Department shall establish criteria for determining
priorities for conducting response actions at petroleum
contamination sites based on factors that include, but need
not be limited to:
(a) The degree to which human health, safety, or welfare
may be affected by exposure to the contamination;
(b) The size of the population or area affected by the
contamination;
(c) The present and future uses of the affected aquifer
or surface waters, with particular consideration as to the
probability that the contamination is substantially
affecting, or will migrate to and substantially affect, a
known public or private source of potable water; and
(c3> The effect of the contamination on the environment.
(3) Section 376.3071(5)(a), Florida Statutes, further
states that money in the fund shall be obligated for
response action at individual petroleum contamination sites
in accordance with such established criteria.
17-771.100 - 17-771.100(3)
2-14-93
1
PER 1993 PETROL EUH CONTAMI NATION 17-771
SITE PRIORITY RANKING RULE
(4) This rule establishes criteria and a system to score
and rank petroleum contamination sites qualifying for the
Early Detection Incentive Program (Section 376.3071(9),
F.S.), sites qualifying for other authorized site activities
(Section 376.3071 (4) , F.S.), sites participating in the
restoration portion of the Petroleum Liability and
Restoration Insurance Program (Section 37G.3072, F.S.), and
sites qualifying for the Abandoned Tank Restoration Program
(Section 376.305(7), F.S.) to determine the order in which
sites will be addressed by the Department.
Specific Authority: 376.303, 376.305, 376.3071, 376.3072,
F.S.
Law Implemented: 376.305, 376.3071, 376.3072, F.S..
History: New 5-5-87; formerly 17-71.001; Amended 6-5-89,
Amended 11-16-89; 2-14-93.
17-771.200 Definitions.
All words and phrases defined in Section 376.301 F.S.
shall have the same meaning when used in this chapter unless
the context clearly indicates otherwise. The following
words and phrases when used in this Chapter shall, unless
the context clearly indicates otherwise, have the following
mean ings:
(1) "Assignment" means authorization to proceed with
response action through a contract.
(2) "Contamination" or "Contaminated" means a discharge
of petroleum or petroleum products into surface waters,
groundwaters or upon the land, in quantities which may
result in a violation of Chapter 17-302, F.A.C., water
quality standards.
(3) "Free Product" means petroleum or petroleum product
in excess of 0.1 inches in thickness, measured at its
thickest point, floating on the surface of surface waters or
groundwaters.
(4) "Fund" means the Inland Protection Trust Fund.
(5) "Lower Explosive Limit" means the minimum
concentration of vapor to air below which propagation of a
flame will not occur in the presence of an ignition source
measured as the reading on an explosimeter calibrated using
a 200 ppm propane mixture in a 21.5* oxygen atmosphere.
(6) "Obligate", "Obligated", or "Obligation" means a
charge, based on best Department cost estimate, against the
unobligated balance in the fund made in accordance with the
requirements of Chapter 376, Florida Statutes and this rule.
(7) "Program Task" means a phase of site rehabilitation,
including initial remedial action, contamination assessment
report, remedial action plan and remedial action, as
described in Chapter 17-770, F.A.C.
17-771.100(4) - 17-771.200(7)
2-14-93
2
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PER 1993
PETROLEUM CONTAMINATION
8ITE PRIORITY RANKING RULE
17-771
(8) "Recent Product Loss" means a significant product
loss as described in Rule 17-7 61.200(37), F.A.C., within 365
days prior to the date of the site scoring done in
accordance with this rule.
(9) "Recent Spill" means a discharge of petroleum
products within 365 days prior to the date of the site
scoring done in accordance with this rule.
(10) "Site" or "Petroleum or Petroleum Product
Contamination Site" means any contiquous land or inland
surface water, and groundwater areas upon or into which a
discharge of petroleum or petroleum products has occurred.
(11) "Unobligated Balance" means the amount of money
remaining in the fund after the Department has made an
obligation against the fund.
Specific Authority: 376.303, 376.3071, 376.3072, F.S.
I,aw Implemented: 376. 3071, 376. 3072, F.S.
History: tlew 5-5-87; Amended 10-5-8B; formerly 17-71.020;
Amended 6-5-80; Amended 11-16-89; 2-14-93.
17-771.300 Scoring System.
(1) The scoring system is as follows:
(a) Fire/Explosion Hazard
1. Free product or volatilized petroleum products at or
above 20% of the Lower Explosive Limit (LEL) in existing
utility conduits or vaults, or buildings or other inhabited
confined space shall be awarded 60 points.
2. Ignitable free product on surface water or
impoundments shall be awarded 60 points.
(b) Threat to Uncontaminated Drinking Water Supplies
1. Uncontaminated municipal or community well fields of
greater than 100,000 gallons per day permitted capacity with
a well within 1/2 mile of the site shall be awarded 30
points, and
a. If the well field's 1 foot drawdown contour is known
to encompass the site regardless of the well field's
distance from the site, an additional 20 points shall be
awarded, or
b. If the well field is located down gradient of the
site, an additional 15 points shall bo awarded.
2. Uncontaminated private wells constructed prior to
date of contamination discovery, or uncontaminated public
water system well field with less than 100,000 gallons per
day permitted capacity, with a well within 1/4 mile of the
site shall be awarded 20 points, and
a. If the well field's 1 foot drawdown contour is known
to encompass the site regardless of the well field's
distance from the site, an additional 10 points shall be
awarded, or
17-771.200(8) - 17-771.300(1)(b)2.a.
2-14-93
3
PER 1993 PETROLEUM CONTAMINATION 17-771
SITE PRIORITY RANKING RULE
b. If the well field is located down gradient of the
site, an additional 5 points shall be awarded.
3. Uncontaminated surface water body used as a public
water system supply within 1/2 mile of the site shall be
awarded 10 points.
(c) Migration Potential
1. Source Characteristics (select only one)
a. Recent spill or free product found in we 1Is/boreho1cs
shall be awarded 4 points, except that 2 or more inches of
free product found in 2 or more we]Is/boreholes shall be
awarded a total of 6 points.
b. Recent product loss or wells/groundwater
contaminated, but no free product, shall be awarded 2
points.
2. Product Type (select only one)
a. Light petroleum product (kerosene, gasoline, aviation
fuel and similar petroleum products) with water soluble
additives or enhancers (MTDE, ethanol, and similar
substances) shall be awarded 3 points.
b. Light petroleum product with no additives or
enhancers shall be awarded 2 points.
c. Heavy petroleum product (fuel oil, diesel and similar
petroleum products) shall bo awarded 1 point.
(d) Environmental Sotting
1. Site located in G-l area shall be awarded 4 points.
2. Site located in G-2 aquifer shall be awarded 2
points.
3. Site located in high recharge/permeability geological
area shall be awarded 4 points.
4. Site located within 1/2 mile of an Outstanding
Florida Water shall be awarded 1 point.
(2) A Site not meeting the criteria for a category
receives no points for that category.
(3) Points shall be totalled and sites ranked based on
the total numerical score tor a site.
Specific Authority: 376.303, 376.3071, 376.3072, F.S.
Law Implemented: 376.3071, 376.3072, F.S.
History: New 5-5-87, formerly 17-71.030; Amended 6-5-89;
Amended 11-16-89; 2-14-93.
17-771.400 Scoring System Application.
(1) Sites involving incidents of contamination related
to the storage of a petroleum or petroleum product reported
to the Department pursuant to Sections 376.305, 376.3071 or
376.3072, F.S., shall be scored in accordance with the
provisions of the scoring system in Rule 17-771.300. F.A.C.
(2) A priority list of sites shall be developed based on
an ordering of scored sites such that the highest scored
site(s) shall be of highest priority for response action and
the lowest scored site(s) shall be of lowest priority for
response action.
17-771.300(1)(b)2.b. - 17-77 1.400(2)
2-14-93
4
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PER 1993 PETROLEPH COHTAHINATIOH 17-771
BITE PRIORITY RANKING RULE
(3) Scored sites shall be incorporated into the priority
list on a quarterly basis with the position of all sites
previously on the list being adjusted accordingly.
(4) Assignments for program tasks to be conducted by
state contractors or through local government contracts
shall be made according to the most recent priority list and
shall be based on the Department's determination of
contractor logistics, geographical considerations and other
criteria the Department determines are necessary to achieve
cost effective site rehabilitation.
(5) Assignments for program tasks shall be made
beginning with the highest ranked site(s) on the priority
list in effect on the date the assignment is made and
proceed through lower ranked sites .
(6) All scored sites will be reincorporated into the
priority list on a quarterly basis until all sites have been
assigned.
(7) Once an assignment is made, a subsequent quarterly
adjustment to the priority list shall not alter that
assignment unless the Department determines that a more cost
effective approach can be achieved by a reassignment, that a
compelling public health or environmental condition warrants
a reassignment, or that reassignment is otherwise in the
overall public interest.
(8) Regardless of a site's score, the Department may
initiate emergency action for those sites that, in the
judgment of the Department, are an imminent hazard to human
health and safety or where failure to prevent migration of
petroleum contamination would cause irreversible damage to
the environment.
Specific Authority: 376.303, 376.305, 376.3071
F.S.
Law Implemented: 376.305, 376.3071, 376.3072,
History: New 5-5-87; Amended 11-5-87, Amended
formerly 17.71.040; Amended 6-5-89; Amended 11
2- 1 <1 -93 .
17-771.400(3) - 17-771.400(History)
, 376.3072,
F.S.
10-5-88,
-16-89;
2-14-93
5
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PER 1993 REIMBURSEMENT TOR PETROLEUM CONTAMINATION 17-773
SITE CLEANUP
CHAPTER 17-773
REIMBURSEMENT FOR PETROLEUM CONTAMINATION SITE CLEANUP
17-773.100 Introduction and Scope.
17-773.200 Definitions.
17-773.300 Auditing.
17-773.350 Limitations.
17-773.400 Cost and Completion Schedule Estimate.
17-773.500 Program Tasks.
17-773.600 Reimbursement of Capital Expense Items.
17-773.650 Reimbursement Incentives.
17-773.700 Application for Reimbursement.
17-773.750 Reimbursement Application Review.
17-773.800 Reimbursement Schedule.
17-773.900 Forms.
17-773.100 INTRODUCTION AND SCOPE.
(1) Sections 376.3071(9) and (12), F.S., provide that,
in order to encourage voluntary and expeditious
rehabilitation of contamination sites related to the storage
of petroleum or petroleum products, any person responsible
for conducting site rehabilitation at sites with discharges
eligible for the programs described in Section (2) (a) is
entitled to reimbursement from the Inland Protection Trust
Fund at reasonable rates for allowable costs incurred after
January 1, 1985 in connection with site rehabilitation.
(2) This chapter shall apply to requests for
reimbursement of costs integral to rehabilitation of:
(a) Sites eligible for participation in the Petroleum
Cleanup Reimbursement Program established by Section
376.3071, F.S., the Florida Petroleum Liability and
Restoration Insurance Program established by Section
376.3072, F.S., or the Abandoned Tank Restoration Program
established by Section 376.305(7), F.S., where the
contamination is related to the storage of petroleum or
petroleum products; and
(b) Sites submitted for consideration pursuant to
section 376.305(6), F.S.
(3) Section 376.3071(4), F.S., provides for
reimbursement of activities related to removal and
replacement of petroleum storage systems, exclusive of costs
of any tank, piping, dispensing unit, or related hardware,
at sites eligible for participation in the Reimbursement
Program, the Florida Petroleum Liability and Restoration
Insurance Program or the Abandoned Tank Restoration Program
where site restoration is being completed pursuant to
Section 376.3071(17,), F.S., subject to limitations set forth
in Rules 17-773.350 and 17-773.650, F.A.C.
17-773 INDEX - 17-773.100(3)
-1-
04-22-93
PER 1993 REIMBURSEMENT FOR PETROLEUM CONTAMINATION 17-773
SITE CLEANUP
(4) This chapter established procedures and
documentation reguired to receive reimbursement.
(5) Review and approval of reimbursement applications
shall be based upon the statutes, rules, and written
guidelines governing petroleum contamination site cleanup
and reimbursement which were in effect at the time the work
was performed or the records of activities and expenses were
generated, as applicable. Records relating to site
rehabilitation which were generated prior to the effective
date of specific requirements in a statute, rule or written
guideline shall, to the greatest extent possible, be
organized in accordance with this rule and shall comply with
the requirements of Section 376.3071(12), F.S. Requirements
of this rule shall not be retroactively applied to
activities performed or records generated prior to the
effective date of this rule unless dates of applicability
are specified by rule or statute. However, due to the
statutory limitations of allowability and reasonableness on
the use of the Inland Protection Trust Fund pursuant to
Section 376.3071, F.S., records of all activities and
expenses, regardless of date, must be of sufficient detail
to demonstrate the program task or authorized activities to
which they pertain and provide a breakdown of expenses or
comparable documentation so that the Department can assess
the task or activity on a units and rates basis in order to
evaluate the reasonableness of costs.
Specific Authority: 376.303, 376.305, 376.3071, 376.3072,
F.S.
Law Implemented: 376.305, 376.3071, 376.3072, F.S.
History: New 5-3-88, Formerly 17-73.001; Amended: 12-10-89,
6-25-91, 4-22-93.
17-773.200 DEFINITIONS. All words and phrases defined
in Section 376.301, F.S., shall have the same meaning when
used in this chapter unless otherwise set forth in this
section or unless the context clearly indicates otherwise.
The following words and phrases, when used in this chapter,
shall, unless the context clearly indicates otherwise, have
the following meanings:
(1) "Beneficial relationship (interest)" means a
connection or association, excluding an arm's length
contractual relationship, which benefits a person or company
by yielding a profit, advantage or benefit, or entitlement
thereto, exceeding five percent of the person's or company's
annual gross income.
(2) "Capital expense items" means equipment, fixtures,
and other tangible personal property of a non-consumable and
17-773.100(4) - 17-773.200(2)
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non-expen'tah 1 r nature, the value or cost of which is 52,500
or more and t:Me normal evpccted life of which is one year or
more.
(3) "Cleanup", "rehabilitation" or "remedial action"
means those activities integral to meet the requirements of
the Petroleum Contamination Site Cleanup Criteria Rule
(Chapter 17-770, F.A.C.) or, where applicable, to meet the
requirements of a Consent Order entered into between the
site owner, lessee, operator, or the person responsible for
conducting site rehabilitation, and the Department.
(4) "Contamination" or "contaminated" means a discharge
of petroleum or petroleum products into surface waters,
groundwaters or upon the land, in quantities which may
result in a violation of Chapter 17-3, F.A.C., water quality
standards.
(5) "Department" means the Florida Department of
Environmental Regulation.
(6) "Familial relationship (interest)" means a
connection or association by family or relatives, in which a
family member or a relative has a material interest. Family
or relatives include: father, mother, son, daughter,
brother, sister, uncle, aunt, first cousin, nephew, niece,
husband, wife, father-in-law, mother-in-law, son-in-law,
daughter-in-law, brother-in-law, sister-in-law, stepfather,
stepmother, stepson, stepdaughter, stepbrother, stepsister,
half brother, half sister, grandparent, great grandparent,
grandchild, great grandchild, step grandparent, step great
grandparent, step grandchild, step great grandchild, or
f iancee.
(7) "Financial relationship (interest)" means a
connection or association through a material interest or
sources of income which exceed five percent of annual gross
income from a business entity. Banks, lending institutions,
and other lenders that provide loans for site rehabilitation
activities are not considered to have a financial interest
in the site on that basis alone. However, as of the
effective date of this rule, guarantors of loans to or
co-makers of loans with persons signing as responsible party
are considered to have a financial interest if the amount of
the loan exceeds five percent of the net worth of either
company. As used in this definition, sources of income
shall not include any income derived through arm's-lenqth
contractual transactions.
(8) "Fund" means the Inland Protection Trust Fund.
(9) "Incurred" means allowable costs have been paid.
However, for the purpose of reimbursement, where the person
or organization listed as the person responsible for
conducting site rehabilitation on the Certification
17-773.200(2)(cont'd.) - 17-773.200(9)
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Affidavit, Form 17-773.900 (3), F.A.C., does not have a
financial interest in the site, the following costs shall be
considered incurred upon completion of the program task(s)
in accordance with Rule 17-773.500, F.A.C.:
(a) Reasonable rates, including profits associated with
the work performed, claimed for the use of their own
personnel or equipment with documentation pursuant to Rule
17-773.700(7), F.A.C.; and
(b) Allowable markups or handling fees applied to their
paid contractor, subcontractor or vendor invoices pursuant
to Rule 17-773.350 (9), (10), and (11), F.A.C.
(10) "Indirect interest" means an interest in which
legal title is held by another as trustee or other
representative capacity, but the equitable or beneficial
interest is held by the person signing as responsible party.
(11) "Integral" means costs essential to completion of
site rehabilitation.
(12) "Interest costs incurred" means an interest credit
calculated in accordance with Rule 17-773.650 (1), F.A.C.,
to be paid to the person or organization listed as the
person responsible for conducting site rehabi1itation on the
Certification Affidavit, Form 17-773.900 (3), F.A.C., as an
incentive to participate in the Petroleum Cleanup
Reimbursement Program.
(13) "Material interest" means a direct or indirect
interest or ownership of more than five percent of the total
assets or capital stock of any business entity.
(14) "Reimbursement" means payment of money from the
Inland Protection Trust Fund to the person responsible for
conducting site rehabilitation for allowable costs incurred.
(15) "Site" or "petroleum or petroleum product
contamination site" means any contiguous land, surface
water, and groundwater areas upon or into which a discharge
of petroleum or petroleum products has occurred or for which
evidence exists that such a discharge has occurred.
(16) "Sources of income" includes gross income including
all income from whatever source derived, such as gross
income from business, gains from property dealings, interest
earnings, rents, dividends, pensions, and distributive share
of partnership gross income.
(17) "Unencumbered funds" means funds in the Inland
Protection Trust Fund (IPTF) which have not been committed
through unperformed (executory) contracts for ^oods or
services. Applications for reimbursement submitted under
the provisions of this rule do not create an encumbrance of
the IPTF until they have been submitted to the Department of
17-773.200(9)(cont'd.) - 17-773.200(17)
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Banking and Finance tor payment following approval by the
Department of Environmental Regulation.
Specific Authority: 376.303, 376.3071, 376.3072, F.S.
Law Implenented: 376.3071, 376.3072, F.S.
History: New 5-3-88; Amended 10-5-88, formerly 17-73.020;
Amended: 12-10-89, 6-25-91, 4-22-93.
17-773.300 AUDITING. Pursuant to Section
3 76.307 1 (12) (m), F.S., the Department is authorized to
perform financial and technical audits in order to certify
site restoration costs and ensure compliance with Chapter
376, F.S., as well as to seek cost recovery of any
overpayments based on these audits.
(1) Financial audit.
(a) The Department will perform financial audits as
necessary to ensure compliance with this rule and to certify
site rehabilitation costs.
(b) Prior to any financial audit. Department staff
shall give the person responsible for conducting site
rehabilitation reasonable notice of the proposed audit.
(c) Department staff performing the financial audit
shall prepare a written report on each audit and shall
provide a copy of the report by hand delivery or certified
mail to the person responsible for conducting site
rehabilitation. The person responsible for conducting site
rehabilitation shall respond, in writing, to the findings
and recommendations of the report within 30 days of the
certification of receipt. A final determination of the
allowability of questioned costs shall be made by the
department.
(2) Technical audit.
(a) Technical audits may be performed during review of
the complete application to determine if the work performed
was substantially in excess of that necessary to meet the
requirements of Chapter 17-770, F.A.C., any applicable
Consent order or any program tasks approved by the
Department as identified in Rule 17-773.500, F.A.C. If none
of the above is applicable, a technical audit may be
performed to determine if the work performed was
substantially in excess of that necessary to complete a
cost-effective environmental assessment or remedial action
based on sound technical and engineering practices.
(b) Additional technical audits will be performed as
necessary to ensure compliance with applicable rules and to
verify site rehabilitation activities.
(c) Department staff shall prepare a written report on
each technical audit performed and shall provide a copy of
the report by certified mail to the person responsible for
conducting site rehabilitation. The person responsible for
17-773.200(17)(cont'd.) - 17-773.300(2)(c)
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conducting site rehabilitation shall respond, in writing, to
the findings and recommendations of the report within 30
days of the certification of receipt.
(3) All records pertaining to site rehabilitation
activities and costs included in a reimbursement application
shall be maintained for a minimum of five years from the
date of reimbursement. Pursuant to Section
376.3071(12)(m), F.S., any financial or technical audit
shall be commenced within this five year time period,
except in cases where the Department alleges specific facts
indicating fraud.
(4) Recovery of overpayments made to reimbursement
applicants:
(a) The Department shall seek recovery of overpayments
based on the findings of a financial or technical audit for
any one of the following reasons:
1. Fraud in the submission of reimbursement
applications or supporting documentation;
2. Falsification or misrepresentation of data or
information contained in any documentation submitted to the
Department;
3. Mathematical or accounting errors;
4. Undocumented expenses; or
5. Expenditures for petroleum contamination cleanup
activities not conducted in accordance with Chapters 17-770
and 17-775, F.A.C.
(b) In the event the Department determines that any
portion of costs which have been reimbursed are disallowed,
the Department shall give written notice to the person
17-773.300(4)(d)(cont'd.)responsible for conducting site
rehabilitation setting forth with specificity the
allegations of fact which justify the Department's proposed
action and requesting payment of disallowed costs within 60
days of receipt of notification.
(c) In the event payment is not made to the Department
within 60 days, the Department shall seek recovery in a
court of competent jurisdiction to recover reimbursement
overpayments made to the person responsible for conducting
site rehabilitation, unless the Department finds the amount
involved too small or the likelihood of recovery too
uncerta in.
(d) Pursuant to Section 376.3071(12)(m), F.S., the
applicant shall, in addition to the amount of overpayment,
be liable to the Department for interest of 1 percent per
month or the prime rate, whichever is less, on the amount of
overpayment, from the date of overpayment until the
applicant satisfies the Department's request for repayment.
17-773.300(2)(C)(cont'd.) - 17-773.300(4)(d)
04-22-93
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D_ER_ 199 3_ R EIH BURSKMENT_POR_PETROLEDM_<^OMTAM IJiATipN___l_7j^7_7_3
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Interest sli.il I not accrue during the pendency of any
1i t igat ion.
Bpecific Authority: 376.303, 376.3071, 376.3077, F.S.
Law Implemented: 376.3071 , 376.3077., F.S.
History: New 5-3-B8, Formerly 17-73.030, Amended: 6-25-91,
4-22-93.
17-773.350 LIMITATIONS.
(1) Nothing in this chapter shall be construed to
authorise reimbursement for costs incurred for work
performed prior to January 1, 1985.
(2) Nothing in this chapter shall be construed to
authorize reimbursement for costs of site rehabilitation for
a discharge which has not received a Final Order of
eligibility for reimbursement pursuant to Chapter 120, F.S.,
or which has not received authorization for reimbursement
pursuant to Section 376.305(6), F.S.
(3) Nothing in this chapter shall be construed to
authorize reimbursement for litigation costs of any kind
including, but not limited to: litigation costs involving
acguJsition of site access; local, state or federal permit
decisions; any ordinance, rule or regulation; any order
issued pursuant to Chapter 17-770, F.A.C., or any decision
rendered regarding reimbursement pursuant to this chapter.
However, legal fees and costs, other than those associated
with litigation, which are integrally related to site
rehabilitation, shall be reimbursable.
(4) Nothing in this chapter shall be construed to
authorize reimbursement for costs associated with the
f ol lowi ng:
(a) Achieving compliance with the provisions of
Chapters 17-61, 17-761, and 17-762, F.A.C., with the
exception of costs associated with the contamination cleanup
provisions or tank removal and replacement pursuant to Rule
17-773.650(2), F.A.C. Costs associated with such compliance
that shall not be authorized for reimbursement include:
1. Costs for the installation, maintenance, and
monitoring of leak detection and leak prevention systems
such as compliance monitoring wells, automatic leak
detectors, overfill protection devices, cathodic protection
systems, and secondary containment;
2. Costs for investigation of petroleum storage system
integrity such as tank and line tightness testing with the
exception of those outlined In Rule 17-773.650(6), F.A.C.;
and
3. Costs associated with closure assessments, unless
contamination was present and the closure assessment is used
in the completion of program tasks pursuant to Chapter
17-770, F.A.C.
17-773.300(4)(d)(cont'd.) - 17-773.350(4)(a)3.
04-22-93
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DER 1993 REIMBUR8EMBNT FOR PETROLEUM CONTAMINATION 17-773
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(b) Activities related to petroleum storage system
replacement performed after October 1, 1986 if these
activities were not performed by a certified pollutant
storage system speciality contractor in accordance with
Section 489.113, F.S. ;
(c) Activities related to petroleum storage system
removal performed after October 1, 1988 if these activities
were not performed by a certified pollutant storage system
specialty contractor in accordance with Section 489.113,
F.S. ;
(d) Activities related to the removal and replacement
of petroleum storage systems with the exception of those
outlined in Rule 17-77 3.650(2), F.A.C.;
(e) Interest or carrying charges of any kind with the
exception of those outlined in Rule 17-773.650(1), F.A.C.;
(f) Insurance premiums other than site specific
policies or bonds required for site rehabilitation;
(g) Insurance premiums required for participation in
the Florida Petroleum Liability and Restoration Insurance
Program;
(h) Contamination assessments or environmental audits
performed in conjunction with site acquisition where no
contamination is discovered; and
(i) Site rehabilitation costs which are determined to
be not reimbursable as a result of an audit performed
pursuant to Rule 17-773.300, F.A.C.
(5) Nothing in this chapter shall be construed to
authorize reimbursement for costs incurred solely in
cleaning up non-petroleum or non-petroleum product
contamination, including solvents, except as provided by
Section 376.3071(4)(m), F.S., pesticides, and
polychlorinated biphenyls (PCB's) when the level of PCB's
present causes them to be a hazardous waste.
(6) Nothing in this chapter shall be construed to
authorize reimbursement for costs incurred solely in
cleaning up petroleum or petroleum product contamination
which is not related to the storage of those substances.
Pursuant to Section 376.301(17), F.S., oil/water separators
are not considered to be petroleum storage systems unless
they are installed at petroleum product terminals as defined
in Chapter 376, F.S., or at bulk product facilities to
fulfill permit requirements or best management practices for
the control of surface discharge of pollutants.
(7) Nothing in this chapter shall be construed to
authorize reimbursement for costs of site rehabilitation
unless cleanup program tasks are completed in accordance
with Rule 17-773.500, F.A.C., or, where applicable, with a
Consent Order which establishes cleanup procedures and
criteria for the site.
17-773.350(4)(b) - 17-773.350(7)
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(8) Nothing in this chapter shall be construed to
authorize reimbursement for costs associated with thermal
treatment of petroleum contaminated soils if:
(a) The facility performing this thermal treatment is
located in Florida and was not permitted as required by the
Department to thermally treat soil at the time of treatment.
Because of the storage and monitoring requirements of
Chapter 17-775, F.A.C., the date of delivery of contaminated
soil to the facility shall be considered to be the date of
treatment. Florida soil thermal treatment facilities shall
be considered "permitted" and are eligible under the
Petroleum Cleanup Reimbursement Program if:
1. The treatment facility has an air permit under
Chapters 17-210 and 17-296, F.A.C., and a soil thermal
treatment facility permit under Chapter 17-775, F.A.C., or
2. The treatment facility has an air permit under
Chapters 17-210 and 17-296, F.A.C., and an application under
review by the Department for a soil thermal treatment
facility permit under Chapter 17-775, F.A.C.
(b) The person seeking reimbursement for soils
thermally treated at an out-of-state facility lacks written
evidence that the soils were treated and disposed of legally
and in an environmentally safe manner. Evidence which will
be considered sufficient to establish legal and
environmentally safe treatment and disposal includes the
following:
1. Proof that the soils were treated at a facility
complying with soil cleanup standards at least as stringent
as those established in Chapter 17-775, F.A.C., demonstrated
by copies of analytical results from representative post
treatment soil samples taken in accordance with Chapter
17-775; and
2. Documentation of the ultimate disposal of the
treated soil, which may include landfill receipts, sales-
receipts, manifests, or similar documents showing that the
treated soil was properly disposed of or used.
(9) Nothing in this chapter shall be construed to
authorize reimbursement of more than two levels of
contractor markups or handling fees applied to contractor,
subcontractor or vendor invoices.
(10) Nothing in this chapter shall be construed to_
authorize reimbursement of contractor markups or handling
fees in excess of 15 percent for each level of allowable
markup applied to contractor, subcontractor or vendor
invoices.
(11) Nothing in this chapter shall be construed to
authorize reimbursement of contractor markups or handling
fees applied to invoices between any two entities which have
17-773.350(8) - 17-777 3.350(11)
04-22-93
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DER 1993 REIMBURSEMENT FOR PETROLEUM CONTAMINATION 17-773
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a financial, familial, or beneficial relationship with each
other.
(12) Nothing in this chapter shall be construed to
authorize reimbursement of costs incurred for activities
associated with eligibility in any state assistance program,
including application for eligibility, documentation for
eligibility, and verification of eligibility status.
(13) Nothing in this chapter shall be construed to
authorize reimbursement of costs associated with the
preparation of Quality Assurance Project Plans submitted to
the Department on or after November 7, 1990.
(14) Nothing in this chapter shall be construed to
authorize more than one reimbursement application for each
program task for each eligible discharge, with the exception
of the Remedial Action program task.
(15) Nothing in this chapter shall be construed to
authorize amendments to a reimbursement application,
including items inadvertently omitted, after payment for
that application has been made.
(16) Nothing in this chapter shall be construed to
authorize reimbursement for management activities by
professional personnel which exceed 15 percent of the total
personnel time claimed for any program task or portion of
the Remedial Action program task. Management activities
shall include: project management; negotiating contracts
with subcontractors and vendors; scheduling cleanup
activities and personnel assignments; preparing and
monitoring project budget; and general meeting and telephone
time. Professional personnel time for performing these
activities shall be claimed under the management portion of
the Personnel Supplementary Form, 17-773.900(5), F.A.C.
Activities which shall not be considered management include:
technical review of subordinate work product by supervisors;
on-site supervision of field activities being performed by
subordinate or subcontracted personnel; and meeting and
telephone time when the nature of the meeting or telephone
conversation is specified and integral to an authorized
non-management activity.
Specific Authority: 376.303, 376.3071, 376.3072, F.S.
Law Implemented: 376.301, 376.3071, 376.3072, F.S.
Hi9tory: New 5-3-88, formerly 17-73.040; Amended: 12-10-89,
6-25-91, 12-31-91, 4-22-93.
17-773.400 COST AND COMPLETION SCHEDULE E8TIMATE.
(1) The cost and completion schedule estimates provided
shall be used by the Department to support budget
allocations from the Inland Protection Trust Fund and to
obligate funds for purposes of establishing the rate of tax
under Section 206.9935(3), F.S.
17-773.350(11)(cont'd.) - 17-773.400(1)
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(2) After receipt of the Department's Final Order
stating th.it a site is eligible for reimbursement, the
person responsible for conducting site rehabilitation shall
provide to the Department estimates of costs and completion
schedules for each site rehabilitation program task
anticipated to be completed by the person responsible for
conducting site rehabilitation for that site. These
estimates shall be provided on the Cleanup Cost and
Completion Schedule Estimate Form adopted in Rule
17-773.900(1), F.A.C.
(3) The person responsible for conducting site
rehabilitation shall clearly indicate on this form which
program task(s) are to be completed by the Department in
lieu of reimbursement. No program task can be assigned to
state conducted cleanup without this notification. Any
change in program task responsibility subsequent to the
initial submittal of the Cleanup Cost and Completion
Schedule Estimate Form must be established by submittal of
an amended form.
(4) The person responsible for conducting site
rehabilitation may amend the cleanup cost and completion
schedule estimate no more freguently than once per quarter.
Specific Authority: 376.303, 376.3071, 376.3072, F.S.
Law Implemented: 376.3071, 376.3072,F.S.
History: New 5-3-88; Amended 10-5-88, formerly 17-73.050;
Amended: 12-10-89, 6-25-91, 4-22-93.
17-773.500 PROGRAM TASKS.
(1) For sites at which a Consent Order for site
rehabilitation is in effect, or where site rehabilitation
program tasks were completed without such a Consent Order
prior to the effective date of Chapter 17-70, F.A.C.,
November 1, 1987, the following shall be program tasks:
(a) Initial Remedial Action (IRA):
1. This task shall include any action, including
initial investigation and assessment, necessary to:
a. recover free product without depressing the ground
water table;
b. remove and treat or dispose of excessively
contaminated soil as defined in Rule 17-770, F.A.C., from
above the ground water table; or
c. abate an imminent hazard.
2. Unless approved in writing by the Department as an
Alternate Initial Remedial Action Procedure pursuant to Rule
17-770.890, F.A.C., this program task shall not include any
activities associated with:
a. petroleum storage system removal performed prior to
July 1, 1992 if not integral to the Initial Remedial Action;
17-773.400(2) - 17-773.500(1)(a)2.a.
04-22-93
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b. petroleum storage system removal performed prior to
July 1, 1992 if a replacement petroleum storage system is
Installed at the site;
c. petroleum storage system removal if performed on or
after July 1, 1992;
d. petroleum storage system replacement;
e. ground water analysis;
f. ground water treatment including dewatering of the
tank excavation; or
g. bioremediation, vacuum extraction, excavation of
greater than 1500 cubic yards of 6oil or other remedial
action not included in Subparagraph (l)(a)l. above.
3. This program task shall not include any activities
that occur after a Remedial Action Plan is approved by the
Department;
4. This program task shall be deemed complete upon
submittal of an IRA report including a detailed summary and
technical documentation which demonstrates, using
representative sample data, that the criteria for Initial
Remedial Actions outlined in Chapter 17-770, F.A.C., have
been met.
(b) Contamination Assessment (CA): This task shall
include any action necessary to complete a Preliminary
Contamination Assessment Plan, Quality Assurance rroject
Plan, Preliminary Contamination Assessment Report,
Contamination Assessment Plan, or Contamination Assessment
Report. This program task shall be deemed complete upon
approval of the Contamination Assessment Report (CAR) by the
Department.
(c) Remedial Action Plan (RAP): This task shall
include any action necessary to complete a Remedial Action
Plan. This program task shall be deemed complete upon
approval of the Remedial Action Plan by the Department.
(d) Remedial Action (RA): This task shall include free
product recovery and treatment of contaminated soil not
undertaken in the Initial Remedial Action task, ground water
treatment, and any other actions which are integral to site
rehabilitation.
1. This program task shall be deemed complete when the
Department concurs, in writing, that appropriate cleanup
levels have been met. The first request for reimbursement
of Remedial Action costs may be made at any time after
Remedial Action Plan approval, or, if no Consent Order has
been entered, at any time after commencement of remedial
action.
2. Subsequent reimbursement applications may be
submitted annually or semi-annually on the anniversary date
of receipt of the first complete Remedial Action
reimbursement application.
17-773.500(1)(a)2.b. - 17-773.500(1)(d)2.
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3. All Remedial Action program task activities must be
documented prior to reimbursement of associated expenses.
Quarterly, semi-annual and annual remedial action status
reports shall be reimbursable in the Remedial Action program
task. If adequate documentation of Remedial Action program
task activities has not been submitted to the Department's
Bureau of Waste Cleanup in Tallahassee for the time periods
being claimed for reimbursement, the Department shall
require additional documentation which may include the
following:
a. detailed summary of all RA activities performed
during the application time period;
b. specific date when recovery or treatment equipment
was installed and the date it commenced operation;
c. length of time, with dates, recovery system
operated and whether the system is currently operating;
d. details, with dates, of any equipment failure or
down time and description of specific equipment components
which may have been replaced or repaired; and
e summary, with dates, of all monitoring, sampling,
and maintenance site visits including the number and title
of employees used and the number and types of samples and
analyses.
4. Pursuant to Rule 17-770.730(2), F.A.C., record
("as-built") drawings of the approved remedial action system
must be submitted to the Department. Any system details
which differ from the approved RAP should be shown in
"red-line" on the record drawings. This information must be
submitted prior to reimbursement of remedial action system
expenses, but is not required to be resubmitted with each RA
status report.
(2) For sites at which Chapter 17-770, F.A.C., controls
site rehabilitation, the following shall be program tasks:
(a) Initial Remedial Action(IRA):
1. This task shall include any action, including
initial investigation and assessment, necessary to:
a. recover free product without depressing the ground
water tabic;
b. remove and treat or dispose of excessively
contaminated soil from above the ground water table; or
c. abate an imminent hazard.
2. Unless approved by the Department in writing as an
Alternate Initial Remedial Action Procedure pursuant to Rule
17-770.890, F.A.C., this program task shall not include any
activities associated with:
a. petroleum storage system removal performed prior to
July 1, 1992 if not integral to the Initial Remedial Action;
b. petroleum storage system removal performed prior to
July 1, 1992 if a replacement petroleum storage system is
installed at the site;
17-773.500(1)(d)3. - 17-773.500(2)(a)2.b.
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04-22-93
PER 1993 REIMBURSEMENT FOR PETROLEUM CONTAMINATION 17-773
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c. petroleum storage system removal performed on or
after July 1, 1992;
d. petroleum storage system replacement;
e. ground water analysis;
f. ground water treatment including dewatering of the
tank excavation; or
g. bioremediation, vacuum extraction, excavation of
more than 1500 cubic yards of soil or other remedial action
not included in Subparagraph (2)(a)l. above.
3. This program task shall not include any activities
that occur after a Remedial Action Plan is approved by the
Department;
4. This program task shall be deemed complete upon
submittal of an IRA report including a detailed summary and
technical documentation which demonstrates, using
representative sample data, that the criteria for Initial
Remedial Actions outlined in Chapter 17-770, F.A.C., have
been met.
(b) Contamination Assessment (CA): This task shall
include any action necessary to complete a site specific
Quality Assurance Project Plan if submitted to the
Department prior, to November 7, 1990, Contamination
Assessment, or a Contamination Assessment Report in
accordance with Chapter 17-770, F.A.C. This program task
shall be deemed complete upon issuance of written approval
of the Contamination Assessment Report (CAR) by the
Department.
(c) Remedial Action Plan (RAP): This task shall
include any action necessary to complete a No Further Action
Proposal, Monitoring Only Proposal, Monitoring Plan, Risk
Assessment or Remedial Action Plan in accordance with
Chapter 17-770, F.A.C. This program task shall be deemed
complete upon issuance of an approval order in accordance
with Chapter 17-770, F.A.C. At any site where the
Department has approved a "No Further Action" proposal or
Site Rehabilitation Completion Report, this program task
shall end with the Site Rehabilitation Completion Order.
(d) Remedial Action (RA): This task shall include free
product recovery and treatment of contaminated soil not
undertaken in the Initial Remedial Action task, ground water
treatment, and any other actions integral to site
rehabilitation as described in Chapter 17-770, F.A.C., and
as set forth in the approved Remedial Action Plan. This
program task shall be deemed complete upon issuance of a
Site Rehabilitation Completion Order in accordance with
Chapter 17-770, F.A.C.
1. The first request for reimbursement of Remedial
Action costs may be made at any time after Remedial Action
Plan approval.
17-773.500(2)(a)2.c. - 17-773.500(2)(d)1.
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2. Subsequent reimbursement applications may bo
submitted annually or snmi-annually on the anniversary date
of receipt or the first complete Remedial Action
reimbursement application.
3. All Remedial Action program task activities must be
documented prior to reimbursement of associated expenses.
Quarterly, semi-annual, and annual remedial action status
reports shall be reimbursable in the Remedial Action program
task. If adequate documentation of Remedial Action program
task activities has not been submitted to the Department's
Bureau of Waste Cleanup in Tallahassee for the time periods
beincj claimed for reimbursement, the Department shall
require additional documentation which may include the
followi nq:
a. detailed summary of all RA activities performed
during the application time period;
b. specific date when recovery or treatment equipment
was installed and the date it commenced operation;
c. length of time, with dates, recovery system
operated and whether the system is currently operating;
d. details, with dates, of any equipment failure or
down time and description of specific equipment components
which may have been replaced or repaired; and
e. summary, with dates, of all monitoring, sampling,
and maintenance site visits including the number and title
of employees used and the number and types of samples and
analyses.
4. Pursuant to Rule 17-770.730(2), F.A.C., record
("as-built") drawings of the approved remedial action system
must be submitted to the Department. Any system details
which differ from the approved RAP should be shown in
"red-line" on the record drawings. This information must be
submitted prior to reimbursement of remedial action system
expenses, but is not required to be resubmitted with each RA
status report.
Specific Authority! 376.303, 376.3071, 376.3072, F.S.
Law Implemented: 376.3071, 376.3072, F.S.
History: New 5-3-88; Amended 10-5-88, Formerly 17-73.060;
Amended: 12-10-89, 6-25-91, 4-22-93.
17-773.600 REIMBURSEMENT OF CAPITAL EXPENSE ITEMS.
(1) Reimbursement of all purchased capital expense
items, including those acquired through a lease to purchase
agreement, shall be prorated based on a normal expected life
of 30 months and the documented length of time the item was
used for purposes eligible for reimbursement, but shall not
include any use allowed in previous reimbursement
applications.
17-773.500(2)(d)2 - 17-773.600(1)
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(a) The number of months of allowable use shall be
those calendar months in which the capital expense item was
actually used, including the first and last months. If the
item was inoperable for one month or longer, this down time
shall be deducted from the total number of months allowed
unless such item is on "standby" during approved
post-treatment monitoring pursuant to Rule 17-770.660,
F.A.C., or in accordance with an approved alternate
procedure pursuant to Rule 17-770.890, F.A.C., which
demonstrates the technical justification for system down
time. The proration time period for any individual
application shall not extend beyond the latest date of
remedial action related activities in the supporting
invoices.
(b) If the capital expense item is initially leased and
subsequently purchased or replaced with an equivalent
purchased item to continue the same function, the applicant
cannot receive reimbursement for the lease costs and the
prorated purchase price of the item. However, the number of
months of allowable use of the purchased item, as reimbursed
on a prorated basis, shall be extended by the number of
months the item was initially leased.
(c) Requests for reimbursement of purchased capital
expense items shall be based on a proration, calculated by
the applicant, of the actual purchase price, including
applicable markups and sales tax, using Form 17-773.900(6),
F.A.C. Notwithstanding the provisions of Sections
17-773.100(5) and .700(12), proration of capital expense
item costs, regardless of the dates of use, shall be based
on the normal expected life established by Section
17-773.600, F.A.C., of the Reimbursement for Petroleum
Contamination Site Cleanup Rule in effect on the date of
submittal of the reimbursement application in which these
costs are claimed.
(d) The following information shall be provided on Form
17-773.900(6), F.A.C., for all purchased capital expense
items:
1. The starting and ending months of actual item use
claimed for the period;
2. The number of months of actual item use claimed for
the period;
3. The original purchase price; and
4. The serial number of each capital expense item.
(e) Once the full purchase price of a capital expense
item has been reimbursed for cumulative use at one or more
sites, the cost for that item shall not be claimed in any
17-773.600(1)(a) - 17-773.600(1)(e)
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subsequent reimbursement application. However, to encourage
reuse of capital expense items which have already been
reimbursed in full, documented costs, not to exceed 25
percent of the original purchase price, incurred for
retrofit, refurbishment or modification, shall be
reimbursable without proration in the first Remedial Action
program task application. Additional documented costs,
above the first 25 percent but not to exceed a total of 50
percent of the original purchase price, for retrofit,
refurbishment or modification, shall be prorated based on a
useful life of 30 months. This reuse incentive is authorized
subject to the following conditions:
1. A listing of the previous site(s), with DER
facility number, at which the capital expense item was
previously used and reimbursed in full;
2. The serial number of each capital expense item;
3. An invoice documenting the original purchase price
of the capital expense item; and
4. A detailed invoice from the manufacturer or
authorized service representative with a description of the
refurbishment/retrofit services provided.
(2) Reimbursement of all leased capital expense items
shall be limited to the lease rate multiplied by the length
of time the item was used. However, this amount shall not
exceed the purchase price of these items unless operation,
maintenance or other service agreements are included in the
lease rate and their costs are identified in the application
and lease agreement with a breakdown of units and rates for
services received.
(a) If cumulative lease costs of $1,000 or more are
incurred, the purchase price of the leased capital expense
items and a copy of the lease agreement shall be provided
with the reimbursement application.
(b) Reimbursement of capital expense equipment lease
rates, exclusive of supplemental service agreements, shall
not exceed 1/18 of the purchase price per month for items
used greater than six months duration and 1/12 of the
purchase price per month for items used for six months or
less. Nothing herein shall be construed to require equal
monthly lease rates for items used for longer than 18
months.
(c) Documentation of the purchase price of leased
capital expense items shall be in the form of standard price
schedules direct from the manufacturer or authorized
d istr ibutor.
(d) A person responsible for conducting site
rehabilitation who docs not have a beneficial, financial, or
familial interest in the site may manufacture or may
17-773.600(1)(e)(cont'd.) - 17-773.600(2)(d)
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purchase capital expense items from a manufacturer or vendor
and lease this equipment to the site. Subject to the
limitations in Rule 17-773.350(9). (10), and (11), a markup
may be applied to the purchase price prior to the
determination of a lease rate. The reimbursement
application must include the purchase invoice and
documentation showing how the lease rate was calculated.
When the person responsible for conducting site
rehabilitation manufactures the equipment, documentation of
the value of the equipment, such as a standard price
schedule, must also be submitted. If the person responsible
for conducting site rehabilitation manufactured the
equipment, or a markup is otherwise prohibited under Rule
17-773.350(9), (10), or (11), no markup of the equipment
shall be allowed.
(3) In the event a purchased capital expense item fails
during its normal expected life, the Department will, upon a
demonstration that the item has no further useful life,
reimburse the remaining unpaid balance of the item minus any
salvage value provided such failure was not the result of
abuse, misuse, neglect, or improper maintenance. Such
payment shall be made on the next scheduled reimbursement
date.
(a) When the actual cost of a particular component of a
capital expense item which fails cannot be established
because it was part of the originally purchased system, the
cost of the replacement component shall be used as the
original cost of the component which failed.
(b) The salvage value, if any, shall be established by
written estimate from the manufacturer or authorized
representative.
Specific Authority: 376.303, 376.3071, 376.3072, F.S.
Law Implemented: 376.3071, 376.3072, F.S.
History: New 5-3-88; Amended 10-5-88, formerly 17-73.070;
Amended: 12-10-89, 6-25-91, 4-22-93.
17-773.650 REIMBURSEMENT INCENTIVES. It is the intent
of the Florida Legislature and the Department that as many
sites as possible be cleaned up by responsible parties
through the Petroleum Cleanup Reimbursement Program. To
that end, the following incentives have been authorized to
encourage participation in the Petroleum Cleanup
Reimbursement Program.
(1) Reimbursement of interest costs in the form of an
interest credit added to the allowable amount of select
reimbursement applications is authorized by Section
376.3071(12), F.S. There are three distinct groups of
17-773.600(2)(d)(cont'd.) - 17-773.650(1)
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applications which may be eligible to receive an interest
credit and two methods of calculating interest.
(a) The first group includes applications received from
June 25, 1901 through December 29, 1991. Payment of
interest costs incurred for the allowable cost of site
rehabilitation is authorized for program tasks initiated on
or after July 1, 1990, the effective date of statutory
authorization for the Interest Incentive Program, pursuant
to Section 376.3071 (12), F.S. However, where the Remedial
Action program task was initiated prior to July I, 1990,
interest shall be paid for the allowable cost of Remedial
Action program task activities which occurred during
individual years or allowable portions thereof that began
on or after July 1, 1990. Payment of interest for this
group of applications shall be subject to the following:
1. Interest shall be calculated at the prime rate on
the date of receipt of the reimbursement application;
2. The interest rate shall not exceed one percent per
month;
3. To receive payment for interest each applicant must
indicate their decision to participate in the interest
option outlined in this section by providing the amount
claimed and the date of initiation of activities for each
program task included in the application on Form 17-773.900
(14), F.A.C.;
4. Accrual time limitations for interest calculation
are as follows:
a. The interest calculated for the Initial Remedial
Action program task shall be limited to either six months
accrual or the difference in months between initiation of
field activities for the task and the estimated
reimbursement application payment date, whichever is less;
b. The interest calculated for the Contamination
Assessment program task shall be limited to either 12 months
accrual or the difference in months between initiation of
field activities for this task and the estimated
reimbursement application payment date, whichever is less;
c. The Interest calculated for the Remedial Action
Plan program task shall be limited to either eight months
accrual or the difference in months between the
Contamination Assessment Report approval date and the
estimated reimbursement application payment date, whichever
is less;
d. The interest calculation for the Remedial Action
program task shall be based on each reimbursement
application paid. The interest accrual period shall
commence on the first date of approved activity following
written approval of the Remedial Action Plan or its
17-773.650(1)(cont'd.) - 17-773.650(1)(a)4.d.
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equivalent and shall not exceed the period of actual
remedial action included in the application plus 180 days
processing time; and
e. The interest accrual periods and costs claimed for
the Remedial Action program task must be broken down into
individual years, or allowable portions thereof, on the
Interest Incentive Option Form, Rule 17-773.900(14), F.A.C.,
to facilitate the calculation of Interest payments. Failure
to provide this breakdown in applications for remedial
action will result in a maximum interest accrual period of
one year, or the allowable portion thereof, plus 180 days
processing time for all Remedial Action program task costs
claimed therein;
5. The Department shall calculate the amount of
reimbursement for interest based on the total amount allowed
for reimbursement for each program task and the number of
allowable months of Interest accrual for each task as
described in Rule 17-77 3 . 650(1)(a) 4., F.A.C.; and
6. Any interest for costs initially denied
reimbursement and subsequently approved for payment shall be
calculated in accordance with Rules 17-773.650(1)(a) 4. and
5., F.A.C.
(b) The second group includes applications received on
or after December 30, 1991. The provisions of the interest
incentive program established in this subsection shall
expire on July 1, 1993. Payment of interest costs incurred
for the allowable cost of site rehabilitation is authorized
for program tasks initiated from July 1, 1990 through June
30, 1992 and shall be calculated in accordance with Rule
17-773.650(1)(a), F.A.C., above provided:
1. The initial letter of intent to apply for
reimbursement was submitted to the Department between
October 19, 1990 and September 27, 1991 for sites which
were declared eligible for state conducted cleanup or
reimbursement pursuant to Sections 376.305(7), 376.3071(9)
or 376.3072(2), F.S., prior to September 27, 1991; however,
where the site would otherwise be eligible for state
conducted cleanup and where the owner or operator certifies
to the Department that it qualifies as a small business
under Section 288.703(1), F.S., the letter of intent may be
submitted after September 27, 1991;
2. The person responsible for conducting site
rehabilitation has either commenced site restoration
activities or entered into written contractual obligation
for such restoration between October 19, 1990 and September
27, 1991 inclusive; and
3. The person responsible for conducting site
rehabilitation completes site restoration.
17-773.650(1)(«)4.d.(cont'd.) - 17-77 3.650(1)(b)3.
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(c) The third group includes applications received
after August 14, 1992. This interest credit shall be
calculated automatically by the Department. A request by
the reimbursement applicant shall not be required. Payment
of interest on the allowable amount of reimbursement
applications in this group shall be calculated at a rate of
one percent per month or the prime rate on the submittal
date, whichever is less, from the 61st day following receipt
until the application is paid provided:
1. The Department determines the application to be
sufficient. If an application, as originally submitted, is
determined to be insufficient, interest shall be paid
commencing on the date application is made sufficient until
the application is paid; and
2. The amount of unencumbered funds in the Inland
Protection Trust Fund is at or above $J0 million. Interest
will not be paid if the tax for inland protection is at its
highest level and the unencumbered balance of the Inland
Protection Trust Fund is below $10 million for two
consecutive months. If payment of interest is suspended on
new applications due to insufficient funds, it shall resume
for newly submitted applications when the amount of
unencumbered funds exceeds $10 million for two consecutive
months. The Department shall publish notice of change in
the status of the interest eligibility for applications in
this group in the Florida Administrative Weekly. Interest
shall not be paid on new applications received more than 30
days after the date of publication of notice that interest
is unavailable. Interest payments shall resume for new
applications received after the date of publication of
notice that interest is again available. Interest
eligibility for this group is based on the noticed status of
the Inland Protection Trust Fund at the time of
reimbursement application submittal and shall not be
affected by subsequent changes in the status of the Inland
Protection Trust Fund.
(2) Reimbursement for activities related to the removal
and replacement of petroleum storage systems, exclusive of
any hardware, pursuant to Section 376. 3071 (4 ) (j ) , F.S., is
authorized as follows:
(a) For storage system removal performed prior to July
1, 1992:
1. with the exception of storage system removal that
is integral to Initial Remedial Action, when a replacement
storage system is not installed at a site, these costs shall
only be reimbursable as part of the Remedial Action program
task following approval of a Remedial Action Plan or its
equivalent pursuant to Rules 17-773.100(3), 17-773.350(4),
and 17-773.500 (1] and (2), F.A.C.;
17-773.650(1)(c) - 17-773.650(2)(a)l.
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2. Based on data from representative samples taken in
accordance with Chapter 17-770, F.A.C., available at or
subsequent to the time the petroleum storage system was
removed, the system must have been a potential source of the
contamination and some part of the system must have
overlapped some portion of the eligible contaminated soil or
contaminant plume; and
3. If the costs of removal and replacement of one
storage system are eligible for reimbursement pursuant to
subsection (2)(a)2. of this section, then the costs of
removal and replacement of all petroleum storage systems in
the same tank bed shall also be reimbursable. Reimbursement
shall be limited to removal and the cost for replacement in
the same location. Additional costs incurred for relocation
or facility renovations shall not be reimbursable but shall
be documented.
(b) For storage system removal performed on or after
July 1, 1992:
1. The removal activities must be justified in an
approved Remedial Action Plan as necessary for achieving the
cleanup criteria set forth in Chapter 17-770, F.A.C.;
2. These costs shall only be reimbursable as part of
the Remedial Action program task following RAP approval; and
3. Reimbursement shall be limited to removal and the
cost for replacement in the same location. Additional costs
incurred for relocation or facility renovations shall not be
reimbursable but shall be documented.
(3) Reimbursement on a semi-annual basis for Remedial
Action program task costs is authorized.
(4) Reimbursement for Certified Public Accountant (CPA)
fees charged for the review of the reimbursement application
and preparation of the CPA report required pursuant to Rule
17-773.700(10), F.A.C., is authorized. Only the actual and
reasonable fee paid to the CPA is reimbursable. Ko markup
shall be allowed.
(5) Reimbursement for application package preparation
costs is authorized. When reimbursement application
packages are prepared in accordance with Rule 17-773.700,
F.A.C., and complete documentation of the number of hours,
the personnel rate, and the type of personnel utilized for
this preparation are included in the application
supplementary forms and supporting invoices, actual and
reasonable costs incurred for this preparation shall be
allowed. Only the actual and reasonable fee paid for
application preparation is reimbursable. No markup shall be
allowed.
17-773.650(2)(a)2. - 17-7 73.650(5)
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(6) Reimbursement for costs associated with
investigation of petroleum storage system integrity when
performed in response to evidence of a discharge during any
program task is authorized. However, these cost6 shall only
be reimbursable when included in an application for the
Remedial Action program task following approval of a
Remedial Action Plan or its equivalent pursuant to Rules
17-773.500(1) and (2), F.A.C.
Spaclfic Authority: 376.303, 376.3071, 376.3072, F.S.
Lav Implemented: 376.3071, 376.3072, F.S.
History: New 6-25-91, Amended 12-31-91, 4-22-93.
17-773.700 APPLICATION FOR REIMBURSEMENT. Upon
completion of one or more program tasks at sites with an
eligible discharge, the person responsible for conducting
site rehabilitation may apply for reimbursement of allowable
costs actually incurred in conducting site rehabilitation.
Pursuant to Section 376.3071(12), F.S., payment shall be
made in the order in which the Department receives completed
applications provided sufficient information has been
provided to determine the allowability and reasonableness of
all costs claimed.
(1) An original reimbursement application with invoices
and two copies of the reimbursement application without
invoices must be provided and completed in ink or
typewritten, and shall include:
(a) The Program Task and Site Identification Form, Rule
17-773.900(2), F.A.C.;
(b) The Application Summary Sheets, Form 17-773.900(4),
F.A.C.;
(c) Applicable Supplementary Forms, Rule 17-773.900(5)
throvigh (13), F.A.C., with line item reference to individual
supporting invoice numbers;
(d) Legible copies of all contractor, subcontractor,
and vendor invoices with descriptions of activities and
breakdown of expenses into units and rates pursuant to Rule
17-773.700(2), F.A.C.;
(e) The notarized Certification Affidavit, Form
17-773.900(3), F.A.C., completed by the current site owner
or operator and the person responsible for conducting site
rehabilitation pursuant to Rule 17-773.700(8), F.A.C.;
(f) The Certified Public Accountant (CPA) Report with
reference to the specific site, program task(s), and
application Grand Total pursuant to Rule 17-773.700(10),
F.A.C.;
(g) The Interest Option Incentive Form, Rule
17-773.900(14), F.A.C., if applicable, pursuant to Rule
17-773.650(1), F.A.C.;
17-773.650(6) - 17-773.700(1)(g)
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(h) Any records documenting the sale of soil or
recovered product; and
(i) Copies of any lease and service agreements for
leased capital expense items pursuant to Rule 17-773.600,
F.A.C.
(2) To facilitate evaluation of expenses for
allowability and reasonableness prior to reimbursement,
supporting Invoices must provide the following information:
(a) Name and address of the site;
(b) Billing date;
(c) Dates and detailed descriptions for each activity
including those performed by subcontractors and vendors.
For each activity a breakdown of individual personnel and
hours worked shall be provided.
(d) All expenses should be broken down into units and
rates for personnel, equipment, and supplies. Lump sum
expenses shall not be acceptable unless the lump sum cost
buildup is documented and provided. All expense items
should be clearly identified. A trade name or model number
is Insufficient;
(e) All expenses for subcontractors or vendors outside
of the general contractor must be identified as such on the
invoice and the subcontractor or vendor invoices attached to
the contractor invoice in which these expenses were billed.
Markups or handling fees on these subcontractor or vendor
invoices shall be clearly identified; and
(f) Discounts for any reason shall be identified on the
supporting invoice and the invoice shall reflect the actual
amount paid.
(3) Supplemental information may be submitted to the
Department and shall be considered during review of the
reimbursement application provided the reimbursement order
has not been issued. If the applicant does not revise the
application, submittal of supplemental information shall not
affect the order in which the application is reviewed and
paid. If the applicant revises the application forms or the
expenses claimed for reimbursement, the order in which the
application is reviewed and paid shall be based on the date
of submittal of the revisions. Supplemental information
associated with supporting invoices shall be prepared in
such a format that it becomes a part of the invoice and
clearly ties into the costs to which it pertains.
(4) All revised applications must be accompanied by a
revised Certification Affidavit and CPA Report.
(5) Costs claimed in a reimbursement application for
the employees, equipment or materials of the site owner,
site operator or any entity which has a financial interest
in the site or a familial or other beneficial relationship
17-773.700(1)(h) - 17-773.700(5)
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with the site owner or operator shall be considered to Be
in-house and reimbursement shall be limited to actual costs
only. No fee, markup, commission, percentage or other
consideration shall be allowed. The following
documentation shall be provided for in-house expenses:
(a) Personnel - detailed original documentation which
confirms the specific dates, times, and location that each
employee worked as well as a description of each task
performed. In addition, include documentation of each
employee's salary at the time the work was performed, such
as a W-2 form or payroll register. A multiplier of 2.0
applied to the actual employee salary shall be the maximum
allowable for total in-house personnel costs including
fringe benefits, overhead, and indirect costs. If the
amount claimed is less than the maximum allowed, only the
amount claimed shall be reimbursed;
(b) Equipment - a description of each piece of
equipment claimed, its specific function and original
documentation which confirms the specific dates, times, and
location where this equipment was used for site
rehabilitation. In addition, documentation of the cost or
value of each piece of equipment must be provided, such as
an invoice or a copy of the depreciation schedule used for
tax purposes. Reimbursement of in-house equipment usage
shall be limited to a prorated percentage of the purchase
price or value based on a 30 month useful life plus a
reasonable operating cost without profit; and
(c) Materials and utilities - reimbursement of in-house
material usage or utilities shall be limited to actual cost
and documented with copies of invoices. Payments to a site
owner or operator for use of electricity or other utilities
at a site shall not be reimbursed without documentation
which demonstrates the actual cost.
(6) For in-house activities which occurred prior to
July 1, .1986, a sworn affidavit shall be accepted in lieu of
original documentation. However, detailed descriptions for
each daily activity must be included to confirm that it was
integral to the program task claimed.
(7) Pursuant to Bule 17-773.200(9), F.A.C., reasonable
rates, including profits, may be claimed for the personnel
and equipment or other allowable expenses of the person
responsible for conducting site rehabilitation as well as
allowable markups on paid contractor, subcontractor, and
vendor invoices and shall be considered incurred for the
purpose of reimbursement provided:
(a) The person responsible for conducting site
rehabilitation does not have a financial interest in the
site pursuant to Rule 17-773.200(7), F.A.C., or a familial
17-773.700(5)(cont'd.) - 17-773.700(7)(a)
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or other beneficial relationship with the site owner or
operator;
(b) The activities performed were integral to the
program task claimed pursuant to Rule 17-773.500, F.A.C.;
and
(c) Detailed invoices are provided by the person
responsible for conducting site rehabilitation that include
all subcontractor and vendor invoices and that meet the
requirements for site identification, activity descriptions
and unit rate breakdown provided in Rule 17-773.700(2),
F.A.C. These invoices must identify the person responsible
for conducting site rehabilitation and clearly distinguish
their costs from those for paid subcontractors or vendors.
(8) The Certification Affidavit, Form 17-773.900(3),
F.A.C., must be signed by the current site owner or operator
and the person responsible for conducting site
rehabilitation after the program task and reimbursement
application preparation have been completed.
(a) The current site owner or operator must sign the
applicable portion of the Certification Affidavit. A former
site owner or operator shall not sign as owner or operator
even if they remain the person responsible for conducting
site rehabilitation.
(b) The reimbursement warrant shall be issued to the
person responsible for conducting site rehabilitation listed
on the Certification Affidavit.
(c) If the bills for site rehabilitation were paid by a
company, as opposed to an individual person, the company's
name should appear as the person responsible for conducting
site rehabilitation with a representative of that company
signing the affidavit.
(d) The person responsible for conducting site
rehabilitation must include their Federal Employer
Identification Number (FEID /) on the Certification
Affidavit if they have one. If they do not have an FEID /,
their personal social security number must be provided.
(e) At least one copy of the Certification Affidavit
must have original signatures and notary seal.
(9) Wherever a financial, familial or other beneficial
relationship exists among the site owner or operator, the
person responsible for conducting site rehabilitation, and
any of the vendors or contractors hired to conduct site
rehabilitation, full and fair disclosure shall be made to
the Department by indication in the designated section of
the Program Task and Site Identification Form,
17-773.900(2), F.A.C., and appended explanation. When
either of the above parties is a corporation, partnership or
other type of business organization, such disclosure
17-773.700(7)(a)(cont'd.) - 17-773.700(9)
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04-22-93
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PER 1993 REIMBURSEMENT FOR PETROLEUM CONTAMINATION 17-773
SITE CLEANUP
requirement shall include officers, directors, partners and
trustees of such business ontity.
(10) All applications must be examined by an independent
Certified Public Accountant (CPA) holding an active Florida
license in accordance with Sections 473.308 and 473.314,
F.S., and such examinations made in accordance with the
Attestation Standards established by the American Institute
of Certified Public Accountants. A copy of the CPA's
report must be appended to the reimbursement application.
In this report, the CPA shall Include:
(a) Complete site identification including the name,
address, and the Department's facility identification
number;
(b) The specific program task(s) for which this
application was prepared;
(c) The application Grand Total including the CPA fee;
and
(d) An opinion verifying that:
1. Adequate supporting documentation is included in
the reimbursement application package;
2. Costs are accurately itemized in the reimbursement
application package; and
3. All costs claimed in the reimbursement application
have actually been incurred, as required by Rules
17-773.200(9) and 17-77 3.700(7), F.A.C.
4. All second tier invoices in excess of $1,000 from
subcontractors and vendors have been paid.
(11) Pursuant to Rules 17-77 3.350(14) and (15), F.A.C.,
only one reimbursement application shall be submitted per
program task with the exception of the Remedial Action
program task. Amendments to a reimbursement application,
including items which were inadvertently omitted, shall not
be accepted by the Department after payment for that
application has been made. No overlap of activities from
one program task to the next shall be allowed. Incremental
time periods claimed in Remedial Action program task
applications shall be established by the dates of remedial
action related activities included in supporting invoices.
Subsequent Remedial Action program task applications shall
not include activities performed during previously claimed
time periods.
(12) Review and approval of reimbursement applications
shall be based upon the statutes, rules and written
guidelines governing petroleum contamination site cleanup
and reimbursement which were in effect at the time the work
was performed or the records of activities and expenses were
generated, as applicable. Records relating to site
rehabilitation which were generated prior to the effective
date of specific requirements in a statute, rule or written
17-773.700(9)(cont'd.) - 17-77 3.700(12)
04-22-93
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PER 1993 REIMBURSEMENT FOR PETROLEUM CONTAMINATION 17-773
SITE CLEANUP
guidelines shall, to the greatest extent possible, be
organized in accordance with this rule and shall comply with
the requirements of Section 376.3071(12), F.S. Requirements
of this rule shall not be retroactively applied to
activities performed or records generated prior to the
effective date of this rule unless dates of applicability
are specified by rule or statute. However, due to the
statutory limitations of allowability and reasonableness on
the use of the Inland Protection Trust Fund pursuant to
Section 376.3071, F.S., records of all activities and
expenses, regardless of date, must be of sufficient detail
to demonstrate the program task or authorized activity to
which they pertain and provide a breakdown of expenses or
comparable documentation so that the Department can assess
the task or activity on a units and rates basis in order to
evaluate the reasonableness of costs.
(13) Copies of any records submitted will be accepted
provided the original records are maintained for a period of
at lea6t five years from the date of reimbursement for the
application and provided these records are made available
upon request by the Department.
(14) If a reimbursement application is the final
application to be submitted to the Department for an
eligible discharge at a site, the applicant shall notify the
Department by indication in the designated section of the
Program Task and Site Identification Form, 17-773.900(2),
F.A.C. Final applications should not be submitted until a
Site Rehabilitation Completion Order (SRCO) has been
received and all site cleanup expenses have been paid.
Following payment of reimbursement for the final application
and resolution of any disagreement related to that payment,
all Department records pertaining to petroleum contamination
site rehabilitation will be transferred to inactive
1 V©6 •
specific Authority: 376.303, 376.3071, 376.3072, F.S.
Law Implemented: 376.3071, 376.3072, F.S.
Hlatorys New 5-3-88; Amended 10-5-88, Formerly 17-73.080;
Amended: 12-10-89, 6-25-91, 4-22-93.
17-773.750 REIMBURSEMENT APPLICATION REVIEW.
Reimbursement applications shall be reviewed at two levels
in the order in which they were received. Initially, the
application components outlined in Rule 17-773.700, F.A.C.,
the site and discharge eligibility status, program task
completion, and technical documentation are verified for
sufficiency prior to acceptance. Subsequently,
the entire application package, including invoices and
supporting documentation in the site file shall be reviewed
for allowability and reasonableness of activities and
expenses claimed.
17-773.700(12)(cont'd.) - 17-773.750
04-22-93
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PER 1993 REIMBURSEMENT TOR PETROLEUM CONTAMINATION 17-773
BITE CLEANUP
(1) Provided there are sufficient unencumbered funds
available in the Inland Protection Trust Fund, within 60
days after receipt of an application for reimbursement, the
Department shall notify the applicant of any apparent errors
or omissions in their application, and request any
additional information which is required to complete review
of the application.
(2) An application shall be deemed sufficient when,
following review of the application forms, invoices,
technical reports, correspondence or any other records or
information pertaining to site rehabilitation, it is found
that no additional documentation or explanation is required
to make a determination of the allowability and
reasonableness of the expenses claimed. Applications shall
be considered insufficient in instances including the
following:
(a) The application components outlined in Rule
17-773.700, F.A.C., are not provided;
(b) The site and specific discharge are not eligible
for reimbursement under the Early Detection Incentive
Program, Petroleum Liability and Restoration Insurance
Program, or Abandoned Tank Restoration Program;
(c) The program task has not been completed pursuant to
Rule 17-773.500, F.A.C., and Chapter 17-770, F.A.C.;
(d) Copies of all applicable technical documentation of
claimed activities, including the IRA report. Contamination
Assessment Report, Remedial Action Plan, Remedial Action
status reports, and addenda, have not been submitted to the
Department's Bureau of Waste Cleanup;
(e) Expenses for ineligible activities or activities
considered to be part of a different program task are
included in the application and cannot be differentiated
from those which are eligible or pertain to the program
task(s) being claimed;
(f) Technical reports, documentation or supporting
invoices provide insufficient detail or lack reference to
particular activities or expenses and cannot be considered
as supporting documentation for the costs claimed;
(g) Adequate descriptions of items, activities or
expenses are not provided on the supporting invoices;
(h) Contradictions in the supporting documentation
regarding the type of personnel, equipment, or activity, or
the dates of particular activities require explanation;
(i) Capital expense items, purchased or leased, are
claimed and specific information regarding the purchase
price, the lease agreement, the dates of use, periods of
down time, repairs, or replacement required by Rule
17-773.600, F.A.C., is not provided; or
17-773.750(1) - 17-773.750(2)(1)
04-22-93
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DER 1993 REIMBURSEMENT FOR PETROLEUM CONTAMINATION 17-773
SITE CLEANUP
(j) Contractor, subcontractor or vendor invoices are
not provided to support claimed expenses.
(3) Once the Department requests additional
information, the Department may request only that
information needed to clarify such additional information or
to answer new questions raised by or directly related to
such additional information. At the applicant's written
request, the Department shall proceed to process the
reimbursement application without the additional
information.
(4) If it is determined that an application package is
insufficient because the site or discharge is not eligible
for reimbursement, the program task has not been completed,
the reimbursement application forms were not completed, the
CPA Report has not been provided or the supporting invoices
have not been provided, the application shall be returned to
the applicant and its first come - first served position
lost. If an application package is determined insufficient
because additional information or explanation is required to
complete the review and this information is not submitted in
response to an informal telephone request, a written request
for information shall be sent to the applicant. The
application package shall not be returned to the applicant
with this information request, but the order in which the
application is paid shall be based on the date of receipt of
the requested information.
(5) Each applicant shall be issued a reimbursement
order which documents the results of the Department's review
of the reimbursement application within 90 days of the close
of the 60 day period referenced in Rule 17-77 3.750(1) or, if
applicable, within 90 days from the date the Department
receives the last item of timely requested additional
information.
(6) With sufficient information and documentation, the
Department's reimbursement application review shall result
in approval or denial of expenses claimed in the
application. However, approval shall be limited to those
allowable costs for which reasonable rates were paid.
(7) All costs which do not meet the application
approval requirements described in Rule 17-773.750 shall be
denied.
(8) The Department shall issue a reimbursement order
informing the applicant of the total amount approved, the
reasons for the Department's action, and of the applicant's
rights to a hearing pursuant to Section 120.57, F.S. To the
extent practicable, this notice shall be in the form
described in Rule 17-103.150(3), F.A.C.
17-773.750(2)(j) - 17-773.750(8)
04-22-93
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DER_19J»_3 P.FIMBUR8EKENT FOR PETROLEUM CONTAMINATION17-773
SITE CLEANUP
(9) Th? review period may be extended by written mutual
agreement of the applicant and the Department.
(10) Provided the reimbursement order has not become
final, a request for supplemental payment of denied claims
can be made. Unless it can be demonstrated that the
Department has erred, supplemental Information shall be
reviewed and supplemental payment made based on the date of
submittal of the supplemental payment request. Supplemental
payment requests for expenses deducted front reimbursement
applications shall be submitted in the following format:
(a) Identify that the correspondence is a request for
supplemental payment;
(b) Identify the 6ite by name, location and the
Department's facility identification number;
(c) Identify the original application program task and
submittal date, the reimbursement order date, and the
program task within the application to which the
supplemental payment request pertains;
(d) Identify the total amount requested for
supplemental payment; and
(e) With reference to the original reimbursement order,
address each contested denial statement using specific
lettered sections and amounts denied;
(11) When costs are incorrectly claimed in an
application and disallowed by the Department because they
are not part of that program task and an application for the
correct program task has already been submitted but not
paid, the applicant may request that the disallowed costs be
considered in the review of the subsequent application for
that task. In such cases the appended costs shall not
affect the first come - first served position of the
application.
Specific Authority: 376.303, 376.3071, 376.3072, F.S.
Law Implemented: 376.3071, 376.3072, F.S.
History: New 5-3-88; Amended 10-5-88, Formerly 17-73.090;
Amended: 12-10-89, 4-22-93.
17-773.800 REIMBURSEMENT SCHEDULE. Provided there are
sufficient unencumbered funds available in the Inland
Protection Trust Fund, reimbursement for reasonable
expenditures shall be due and payable within ten days
following final approval of the reimbursement application.
Specific Authority: 376.303, 376.3071, 376.3072, F.S.
Lav Implemented: 376.3071, 376.3072, F.S.
History: New 5-3-88, Formerly 17-73.100; Amended: 12-10-89, 4-22-93
17-773.750(9) - 17-773.800(History)
04-22-93
-31-
DER 1993 REIMBURSEMENT FOR PETROLEUM CONTAMINATION 117J7 3
SITE CLEANUP
17-773.900 FORMS. The forms used by the Department in
the Reimbursement for Petroleum Contamination Site Cleanup
Program are adopted and incorporated by reference in this
section. The forms are listed by rule number, which is also
the form number, and subject title. Copies of forms may be
obtained by writing to the Director, Division of Waste
Management, Department of Environmental Regulation, 2600
Blair Stone Road, Tallahassee, Florida 32399-2400.
(1) Cleanup Cost and Completion Schedule Estimate Form,
Effective October 5, 1988.
(2) Program Task and Site Identification Form,
Effective April 22, 1993.
(3) Certification Affidavit, Effective April 22, 1993.
(4) Reimbursement Application Summary Sheets, Effective
June 25,1991.
(5) Personnel Supplementary Form, Effective April 22,
1993.
(6) Capital Expense Items Supplementary Form, Effective
April 22, 1993.
(7) Rentals Supplementary Form, Effective October 5,
1988.
(8) Mileage Supplementary Form, Effective October 5,
1988.
(9) Shipping Supplementary Form, Effective October 5,
1988.
(10) Well Drilling Supplementary Form, Effective October
5, 1988.
(11) Permits Supplementary Form, Effective October 5,
1988.
(12) Analysis Supplementary Form, Effective October 5,
1988.
(13) Miscellaneous Supplementary Form, Effective October
5, 1988.
(14) Interest Option Incentive Form, Effective June
25,1991.
Specific Authority: 376.303, 376.3071, 376.3072, F.S.
Law Implemented: 376.3071, 376.3072, F.S.
History: New 5-3-88; Amended 10-5-88, formerly 17-73.999;
Amended: 6-25-91, 4-22-93.
17-773.900 - 17-773.900(History)
04-22-93
-32-
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D ER_ 19? 2 SOIL THERMAL TREATMENT FACILITIE S 17-7 75
CHAPTER 17-775
SOIL THERMAL TREATMENT FACILITIES
PART I
INTENT, DEFINITIONS AND GENERAL PROVISIONS
17-775.100 Intent
17-775.200 Definitions
17-775.210 Reference Standards
17-775.300 Genera] Permits
17-775.400 Criteria for Clean Soil
17-775.410 Soil Sampling and Analysis
17-775.500 Approval of Alternate Procedures
PART II
SPECIFIC CONDITIONS FOR STATIONARY FACILITIES
17-775.600 Security
17-775.610 Ground Water Monitoring
17-775.620 Receiving, Handling, and Stockpiling
PART III
SPECIFIC CONDITIONS FOR MOBILE FACILITIES
17-775.700 notices and Security
17-775.710 Excavating, Handling, and Stockpiling
PART IV
SOIL THERMAL TREATMENT FACILITY FORMS
17-775.900 Forms
INDEX
11/30/92
-1-
DER1992 SOIL THERMAL TREATMENT FACILITIES 17-775
PART I
INTENT, DEFINITIONS AND GENERAL PROVISIONS
17-775.100 Intent
(1) Chapter 17-770, F.A.C., establishes petroleum or
petroleum product contamination cleanup criteria and a
cleanup process which must be undertaken at all petroleum
contamination sites. As a result of this cleanup effort,
petroleum contaminated soils may be removed for thermal
t reatment.
(2) The State of Florida Department of Environmental
Regulation promulgates this chapter in order to provide
assurances that petroleum contaminated soils as defined in
Rule 17-775.200, F.A.C., which are removed for thermal
treatment, are properly handled and are treated to levels
that will not endanger public health or cause future
contamination of other soils, ground water, and surface
water.
(3) The Department recognizes that thermal treatment of
petroleum contaminated soils in asphalt plants, cement
kilns, rotary kilns, or their equivalents, is a viable
method of remediating petroleum contaminated soils.
(4) The Department intends for this rule to apply only
to thermal treatment facilities and the petroleum
contaminated soils which will be treated therein.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, F.S.
History: New 12-10-90, Amended 11-30-92.
17-775.200 Definitions
All words and phrases defined in Section 376.301, F.S.,
shall have the same meaning when used in this Chapter unless
the context clearly indicates otherwise. The following
words and phrases when used in this Chapter shall, unless
the context clearly indicates otherwise, have the following
mean ings:
(1) "Contamination" or "contaminated" means a discharge
of petroleum or petroleum products into the surface waters,
ground waters or upon the land, in quantities which may
result in a violation of water quality standards set forth
in Chapters 17-3 and 17-302, F.A.C.
(2) "Department" means the State of Florida Department
of Environmental Regulation.
(3) "Environmental Protection Agency" or "EPA" means
The United States Environmental Protection Agency.
(4) "Existing facility" shall mean a soil thermal
treatment facility which is in operation prior to the
effective date of this Chapter.
17-775.100(1) - 17-775.200(4)
11/30/92
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DER 1992 SOIL. THERMAL TREATHEUT FACI LITTES_ 17-77 5
(5) "Hazardous substrincc" means ;iny p;uhr.tancc which i r-
dofincd a? a hazardous substance in tho United
Comprehensi vc Environmental Response, compensation and
Liability Act of 1980, 94 Stat. 27T.7, as cited in Rule
.1 7 - I 50 . POO ( 2 ) , F. A . C.
(15) "Hazardous waste" means a solid waste identified as
a hazardous waste in -10 CFR 261.3.
(7) "Leachate" means liquid which percolates through or
emerges from stockpiled soil and contains soluble, suspended
or miscible materials.
(8) "Mobile facility" means a thermal treatment system
which is transported to a soil contamination site and only
treats soil from that specific site.
(9) "Petroleum contaminated soil" means soil which hns
become contaminated with one or more of the following liquid
products made from petroleum: all forms of fuel known as
gasoline, dicsel fuel, jet fuel, kerosene, grades 2 through
f> fuel oils, crude oil, bunker C oil, residual oils; and
non-hazardous petroleum based lubricating, hydraulic, and
mineral oils. This definition applies only to the
regulation of soil thermal treatment facilities.
(10) "Stationary facility" means a thermal treatment
system which thermally treats contaminated soil transported
to the facility.
(11) "Thermal treatment" means to apply heat to increase
soil temperatures sufficiently to volatilize or burn
contaminants within the soil.
(12) "Soil thermal treatment facility" means either a
stationary or mobile facility designed, constructed or
utilized, and permitted by the Department to handle, store,
and thermally treat or process petroleum contaminated soils.
"Soil thermal treatment facility" does not include
electrical power plants in which thermal treatment of
contaminated soils from their own property results in ash
which is disposed of in accordance with Chapters 17-701 or
17-702, F.A.C., or facilities that treat hazardous waste or
hazardous substances.
(13) "Total Volatile Organic Aromatics" or "total VOA"
means the sum of concentrations of benzene, toluene, total
xylenes, and ethylbenzene as determined by EPA Method 602,
5030/8020, or 5030/8021.
(14) "Used oil" means any lubricant which has been
refined from crude oil and, as a result of use, storage or
handling, has become unsuitable for its original purpose due
to the presence of impurities¦or loss of properties, but
which may be suitable for further use as a fuel or may be
economically recycled for use as a fuel. "Used oil" shall
not include any oil which has been mixed with any material
which is a hazardous waste, unless the material is a
17-775.200(5) - 17-775.200(14)
11/3
-3-
D ER _1_9 9 2 SOIL THERMAL TREATMENT FACILITIES 17-77S
hazardous waste solely due to the characteristic of
ignitobi1ity as derined in 40 CFR Part 261, Subpart C as of
July 1, 1991. Used oil containing more than 1000 parts per
million of total organic halides is presumed to be mixed
with a halogenated hazardous waste listed in 40 CFR Part
7.61, Subpart D, unless a demonstration is made that the used
oil does not contain a hazardous waste.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.031, 403.061, 403.062, F.S.
History: New 12-10-90, Amended 11-30-92.
17-775.210 Reference Standards
(1) Reference standards are available for inspection at
the Department's district and central offices.
(2) Specific references to documents or parts thereof
are adopted and incorporated as standards only to the extent
that the documents are specifically referenced in this
Chapter.
(a) DER Manual for Preparing Quality Assurance Plans
(DER-QA-001/90), Florida Department of Environmental
Regulation, Quality Assurance Section.
(b) Test Methods for Evaluating Solid Waste,
Physical/Chemical Methods, EPA SW 846, Third Edition,
Document No. 955-001-00000-1, as amended by Final Update
Package I (November, 1990).
(c) EPA Draft Method 9073 for Total Recoverable
Petroleum Hydrocarbons.
(d) Federal Register; Volume 55, No. 61, pages 11798 to
11877; dated Thursday, March 29, 1990; on Hazardous Waste
Management System; Identification and Listing of Hazardous
Waste; Toxicity Characteristics Revisions; Final Rule.
(e) Quality Assurance Standard Operating Procedures
Manual for Soil Thermal Treatment Facilities as of November,
1991.
(f) EPA Method 3665 for sulfuric acid/permanganate
cleanup as written in Proposed Update II (November 1990) of
(b) above.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.061, 403.062, F.S.
History: New 12-10-90, Amended 11-30-92.
17-775.300 General Permits
(1) Soil thermal treatment facilities shall operate
pursuant to a general permit, and shall meet the applicable
genera] permit requirements ¦ in Ru1es • l7-4.510 through
17-4.540, F.A.C., and the requirements of this Chapter.
17-775.200(14)(cont'd.) - 17-775.300(1)
11/30/92
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D E R_ 19 92 S OIL THERMAL TREATHE NT FACI LI TIE S 17-77 5
(2) Prior to operating under a general permit, the
owners of a soil thermal treatment facility shall notify the
Department on Form 17-775.900(1). For a new soil thermal
treatment facility, renewal of a general permit, or
modification of a general permit, the notification must be
submitted 30 days before the operation begins or the
existing permit expires. Any existing facility not in
compliance with the requirements of this amended rule shall,
by December I, 1992, submit a new Notice of Intent, which
demonstrates how the facility will comply.
(3) The notice of intent to use the general permit to
treat petroleum contaminated soils at a soil thermal
treatment facility shall bear the signature, date and seal
of a professional engineer licensed in the State of Florida
and the signature of the facility owner or operator.
(4) Soil thermal treatment facilities also must be
permitted under Rule 17-2, F.A.C., prior to thermally
treating contaminated soil.
(5) Soil thermal treatment facilities shall treat soils
to the extent necessary to comply with the criteria for
clean soil in accordance with Rule 17-775.400, F.A.C. Soil
sampling and analysis shall be in accordance with Rule
17-775.410, F.A.C.
(6) For stationary soil thermal treatment facilities,
the specific conditions in Rules 17-775.600 through
17-775.620, F.A.C., shall apply. For mobile soil thermal
treatment facilities, the specific conditions in Rule
17-775.700 and 17-775.710, F.A.C., shall apply.
(7) All soil thermal treatment facilities operating
under a general permit shall maintain accurate records of
operations. Operating report logs shall be maintained on a
normal work day basis on Forms 17-775.900(2) and (3),
F.A.C., and shall be maintained for a period of three years
at the facility for a stationary facility, or, at an
approved location for mobile facility. The Department shall
have complete access to all records, field and laboratory
chain-of-custody records, quality control records, raw data
records, calibration records, and laboratory analyses.
(8) when treating petroleum contaminated soil, soil
thermal treatment facilities shall have a minimum soil
retention time and a minimum operating soil temperature
which provides treatment to comply with the criteria in Rule
17-775.400, F.A.C.
(9) Soil must be screened, or otherwise processed in
order to prevent particles greater than two inch mesh
(diameter) from entering the thermal treatment unit. Soil
thermal treatment facilities are allowed to treat debris,
other than soil, such as concrete, rocks, and wood.
17-775.300(2) - 17-775.300(9)
11/30/92
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P_ER_19 92 SOIL THERMAL TREATHENT FACILITIES
17-775
(10) All sampling and analysis shall be conducted
pursuant to Rule 17-160.300(7), F.A.C. Soil sampling
procedures shall be in accordance with the Quality Assurance
Standard Operating Procedures Manual for Soil Thermal
Treatment Facilities. Analysis of soil samples shall be
conducted by a laboratory with an approved Quality Assurance
plan under Chapter 17-160, F.A.C.
Specific Authority: 376.303, 376.3071, 403.0877, F.S.
Law Implemented: 376.3071, F.S.
History: Hew 12-10-90, Amended 11-30-92.
17-775.400 Criteria for Clean Boil
Treated soil must comply with the following cleanup
levels to be classified as clean soil. Mixing of treated
soils to achieve these standards is prohibited.
(1) Total Volatile Organic Aromatics shall not exceed
100 ug/kg (100 ppb) using the analysis identified in Rule
17-775.410(1)(a), F.A.C.,
(2) Total Recoverable Petroleum Hydrocarbons (TRPH)
sha 1 1 :
(a) not exceed 10 mg/kg (10 ppm) using the analysis
identified in Rule 17-775.410(1)(b), F.A.C., or
(b) not exceed 50 mg/kg (50 ppm) using the analysis
identified in Rule 17-775.410(1)(b), F.A.C., provided the
total of the Polynuclear Aromatic Hydrocarbons (PAH) does
not exceed 1 mg/kg (1 ppm) using the analysis identified in
Rule 17-775.410(1)(c), F.A.C., and the total of the Volatile
Organic Halocarbons (VOH) does not exceed 50 ug/kg (50 ppb)
using the analysis identified in Rule 17-775.410(1)(d),
F.A.C.,
(3) Metals shall not exceed the following concentrations
in Table I using the analyses identified in Rule
17-775.410(1)(e), F.A.C. The appropriate preparation
methods identified in Rule 17-775.410(2), F.A.C., shall be
used prior to metal analysis.
TABLE I
Maximum Concentration

TCLP*
Total
Metals
.(mg/JJ.
(mq/.kql
Arsenic
5 . 0
10
Bar ium
100.0
4940
Cadmium
1 . 0
37
Ch rom i um
5 . 0
50
Lead
5 . 0
108
Mercury
0". 2
23
Selen ium
I . 0
389
Si lver
5 . 0
353
*TCLP = Toxicity Characteristic Leaching Procedure
17-775.300(10) - 17-775.400(3)
11/30/92
-6-
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DER 1992
SOIL THERMAL TREATHENT FACILITIES
17-775
(4) Under no circumstances may soils which exhibit v. he
characteristic of toxicity for metals (EPA HW Mo. D004-IJOI1)
as established in 40 CFR 261.24 be blended. However,
blending of soils prior to treatment to achieve the total
metals criteria in Rule 17-775.400(3), F.A.C., is allowed if
the pre-blended soil docs not exhibit the characteristic of
toxicity for those metals. Records shall be maintained of
blending procedures used to comply with the total metals
standards. Either records of blending ratios with
calculations to estimate total metals concentrations of
blended soil or resampling and analysis of blended
pretreatment soil are acceptable. Uncontaminated soil shall
not be used for blending.
(5) Soil which exhibits the hazardous characteristic of
toxicity must be treated or disposed of at an approved
hazardous waste treatment/disposal facility.
Specific Authority: 376.303, 376.3071, 403.087, F.S.
Law Implemented: 376.3071, 403.087, F.S.
History: New 12-10-90, Amended 11-30-92.
17-775.410 Soil Sampling and Analysis
(1) Soil samples shall be analyzed for the following
parameters using the test methods indicated:
EPA Method 5030/8021
or
5030/8020
(b) Total Recoverable EPA Draft Method
3540/9073
EPA Method 8100,
8250, 8270, or
8310
EPA Method 5030/8021
or 5030/8010
EPA Method 5050/905C,
5050/9252,
5050/9253
(a) Total Volatile
Organic Aromatics (VOA)
Petroleum Hydrocarbons
(c) Polynuclear Aromatic
Hydrocarbons (PAH)
(d) Volatile Organic
Halocarbons (VOH)
(e) Total Organic Halides
(f) Metals
Arsenic
EPA Method
7060,
706 1

or 6010

Bar ium
EPA Method
7080,
708 I

or 6010

Cadmium
EPA Method
7130,
713 1

or 60J 0

Chrom i um
EPA Method
7190,
7191

or 6010

Lead
EPA Method
7420,
7 4 2 1
or 6010
17-775.400(4) - 17-775.410(1)(f)
11/30
-7-
DER 1992 BOIL THERMAL TREATMENT FACILITIES 17-775
Mercury EPA Method 7471
Selenium EPA Method 7740, 7741
or 6010
Silver EPA Method 7760, 7761
or 6010
(2) The acid digestion procedure by EPA Method 3050
shall be used to prepare soil samples for total metal
analyses except mercury, and the extraction procedure by EPA
Method 1311 TCLP shall be used to determine leachability
characteristic of metals.
(3) Pretreatment soil shall be analyzed for Volatile
Organic Aromatics, Total Recoverable Petroleum Hydrocarbons,
Volatile Organic Halocarbons and total metals. The number
of composite soil samples for each contamination site shall
be in accordance with Table II. Each composite soil sample
shall consist of soil samples taken from at least four
locations. Each sample shall be collected from locations
equally distributed throughout the soil surface area and
from a depth of at least six inches below the surface.
Sampling procedures are described in the Standard Operating
Procedures Manual for Soil Thermal Treatment Facilities.
TABLE II
Amount of Soil
by Volume
(cubic yards)
Less than 100
100 to 500
500 to 1000
For each
additional 500
by Weight
(tons) Samples
Less than 140
140 to 700
700 to 1400
For each
additional 700
Quantity of
Compos ite
1
3
5
1
(4) The soil must not be thermally treated pursuant to
this Chapter if it is classified as a hazardous waste. If
any soil is suspected of containing a hazardous waste, then
screening analyses for other contaminants may include, but
are not limited to the following: volatile organic
halogens; corrosivity; reactivity; toxicity characteristic
constituents by the TCLP, which includes metals, pesticides
and additional organics. TCLP analysis for metals shall not
be required if total metals analysis do not indicate the
potential for toxic leachate concentrations. Soil
contaminated with used oil, hydraulic oil, or mineral oil
may be a hazardous waste and should be tested using toxicity
characteristic, for total organic halides. Excavated soil
which is classified as a hazardous waste must be managed as
a hazardous waste and treated or disposed of at an approved
hazardous waste treatment/disposa1 facility.
17-775.410(1)(f) - 17-775.410(4)
11/30/92
-8-
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DKR 1992 BOIL THERHM TREATHENT FRCILITIES 17-77 5
(5) Following thermal treatment, a soil sample shall be
collected at least hourly and composited over an eiqht
operational hour maximum time interval or at least once
every <100 tons, whichever is less. Each composite sample
shall be analyzed for the parameters identified in Rule
17-775.400(1) , (2) (a), and (3), F.A.C. If the clean soil
criterion in Rule 17-775.400(2)(a), F.A.C., is exceeded, the
soil may be analyzed for PAH and VOH parameters identified
in Rule 17-775.400(2)(b), F.A.C.
(6) Soil contaminated with used oil, hydraulic oil, or
mineral oil may contain polychlorinated biphenyls (PCB).
Such soil containing PCBs shall not be thermally treated at
a mobile soil thermal treatment facility. Further, such
soil containing PCBs shall not be thermally treated pursuant
r.o this chapter at a stationary soil thermal treatment
facility unless each of the following conditions are met:
(a) Soil contaminated with used oil, hydraulic oil, or
mineral oil shall be analyzed by EPA Method 3550/3665/8080
for PCB concentrations. Soil PCB concentrations must be
equal to or less than 10 ppm in accordance with cleanup
requirements described in 40 CFR, Part 761, Subpart G
(Spills Cleanup Policy). Such soil shall not be blended,
mixed or diluted to meet this specification.
(b) If the analytical results obtained pursuant to
paragraph (a) above are equal to or greater than 20 ppb,.a
sample of the used oil, hydraulic oil, or mineral oil must
he obtained by the generator of such material and analyzed
using the same EPA methodology referenced above. The used
oil, hydraulic oil, or mineral oil must be shown to have a
PCB concentration of less than 50 ppm in accordance with the
criteria for non-PCB oil and excluded products defined in 40
CFR, Section 761.3. If a sample of the used oil, hydraulic
oil, or mineral oil is not available, a previous record of
laboratory data and analytical results may be utilized to
show the PCB concentration in the used oil, hydraulic oil,
or mineral oil.
(c) The generator of soil contaminated with used oil,
hydraulic oil, or mineral oil containing PCBs shall maintain
a copy of laboratory data and analytical results obtained
pursuant to paragraphs (a) and (b) above confirming that the
concentrations specified in such paragraphs are met. The
generator shall maintain such records for a period of three
years which shall be available for inspection upon reguest
of the Department.
(d) The owner or operator of the soil thermal treatment
facility shall ensure that any contaminated soil containing
PCBs no greater than the concentrations specified in
17-775.410(5) - 17-775.410(6)(d)
11/30/92
-9-
DER_1?92 SO^Ijj_THERMAL TREATMENT FACILITIES
17-775
paragraph (a) above, is recycled or reused after treatment,
into a finished product line, or disposed of at a permitted,
lined landfill. Finished product lines which shall meet
this requirement are cement, concrete, and asphalt cement.
(e) The owner or operator of the soil thermal treatment
facility shall maintain records demonstrating that any
contaminated soil containing PCBs which has been treated by
such facility has been recycled or reused after treatment
into a finished product line or disposed of at a permitted,
lined landfill as specified in paragraph (d) above. Such
records should be prepared at the time such treated soil is
recycled or reused or disposed of in an approved landfill
after treatment. The owner or operator shall maintain such
records for a period of three years which shall be available
for inspection upon request of the Department.
(f) Soils containing PCBs meeting the specifications of
Chapter 17-775, F.A.C., may be treated in a soil thermal
treatment facility if the air permit for the facility,
issued pursuant to Chapter 17-296, F.A.C., allows the
facility to treat soil containing PCBs.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.3071, 403.061, 403.062, F.S.
History: New 12-10-90, Amended 11-30-92.
17-775.500 Approval of Alternate Procedures
(1) The owner or operator of a facility subject to the
provisions of this Chapter may request in writing a
determination from the Department that any requirement of
this Chapter should not apply to such facility, and shall
request approval of alternate procedures.
(2) The request shall set forth at a minimum the
following information:
(a) The facility for which an exception is sought;
(b) The specific provision of Chapter 17-775, F.A.C.,
from which an exception is sought;
(c) The basis for the exception;
(d) The alternate procedure or requirement for which
approval is sought and a demonstration that the alternate
procedure or requirement provides a substantially equivalent
degree of protection for the lands, surface waters, or
ground waters of the state as the established requirement;
and
(e) A demonstration that the alternate procedure or
requirement is at least as effective as the established
procedure or requirement.
17-775.4 10(6) (d) (cont'd.) - 17-775.500(1) (e)
-10-
11/30/92
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DER19 92 BOIL THERMAL TREATMENT- FACILITIES 17 -7 7 S
(3) The Secretary or the Secretary's designee shall
approve or deny each alternate, procedure using the criteria
in subsection (2) and shall provide written notice of suet)
act ion.
Specific Authority: 376.303, 376.3071, F.S.
Law Implemented: 376.303, 376.3071, F.S.
History: 12-10-90, Amended 11-30-92.
PART II
SPECIFIC CONDITIONS FOR STATIONARY FACILITIES
17-775.600 security
(1) All stationary thermal treatment facilities shall
take appropriate measures to assure protection of the
general public.
Specific Authority. 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.303, 376.3071, F.S.
History: 12-10-90.
17-775.610 Ground Hater Monitoring
(1) A ground water monitoring program, to provide
assurances that ground water quality is maintained, shall be
developed for each stationary facility.
(2) A ground water monitoring plan shall be provided to
the Department as an attachment to the general permit
application. The ground water monitoring plan shall be
signed, sealed, and dated by a professional geologist. The
monitoring plan shall contain the following information:
(a) Location(s) of the proposed unaffected natural
background and downgradient monitoring well(s) and
construction details of the monitoring well(s).
(b) Hydrogeological, physical, and chemical data for
the site, including:
1. Direction and rate of ground water flow;
2. Backgrpund ground water quality;
3. Porosity, horizontal and vertical permeability for
the aquifer(s), and the depth to, and lithology of the first
confining bed(s);
4. Vertical permeability, thickness, and extent of any
confining beds;
5. Topography, soil information, and surface water
drainage systems surrounding the site; and
6. Inventory depth, construction details (well drilling
logs), and cones of depression of water supply wells located
within a one mile radius of the site.
(3) Monitoring wells shall be constructed in accordance
with the provisions of Chapter 17-532, F.A.C., except as
f o.l l ows:
17-775.500(3) - 17-775.610(3)
>2
-11-
DER 1992 SOIL THERMAL TREATMENT FACILITIES
17-775
(a) The minimum inside diameter sha11 be two inches.
(b) Flush threaded couplings shall be used to join
polyvinyl chloride (PVC) pipe.
(4) The ground water monitoring wells shall be sampled
and analyzed on a quarterly basis for the following
parameters using the designated test methods:
(a) Volatile Organic Aromatics
1.
Benzene
EPA Method
5030/8021
602,
5030/8020,

2 .
Toluene
EPA Method
5030/8021
602,
5030/8020,
or
3 .
EthyIbenzene
EPA Method
5030/8021
602,
5030/8020,
or
4 .
Total Xylenes
EPA Method
5030/8021
602 ,
5030/8020,
or
(b)
Methyl Tert-Butyl
Ether (MTBE)
EPA Method
5030/802 I
602 ,
5030/8020,
or
(c)
Polynuclear
EPA Method
610,
625, 8100,

8310,
Aromatic Hydrocarbons
or 8270
8250
(d)
1 .
MetaIs*
Arsenic
2. Barium
3. Cadmium
4. Chromi um
206.2, 206.3, 7060
200.7, 208.1,
3010/7080 or
5.
6 .
7 .
Lead
Mercury
Selenium
EPA Method
or 7061
EPA Method
208.2, 3010/6010
3020/7081
EPA Method 200.7, 213.1,
213.2, 3010/6010, 3010/7130 or
3020/7131
EPA Method 200.7, 218.2,
3010/6010, or 3020/7191
EPA Method 239.2 or 3020/7421
245.1, or 7470
270.2, 270.3, 7740
8. Silver
EPA Method
EPA Method
or 7741
EPA Method
200.7, 271.1,
271.2, 6010, 7760 or 7761
*The most sensitive analytical method of those methods
listed above shall be used if the metal(s) of interest is
not detected in natural background levels. An annual
summary of ground water monitoring data shall be submitted
to the Department's district office on the date the general
permit notice of intent was submitted to the Department.
17-775.610(3)(a) - 17-775.610(3)(d)8.
-12-
11/30/92
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DER 1992 SOIL THERMAL TRBATHENT FACILITI.ES 17-775
(5) If sampling analyses indicate any of the above
parnmeters exceed the unaffected natural background levels,
the permittee shall notify the Department in writing within
seven days of receiving analytical results.
specific Authority: 376.303, 376.3071, 403.061, 403.0877,
r. s.
Law Implemented: 376.303, 376.3071, F.S.
History: New 12-10-90, 11-30-92.
17-775.620 Receiving, Handling, and Stockpiling
(1) Each batch of contaminated soil shall be clearly
identified by source and stockpiled separately until all
sampling and analyses in accordance with Rule 17-775.4 10,
r.A.C, are complete. Unless pretreatment soil samples are
taken at the contamination site, a stockpile identification
system shall be used which is consistent
with the sample numbering system described in the Quality
Assurance Standard Operating Procedures Manual for Soil
Thermal Treatment Facilities. Once the contaminated soil is
determined to be acceptable for treatment, soil batches may
be mixed with other soil batches found acceptable for
thermal treatment. All contaminated soils shall be stored
separately and apart from all treated soils.
(2) Contaminated soil shall be stored pursuant to this
Chapter in such a manner to prevent contact with rainfall or
release of leachate to ground water or surface water. The
following pre-treatment storage measures shall be provided
at each facility:
(a) All soil shall be stored under a permanent cover
structure designed and constructed to prevent rainfall to
either directly or indirectly come into contact with the
stockpiled soil.
(b) The soil shall be stored on a permanent floor
designed and constructed to prevent seepage, which will
maintain a maximum hydraulic conductivity of no more than
10~7cm/sec through a minimum of four inches.
1. Plastic or synthetic liners as flooring shall not
be considered as suitable alternates.
2. The floor structure shall be designed and constructed
for leachate collection and control. A record keeping
system shall be provided to record quantity of leachate
collected and means of treatment or disposal.
(3) A covered structure and surface seal shall be
provided as described in Rule 17-775.620(2)(b), F.A.C., to
prevent soil or ground water contamination during crushing,
screening, off loading, or other handling. If these areas
are cleared of contaminated soil daily, surface sealing as
dose r i bed i n Rule 17-775.620(2) (b), F.A.C., shall be
prov ided.
17-775.610(5) - 17-775.620(3)
11/30/92
-13-
DER 19 9 2
SOIL THERMAL TREATMENT FACILITIES
17-775
(4) No leachate shall be discharged to soils, ground
water, or surface water prior to treatment. Prior to
discharge, treated leachate shall meet the standards
established in Rule 17-3, F.A.C. Applicable permits for
discharges to either surface water or ground water must be
obtained prior to any discharge.
(5) Leachate may be treated in the thermal treatment
fac i1i ty.
(6) Until soil analyses have verified that the soil
meets the clean soil criteria identified in Rule 17-775.400,
F.A.C., treated soil shall be stockpiled on a permanent
floor structure, which meets the criteria in Rule
17-775.620(2)(b).
(7) The maximum quantity of untreated soil stored at a
thermal treatment facility shall be limited to 90 days
trnatment capacity based on the facility rated capacity
stated in the Notice of Intent, Form 17-775.900(1).
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.303, 376.3071, F.S.
History: New 12-10-90, Amended 11-30-92.
PART III
SPECIFIC CONDITIONS FOR MOBILE FACILITIES
17-775.700 Notices and Security
(1) Any mobile thermal treatment facility which intends
to treat contaminated soil, shall notify the following
entities by registered mail at least three days prior to
initiating operation at a contaminant site:
(a) The local City and County governments and local
environmental agency, and
(b) The appropriate District Office of the Department.
(2) Any permitted mobile thermal treatment facility
shall take appropriate measures to assure protection of the
general public including the following:
(a) A security fence shall surround all areas where
contaminated soil is being processed, including stockpiling,
handling and burning areas. The fence shall extend at least
six feet above ground surface. In lieu of a security fence,
surveillance personnel on site at all times is an acceptable
a 1ternative.
(b) Gate accesses shall be locked when no attendant is
present.
(c) Appropriate warning notices shall be clearly
posted.
Specific Authority: 376.303, 376.3071, 403.061, F.S.
Law Implemented: 376.303, 376.3071, F.S.
History: New 12-10-90.
17-775.620(4) - 17-7 7 5 . 7 00 ( 11 istory)
-14-
11/30/92
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PER 1992 SOIL THERMAL TREATHENT FACTLIT IES 17_- 7 75
17-775.710 Excavating, Handling, and Stockpiling
(1) Mobile facilities shall operate only at sites with
confirmed contaminated soils and may treat only soil native
to the site.
(2) Soil which is excavated shall remain on-site and
within the area of suspected ground water contamination
until soil has been treated/ and cleanup levels identified
in Rule 17-775.400, F.A.C., have been confirmed.
(3) Excavated soil shall be stockpiled on an
impermeable surface or a liner with a minimum thickness of
five mils. The stockpile shall be covered by a secured
plastic cover with a minimum thickness of five mils until
treatment in the thermal treatment unit commences.
(4) To the greatest extent possible, soil treated by
mobile facilities shall be returned to the original
excavation pit.
(5) The stockpile area for untreated soil shall be
graded to direct leachate flow to return to the original
excavation pit.
Specific Authority: 376.303, 376.3071, 403.061, 403.0877,
F.S.
Law Implemented: 376.303, 376.3071, F.S.
History: Hew 12-10-90, Amended 11-30-92.
PART IV
SOIL THERMAL TREATMENT FACILITY FORMS
17-775•900 Forms
The forms and instructions used by the Department in the
general permitting of soil thermal treatment facilities are
adopted and incorporated by reference in this section. The
forms are listed by rule number, which is also the form
number, and with the subject title and effective date.
Copies of forms may be obtained by writing to the Director,
Division of Waste Management, Department of Environmental
Regulation, 2600 Blair Stone Road, Tallahassee, Florida
32399-2400.
(1) Notice of Intent to Use the General Permit to
Construct/Operate a Soil Thermal Treatment Facility, 1990.
(2) Untreated Soil Reporting Form, 1992.
(3.) Treated Soil Reporting Form, 1990.
Specific Authority: 376.303, 376.3071, 403.061, 403.087,
F.S.
Law Implemented: 376.303, 376.3071, F.S.
History: New 12-10-90, Amended 11-30-92.
17-775.710(1) - 17-775. 900 (II i story)
11/3
-15-
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GEORGIA UNDERGROUND STORAGE TANK ACT
(Official Code of Georgia Annotated Section 12-13-1 et sea.) ©
CHAPTER 13
UNDERGROUND STORAGE TANKS
Sec.
12-13-1. Short title.
12-13-2. Public policy.
12-13-3. Definitions.
12-13-4. Exceptions to chapter.
12-13-5. Rules and regulations; enforcement powers.
12-13-6. Powers and duties of director.
12-13-7. Performance standards applicable until rules and regulations effective.
12-13-8. Investigations.
12-13-9. Establishing financial responsibility; claims against guarantor; Underground
Storage Tank Trust Fund.
12-13-10. Environmental assurance fees; late participation fee.
12-13-11. Corrective action for release of petroleum product into environment.
12-13-12. Recovery in event of discharge or threat of discharge of regulated
substance; lien.
12-13-13. Notification by owner of underground storage tank.
12-13-14. Corrective action for violations of chapter, rules and regulations, or orders
and for release of regulated substance into environment.
12-13-15. Injunctions and restraining orders.
12-13-16. Hearings and review.
12-13-17. Judgment in accordance with division's order.
12-13-18. Required compliance with chapter; proof that petroleum subjected to
environmental fee; violations of chapter; access to property.
12-13-19. Violations; imposition of penalties.
12-13-20. Emergency orders; hearing.
12-13-21. Public access to records.
12-13-22. Representation by Attorney General.
© 1926-1930, 1981-1995 By The State of Georgia.
Reprinted with Permission. All Rights Reserved.
1
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12-13-1. Short title.
This chapter shall be known as and may be cited as the "Georgia Underground
Storage Tank Act."
(Code 1981, § 12-13-1, enacted by Ga. L. 1988, p. 2072, § 1.)
12-13-2. Public policy.
(a) It is declared to be the public policy of the State of Georgia, in furtherance of
its responsibility to protect the public health, safety, and well-being of its citizens and to
protect and enhance the quality of its environments, to institute and maintain a
comprehensive state-wide program for the management of regulated substances stored
in underground tanks.
b) It is the intent of the General Assembly that the Environmental Protection
Division of the Department of Natural Resources shall be designated as the state agency
to administer the provisions of this chapter. The director of the Environmental Protection
Division of the Department of Natural Resources shall be the official charged with the
primary responsibility for the enforcement of this chapter. In exercising any authority or
power granted by this chapter and in fulfilling duties under this chapter, the director shall
conform to and implement the policies outlined in this chapter.
(c) It is the intent of the General Assembly to create an environmental assurance
fund which, in addition to those purposes set forth in subsections (f) and (g) of Code
Section 12-13-9, may also be used by owners and operators as an alternate to insurance
purchased from insurance companies for purposes of evidencing financial responsibility
for taking corrective action and compensation of third parties for bodily injury and
property damage caused by sudden and nonsudden accidental releases arising from
operating underground storage tanks.
(Code 1981, § 12-13-2, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L 1989, p. 14, § 12.)
12-13-3. Definitions.
As used in this chapter, the term:
(1) "Board" means the Board of Natural Resources of the State of Georgia.
(2) "Corrective action" means those activities required for response to and cleanup
of releases of regulated substances from underground storage tanks, including, but not
limited to, initial response, initial abatement measures and site check, initial site
characterization, free product removal, investigations for soil and ground-water cleanup,
and preparation and implementation of a corrective action plan.
(3) "Department" means the Department of Natural Resources of the State of
Georgia.
(4) "Director" means the director of the Environmental Protection Division of the
Department of Natural Resources.
2
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(5) "Division" means the Environmental Protection Division of the Department of
Natural Resources of the State of Georgia.
(6) "Federal act" means the Solid Waste Disposal Act, 42 U.S.C. Section 3152, et
seq., as amended, particularly by the Hazardous and Solid Waste Amendments of 1984,
Public Law 98-616, 42 U.S.C. Section 6991, et seq., as amended by Public Law 99-499,
1986.
(7) "Guarantor" means any person, other than the owner or operator, who provides
evidence of financial responsibility for an owner or operator.
(8) "Nonoperational storage tank" means any underground storage tank in which
regulated substances will not be deposited or from which regulated substances will not
be dispensed after November 8, 1984.
(9) "Operator" means any person in control of or having dailv responsibility for the
operation of the underground storage tank.
(10) "Owner" means, in the case of an underground storage tank in use on
November 8, 1984, or brought into use or capable of being used after that date, any
person who owns an underground storage tank used for or capable of being used for the
storage or dispensing of regulated substances and, in the case of any underground
storage tank in use before November 8,1984, but no longer in use or capable of being
used on November 8, 1984, any person who owned such tank immediately before the
discontinuation of its use; provided, however, such term shall not include any person
who, without participating in the management of an underground storage tank and
otherwise not engaged in petroleum production, refining, and marketing, holds indicia of
ownership primarily to protect that person's security interest in the underground storage
tank.
(11) "Person" means an individual, trust, firm, joint-stock company, corporation,
including a government corporation, partnership, association, municipality, commission,
political subdivision, or any agency, board, department, or bureau of this state or of any
other state or of the federal government.
(12) "Petroleum" means petroleum, including crude oil or any fraction thereof which
is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute).
(13) "Petroleum product" means petroleum, including gasoline, gasohol, diesel fuel,
fuel oils including #2 fuel oil, and kerosene, including jet turbine fuel.
(14) "Regulated substance" means any substance defined in Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Section 9601, as amended by P.L 99-499,1986, et seq., and petroleum, including
crude oil or any fraction thereof which is liquid at the standard conditions of temperature
and pressure of 60 degrees Fahrenheit and 14.7 pounds per square inch absolute, but
not including any substance regulated as a hazardous waste under Part 1 of Article 3 of
Chapter 8 of this title, the "Georgia Hazardous Waste Management Act," as amended.
(15) "Release" means any spilling, leaking, emitting, discharging, escaping,
leaching, or disposing from an underground storage tank into ground water, surface
water, or subsurface soils.
(16) Terminal" means a bulk storage facility for storing petroleum products
supplied by pipeline or marine vessel.
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(17) "Third-party liability" means:
(A) As to bodily injury, specific physical bodily injury proximately resulting from
exposure, explosion, or fire caused by the presence of a release from a regulated
underground storage tank and which is incurred by a person other than the owner or
operator, the landlord of the owner or operator, employees or agents of an owner or
operator, or employees or agents of the landlord of an owner or operator; and
(B) As to property damage, actual physical damage or damage due to specific loss
of normal use of property owned by a person other than either the owner or operator of
an underground storage tank from which a release has occurred or the landlord of an
owner or operator of the underground storage tank from which a release has occurred.
(18) "Underground storage tank" means any one or combination of tanks, including
underground pipes connected thereto, which is used to contain an accumulation of
regulated substances and the volume of which, including the volume of the underground
pipes connected thereto, is 10 percent or more beneath the surface of the ground.
(Code 1981, § 12-13-3, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L 1989, p. 14, § 12;
Ga. L 1989, p. 256, § 1; Ga. L 1993, p. 91, § 12; Ga. L. 1994, p. 804, § 1.)
12-13-4. Exceptions to chapter.
This chapter shall not apply to the following:
(1) Any farm or residential tank of 1,100 gallons or less capacity used for storing
motor fuel for noncommercial purposes;
(2) Any tank used for storing heating oil for consumptive use on the premises
where stored;
(3) Any septic tank;
(4) Any pipeline facility, including gathering lines:
(A) Regulated under the Natural Gas Pipeline Safety Act of 1968,49 U.S.C. Section
1671, et seq.;
(B) Regulated under the Hazardous Liquid Pipeline Safety Act of 1979, 49 U.S.C.
Section 2001, et seq.; or
(C) Which is an intrastate pipeline facility regulated under state law comparable to
the provisions of law referred to in subparagraph (A) or (B) of this paragraph;
(5) Any surface impoundment, pit, pond, or lagoon;
(6) Any storm-water or waste-water collection system;
(7) Any flow-through process tank;
(8) Any liquid trap or associated gathering lines directly related to oil or gas
production and gathering operations; or
(9) Any storage tank situated in an underground area (such as a basement, cellar,
mine working, drift, shaft, or tunnel), if the storage tank is situated upon or above the
surface of the floor.
(Code 1981, § 12-13-4, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L. 1989, p. 14, § 12.)
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12-13-5. Rules and regulations; enforcement powers.
In the performance of Its duties, the board shall have and may exercise the power to:
(1) Adopt, promulgate, modify, amend, and repeal rules and regulations to
implement and enforce the provisions of this chapter as the board may deem necessary
to provide for the management of regulated substances stored in underground tanks to
protect the environment and health of humans. Such rules and regulations may be
applicable to the state as a whole or may vary from area to area, as may be appropriate
to facilitate the accomplishment of the provisions, purposes, and policies of this chapter.
The rules and regulations shall include all requirements necessary for consistency with
applicable federal law and federal regulations and shall include, but shall not be limited
to, the following:
(A) Standards and control measures applicable to underground storage tanks and
owners or operators of underground storage tanks. These standards and control
measures may include, but are not limited to:
(1) Requirements for maintaining a leak detection system, an inventory control
system together with tank testing, or a comparable system or method designed to identify
releases in a manner consistent with the protection of human health and the environment;
(ii) Requirements for maintaining records of any monitoring or leak detection
system or inventory controls or inventory control system or tank testing or comparable
system;
(iii) Requirements for reporting of any releases and corrective actions taken in
response to a release from an underground storage tank; and
(iv) Requirements for notification regarding the existence of operational or
nonoperational underground storage tanks;
(B) Requirements for maintaining evidence of financial responsibility consistent with
applicable federal law and federal regulation; and
(C) Performance standards for underground storage tanks brought into use on or
after the effective date of such standards. The performance standards for new
underground storage tanks shall include, but are not limited to, design, construction,
installation, release detection, and compatibility standards; and
(2) Take all necessary steps to ensure the effective enforcement of this chapter.
(Code 1981, s 12-13-5, enacted by Ga. L 1988, p. 2072, § 1.)
12-13-6. Powers and duties of director.
(a) The director shall have and may exercise the following powers and duties:
(1) To exercise general supervision over the administration and enforcement of this
chapter and all rules, regulations, and orders issued under this chapter;
(2) To encourage, participate in, or conduct studies, reviews, investigations,
research, and demonstrations relating to underground tank storage of regulated
substances in this state as he deems advisable and necessary;
(3) To make investigations, analyses, and inspections to determine and ensure
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compliance with this chapter, the rules and regulations promulgated under this chapter,
and any orders which the director may issue;
(4) To enter into such contracts as may be convenient, required, or necessary to
effectuate the provisions of this chapter or the rules and regulations promulgated under
this chapter, including the administration of the state underground storage tank program;
(5) To prepare, develop, amend, modify, submit, and enforce any comprehensive
plan or program sufficient to comply with this chapter and the federal act for the control,
regulation, and monitoring of underground tank storage of regulated substances in this
state;
(6) To conduct such public hearings as are required by this chapter or as he
deems necessary for the proper administration of this chapter and to control and manage
the conduct procedure for such public hearings;
(7) To advise, consult, cooperate, and contract on underground tank storage of
regulated substance matters with other agencies of this state, political subdivisions
thereof, and other designated organizations or entities; and, with the approval of the
Governor, to negotiate and enter into agreements with the governments of other states
and the United States and their several agencies, subdivisions, or designated
organizations or entities;
(8) To collect and disseminate information and to provide for public notification in
matters relating to underground tank storage of regulated substances;
(9) To issue, amend, modify, or revoke orders as may be necessary to ensure and
enforce compliance with the provisions of this chapter and all rules and regulations
promulgated under this chapter;
(10) To institute, in the name of the division, proceedings of mandamus, injunction,
or other proper administrative and civil proceedings to enforce the provisions of this
chapter, the rules and regulations promulgated under this chapter, or any orders issued
under this chapter;
(11) To accept, receive, administer, or disperse funds or grants from public or
private sources for the purpose of proper administration of this chapter or for carrying out
any of the duties, powers, or responsibilities under this chapter;
(12) To grant variances in accordance with the provisions of this chapter and the
rules and regulations promulgated under this chapter, provided such variances are not
inconsistent with the federal act and rules or regulations promulgated under such act;
(13) To encourage voluntary cooperation by persons and affected groups to
achieve the purposes of this chapter;
(14) To assure that the State of Georgia complies with the federal act and retains
maximum control under such act and receives all desired federal grants, aid, and other
benefits;
(15) To require any person who is an owner or operator of an underground
storage tank to notify the division in writing as provided by this chapter;
(16) To require any person who is an owner of an underground storage tank taken
out of operation after January 1,1974, to notify the division in writing as provided by this
chapter;
(17) To maintain an inventory of underground tanks within the state, including such
information as location, identity, quantity, method of storage, owners and operators, and
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any other information which the director may deem necessary to administer and enforce
this chapter;
(18) To adopt, promulgate, modify, amend, and repeal criteria for the identification
of regulated substances and the determination of whether any substance or combination
of substances is regulated for the purposes of this chapter;
(19) To establish underground storage tank technical standards for the state
provided they are in all cases consistent with those provided by the federal act;
(20) To take ail necessary steps to ensure that the administration of this chapter
is consistent with and equivalent to the provisions of the federal act and any standards,
rules, or regulations, promulgated under such act; and
(21) To exercise all incidental powers necessary to carry out the purposes of this
chapter.
(b) The powers and duties provided for in subsection (a) of this Code section may
be exercised and performed by the director through such duly authorized employees of
the department as the director deems necessary and proper.
(Code 1981, § 12-13-6, enacted by Ga. L 1988, p. 2072, § 1.)
12-13-7. Performance standards applicable until rules and regulations effective.
Until the effective date of rules and regulations adopted by the board pursuant to Code
Section 12-13-5, no person may install an underground storage tank for the purpose of
storing regulated substances unless such tank meets the performance standards
established pursuant to the federal act.
(Code 1981, S 12-13-7, enacted by Ga. L. 1988, p. 2072, § 1.)
12-13-8. Investigations.
(a) The director, an authorized employee of the department, or an authorized
contractor or agent of the department, upon presentation of his or her credentials, shall
have a right to enter upon, to, or through premises of persons subject to this chapter, or
premises whereon a violation of this chapter or the rules and regulations adopted
pursuant to this chapter is reasonably believed to be occurring or is reasonably believed
to be about to occur, to investigate, take samples of, and copy all records relating to the
storage of regulated substances in underground tanks, and to inspect for compliance with
the requirements imposed under this chapter or the rules and regulations adopted
pursuant to this chapter, or to determine whether such a violation or threatened violation
exists.
(b) In the event any person does not consent to an inspection or investigation, the
director or an authorized employee of the department shall have the power to seek a
warrant authorizing the inspection or investigation.
(c) The director, an authorized employee of the department, or an authorized
contractor or agent of the department, upon presentation of his or her credentials, shall
have a right to enter upon, to, or through premises of persons subject to this chapter or
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premises whereon a release of a regulated substance in violation of this chapter or the
rules and regulations adopted pursuant to this chapter is reasonably believed to be
occurring or is reasonably believed to have previously occurred to investigate, take
samples, copy all records relating to storage of regulated substances in underground
storage tanks, and inspect for compliance with the requirements imposed under this
chapter or the rules and regulations adopted pursuant to this chapter in order to
determine whether such a current release or past release exists and to conduct
appropriate corrective action for any release which may currently exist or may have
existed.
(Code 1981, § 12-13-8, enacted by Ga. L 1988, p. 2072, § 1; Ga. L 1994, p. 804, § 2.)
12-13-9. Establishing financial responsibility; claims against guarantor; Underground
Storage Tank Trust Fund.
(a) The board shall promulgate regulations containing requirements for maintaining
evidence of financial responsibility as deemed necessary and desirable for taking
corrective action and for compensation of third parties for bodily injury and property
damage caused by sudden and nonsudden accidental releases arising from operating an
underground storage tank.
(b) Financial responsibility required by this Code section may be established in
accordance with regulations promulgated by the board by any one or combination of the
following: insurance, guarantee, surety bond, letter of credit, qualification as a self-insurer,
or any other method satisfactory to the board. In promulgating requirements under this
Code section, the board is authorized to specify policy or other contractual terms,
conditions, or defenses which are necessary or are acceptable in establishing such
evidence of financial responsibility in order to effectuate the purposes of this chapter and
comply with financial responsibility requirements.
(c) Financial responsibility programs established pursuant to this chapter and
administered by the division may be submitted as evidence of financial responsibility
required under this chapter.
(d) In any case where the owner or operator is in bankruptcy, reorganization, or
arrangement pursuant to the federal Bankruptcy Code or where, with reasonable
diligence, jurisdiction in any state court or the federal courts cannot be obtained over an
owner or operator likely to be solvent at the time of judgment, any claim arising from
conduct for which evidence of financial responsibility must be provided under this Code
section may be asserted directly against the guarantor providing such evidence of
financial responsibility. In the case of any action pursuant to this subsection, such
guarantor shall be entitled to invoke all rights and defenses which would have been
available to the owner or operator if any action had been brought against the owner or
operator by the claimant and which would have been available to the guarantor if any
action had been brought against the owner or operator by the claimant and which would
have been available to the guarantor if an action had been brought against the guarantor
by the owner or operator.
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(e) The total liability of any guarantor shall be limited to the aggregate amount
which the guarantor has provided as evidence of financial responsibility to the owner or
operator under this Code section. Nothing in this Code section shall be construed to limit
any other state or federal statutory, contractual, or common law liability of a guarantor to
its owner or operator including, but not limited to, the liability of such guarantor for bad
faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in
this Code section shall be construed to diminish the liability of any person under Sections
107 and 111 of the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. Section 9601, et seq., as amended by P.L 99-499, 1986.
(f) There is hereby established the Underground Storage Tank Trust Fund. The
director shall serve as trustee of this fund. The principal of the moneys deposited in such
fund pursuant to Code Section 12-13-10 may be expended by the director for the
following purposes:
(1) To take whatever emergency action is necessary or appropriate to assure that
the public health or safety is not threatened whenever there is a release or substantial
threat of a release of regulated substances from an underground storage tank;
(2) To take preventive or corrective actions where the release of the regulated
substances presents an actual or potential threat to human health or the environment
where the owner or operator has not been identified or is unable, as determined by the
director, to perform corrective action, including but not limited to, provisions for providing
alternative water supplies;
(3) To provide compensation for third-party liabilities; provided, however, that any
such expenditure shall be subject to the following limitations:
(A) A property owner shall not be considered a third party if the property was
transferred by the owner or operator of an underground storage tank in anticipation of
damage due to a release;
(B) Third-party liability property damage shall be reimbursed from the Underground
Storage Tank Trust Fund based on the rental costs of comparable property during the
period of loss of use up to a maximum amount equal to the fair market value. In the case
of property that is actually destroyed as a result of a petroleum release, reimbursement
shall be an amount necessary to replace or repair the destroyed property, whichever is
less; and
(C) Payments for third-party liability damages, as defined in this chapter, shall never
exceed the amount of the Underground Storage Tank Trust Fund coverage as provided
in this chapter for any owner or operator and shall not include payments for any claims
for attorney's fees for third-party claimants or punitive damages or mental anguish;
(4) To pay for any portion of the administrative cost of administering the
Underground Storage Tank Trust Fund which exceeds the amount of interest earned on
the corpus of such fund; provided, however, that no more than 10 percent of the fees
collected annually pursuant to subsection (a) of Code Section 12-13-10 shall be used for
such purpose;
(5) To provide reimbursements to eligible participating owners and operators who
have conducted corrective action; and
(6) To provide payments to state contractors for eligible participating owners and
operators who are unable, as determined by the director, to conduct corrective action for
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petroleum releases from underground storage tanks.
(g) Any interest earned upon the corpus of the Underground Storage Tank Trust
Fund shall not become a part thereof but shall be paid over to the division to be utilized
by the division for administration of the state Underground Storage Tank Program. Any
such funds not expended for this purpose in the fiscal year in which they are generated
shall be deposited in the state treasury, provided that nothing in this Code section shall
be construed so as to allow the division to retain any funds required by the Constitution
of Georgia to be paid into the state treasury; provided, further, that the division shall
comply with all provisions of Part 1 of Article 4 of Chapter 12 of Title 45, known as the
"Budget Act," except Code Section 45-12-92, prior to expending any such funds.
(h) If any person chooses to make a claim against the fund and accepts payment
from the fund, then the state shall be subrogated to any cause of action that the claimant
may have to the extent of such payment or judgment. In any such action, the amount of
damages shall be proved by the division by submitting to the court a written report of the
amounts paid or owed from the fund to claimants. Such written report shall be admissible
in evidence and the amounts paid from or owed by the fund to the claimants stated
therein shall be presumed to be the amount of the damages.
(i) Notwithstanding any other provisions of law to the contrary, the Underground
Storage Tank Trust Fund shall not be considered an insurance company or insurer under
the laws of this state.
(Code 1981, § 12-13-9, enacted by Ga. L 1988, p. 2072, § 1; Ga. L. 1989, p. 14, § 12;
Ga. L 1994, p. 804, §§ 3, 4.)
12-13-10. Environmental assurance fees; late participation fee.
(a) In order to participate in the liability limitations and reimbursement benefits of
the Underground Storage Tank Trust Fund, a potential claimant shall pay to the division
his or her share of an environmental assurance fee on each gallon of petroleum products
imported into this state. Such fees shall be established by the board in such amount as
is sufficient to assure the funding of emergency, preventive, or corrective actions
necessary when public health or safety is, or potentially may be, threatened from a
release of regulated substances from an underground storage tank, at a rate not to
exceed 1.0$ per gallon. This fee shall be collected by the terminal operator upon request
of the owner or operator when the petroleum is removed from a terminal by the person
who sells the petroleum, or if the petroleum product will never be stored in a terminal in
this state then by the importer thereof, and paid to the department. Proof of such
payment shall be provided the owner or operator. Exchanges of petroleum products on
a gallon-for-gaJlon basis within a terminal shall be exempt from this fee. Petroleum
product which is subsequently exported from this state is exempt from this fee.
(b) Environmental assurance fees as specified in subsection (a) of this Code
section shall be paid into the trust fund until the unobligated principal balance of the trust
fund equals or exceeds $50 million, at which time no environmental assurance fees shall
be levied unless the balance in the trust fund is less than or equal to an unobligated
balance of $30 million, in which case the collection of the environmental assurance fee
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will resume within 180 days following the end of the month in which such unobligated
balance occurs.
(c) If an underground storage tank was in use for the storage of jet turbine fuel
prior to the owner's or operator's participation in the Underground Storage Tank Trust
Fund, the director shall require, as a condition for beginning participation in the fund, the
owner or operator to pay into the fund a late participation fee which shall be an amount
equal to the environmental assurance fee provided for in subsection (a) of this Code
section which would have been paid by the owner or operator, as if the owner or operator
had been a participant in the fund, during a period beginning on July 1,1988, and ending
on the beginning date of participation in the fund or beginning on the date the jet turbine
fuel underground storage tank was first used, if after July 1, 1988, and ending on the
beginning date of participation in the fund.
(Code 1981, § 12-13-10, enacted by Ga. L 1988, p. 2072, § 1; Ga. L 1989, p. 256, § 2;
Ga. L 1991, p. 1421, § 1; Ga. L 1994, p. 804, § 5.)
12-13-11. Corrective action for release of petroleum product into environment.
(a) Whenever the director has reason to believe that there is or has been a release
of a petroleum product into the environment from an underground tank, regardless of the
time at which storage of such material occurred, and has reason to believe that such
release poses a danger to health or the environment, the director shall obtain corrective
action for such release from any current owner or operator or from any past owner or
operator who has contributed to such release, either individually or jointly. Such
corrective action shall be performed in accordance with a plan approved by the director.
(b) If the tank owner or operator is unable, as determined by the director, to
perform corrective action as provided for in subsection (a) of this Code section, the
director may undertake preventive or corrective actions utilizing funds from the
Underground Storage Tank Trust Fund.
(b.1) The owner or operator of an underground storage tank shall be liable for all
costs of preventive, corrective, and enforcement actions incurred by the State of Georgia
as a result of a release or a substantial threat of release of a petroleum product from an
underground storage tank unless the owner or operator, or both, are participants in the
Underground Storage Tank Trust Fund and enter into a consent agreement with the state.
In such consent agreement, at a minimum, the owner or operator, or both, must agree
that:
(1) Whenever costs have been incurred by the director pursuant to this subsection
for taking corrective or enforcement action, the owner or operator shall be liable for the
first $10,000.00 per occurrence for corrective action, such funds to be paid into the
Underground Storage Tank Trust Fund within 90 days of notice by the director;
(2) The State of Georgia and the Underground Storage Tank Trust Fund are
relieved of all liability for loss of business, damages, and taking of property associated
with the corrective action;
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(3) The division or its contractors may enter upon the property of the owner or
operator or the real property where the underground storage tank of the owner or
operator is located if the real property owner and the underground storage tank owner
or operator are not the same person, at such time and in such manner as deemed
necessary to effectuate corrective action to protect health and the environment, such
right-of-entry by the division or its contractors being implied by the willingness of the real
property owner to allow the underground storage tank of the owner or operator to be
placed on the real property of the real property owner;
(4) The owner or operator shall be fully responsible for replacement or retrofitting
or both of leaking tanks and associated piping or shall allow division contractors to refill
excavated areas resulting from removal of leaking tanks and associated piping with clean
earth to its original elevation;
(5) The liability of the state and the state Underground Storage Tank Trust Fund
shall not exceed $1 million per occurrence; and
(6) Such other provisions as are deemed appropriate by the board to ensure
adequate protection of health and the environment.
(c) To encourage voluntary corrective action, an owner or operator conducting
corrective action under this chapter and participating in the Underground Storage Tank
Trust Fund, either through the owner's or operator's own personnel or through response
action contractors or subcontractors, is entitled, as evidenced by an executed corrective
action agreement with the division, to reimbursement of reasonable cost from the trust
fund, subject to the following provisions:
(1) Prior to initiating such corrective action, the owner or operator must submit to
and receive approval from the division of the proposed corrective action plan, together
with projected costs of the corrective action, and once approved the owner or operator
shall not substantially deviate from the approved costs and corrective actions without the
prior approval of the division;
(2) The owner or operator or the owner's or operator's agents shall keep and
preserve suitable records demonstrating compliance with the approved corrective action
plan and all invoices and financial records associated with costs for which reimbursement
will be requested;
(3) Upon receipt of a complete corrective action plan, the director shall make a
determination and provide written notice as to whether the owner or operator responsible
for corrective action is eligible or ineligible for reimbursement of costs. Should the director
determine the owner or operator is ineligible, he or she shall include in his or her written
notice an explanation setting forth in detail the reasons for the determination;
(4) The owner or operator shall submit to the director a written notice that
corrective action has been completed within 30 days of completing corrective action;
(5) No later than 30 days from the submission of the notice as required by
paragraph (4) of this subsection, the owner or operator must submit an application for
reimbursement of costs in accordance with criteria established by the director. The
application for reimbursement must include the total amount of the corrective action and
the amount of reimbursement sought;
(6) The first $10,000.00 of eligible costs incurred by the owner or operator are not
eligible for reimbursement from the trust fund nor are costs for replacement or retrofitting
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of leaking tanks and associated piping; and
(7) No costs may be reimbursed to the owner or operator until such time as
corrective action has been completed in accordance with the plan approved by the
division; provided, however, that interim payments may be made if the corrective action
is being conducted in accordance with a plan approved by the division which allows
interim payments.
(d) Notwithstanding the provisions of subsections (b), (b.1), and (c) of this Code
section, should the division find that any of the following situations exist, the owner or
operator, or both, shall be liable for 100 percent of costs associated with preventive,
corrective, or enforcement actions necessary to protect health or the environment:
(1) The release was due to willful or negligent actions by the owner or operator;
(2) The owner or operator is in arrears for moneys owed to the Underground
Storage Tank Trust Fund;
(3) The owner or operator moves in any way to obstruct the efforts of the division
or its contractors to effectuate corrective action; or
(4) The owner or operator of a petroleum product underground tank has stored
a petroleum product, after July 1,1988, in such tank which has not been subjected to the
environmental assurance fee imposed in subsection (a) of Code Section 12-13-10 and the
late participation fee provided for in subsection (c) of Code Section 12-13-10.
(e) Notwithstanding the provisions of subsections (b), (b.1), and (c) of this Code
section, should the division find, based upon rules promulgated by the board, that any
of the following situations exist, the owner or operator, or both, may be liable for up to
100 percent of costs associated with preventive, corrective, or enforcement actions
necessary to protect health or the environment:
(1) The release is from a tank not registered in accordance with Code Section
12-13-13;
(2) The owner or operator fails to comply with any provision of the agreement
required by subsection (b), (b.1), or (c) of this Code section; or
(3) The owner or operator has failed to comply with any provisions of this chapter
or rules promulgated under this chapter.
(f) If no underground storage tank owner or operator can be found, the director
may undertake preventive or corrective actions utilizing funds from the Underground
Storage Tank Trust Fund or any appropriate federal funds as provided by the federal act,
and any real property owner by virtue of the fact that he or she has allowed these
underground storage tanks to exist or be placed on his or her real property shall be
deemed to have granted permission to the division or its contractors or agents to enter
its real property to investigate and take samples and, when deemed necessary by the
director, to effectuate the necessary corrective action to protect health and the
environment.
(Code 1981, § 12-13-11, enacted by Ga. L 1988, p. 2072, § 1; Ga. L 1989, p. 256, § 3;
Ga. L 1994, p. 804, § 6.)
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12-13-12. Recovery in event of discharge or threat of discharge of regulated
substance; lien.
(a) Except as otherwise provided for in subsections (b), (b.1), and (c) of Code
Section 12-13-11, in the event of any discharge or threatened discharge of a regulated
substance, the state or any of its agencies may recover in a civil action from any owner,
operator, or other responsible person all costs incurred by the state or any of its agencies
or moneys from the federal Leaking Underground Storage Tank Trust Fund in the
assessment and the cleanup of any release of a regulated substance and all costs
incurred in the prevention, abatement, or removal of any threatened discharge of a
regulated substance, including reasonable attorney's fees and any other necessary costs
of response incurred by the state or any of its agencies. All moneys recovered for costs
incurred under the Underground Storage Tank Trust Fund shall be deposited into the
principal of the Underground Storage Tank Trust Fund. The state shall have a lien on the
real property on which the underground storage tanks which caused the discharge are
located, even if owned by a person other than the owner or operator, provided the owner
or operator is in privy with the real property owner.
(b) The lien provided for above shall be perfected by filing a certified copy of any
judgment obtained against the owner or operator with the Clerk of Superior Court for
entry on the general execution docket in the county in which any real property of the
owner or operator is located or where the real property on which the leaking underground
storage tanks were operated is located.
(Code 1981, § 12-13-12, enacted by Ga. L 1988, p. 2072, § 1; Ga. L 1994, p. 804, § 7.)
12-13-13. Notification by owner of underground storage tank.
(a) Unless such notification has been previously provided to the division or to the
U.S. Environmental Protection Agency in accordance with the federal act, any person who
owns an underground storage tank shall notify the division, on forms provided by the
division, within a reasonable number of days which the director shall specify, indicating
the age, size, type, location, and uses of such tanks, identifying the regulated substances
stored, and providing any other information which may be deemed relevant under such
conditions as the director may prescribe.
(b) Unless such notification has been previously provided to the division or to the
U.S. Environmental Protection Agency in accordance with the federal act, any person who
owns an underground storage tank taken out of service after January 1,1974, shall notify
the division in writing, on forms provided by the division, within a reasonable number of
days which the director shall specify, indicating the date the tank was taken out of
operation, the age of the tank at the date taken out of operation, the size, type, and
location of the tank, and the type and quantity of substances left stored in such tank on
the date taken out of operation and shall provide any other information which may be
deemed relevant under such conditions as the director may prescribe.
(c) Any owner who brings into use an underground storage tank after July 1,1988,
shall notify the division, on forms provided by the division, within 30 days of the existence
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of such tank, specifying the age, size, type, location, and uses of such tank.
(d) Beginning 30 days after the board issues new tank performance standard rules
and regulations pursuant to Code Section 12-13-5, any person who sells a tank intended
to be used as an underground storage tank shall notify the purchaser of such tank of the
owner's notification requirements pursuant to this Code section.
(e) (1) The owner or operator of an underground storage tank in use or capable
of being used shall provide to the division an annual underground storage tank
notification for all underground storage tanks for which an initial notification has previously
been given or should have been given pursuant to this Code section. Such notification
shall be provided on forms as prescribed by the division and shall be submitted in
accordance with rules and regulations promulgated by the board. It shall be a violation
of this Code section for an owner or operator of an underground storage tank to fail to
file an annual notification for an underground storage tank in accordance with such rules
and regulations. The division shall issue confirmation of notification to the owner or
operator for each facility with regulated underground storage tanks for which annual
underground storage tank notifications have been submitted.
(2) Beginning 180 days after rules and regulations are promulgated by the board
establishing the requirements for annual tank notification and confirmation of notification
as provided in paragraph (1) of this subsection, it shall be a violation of this Code section
for any person to place or cause to be placed regulated substances in an underground
storage tank for which the tank owner or operator has failed to provide the annual tank
notification to the division as required in this subsection.
(Code 1981, S 12-13-13, enacted by Ga. L 1988, p. 2072, § 1; Ga. L 1989, p. 14, § 12;
Ga. L 1994, p. 804, § 8.)
12-13-14. Corrective action for violations of chapter, rules and regulations, or orders
and for release of regulated substance into environment.
(a) Whenever the director has reason to believe that a violation of any provision
of this chapter, any rule or regulation of the board, or any order of the director has
occurred, he shall attempt to remedy the same by conference, conciliation, or persuasion.
In case of failure of such conference, conciliation, or persuasion to correct or remedy any
violation, the director may issue an order directed to such violator or violators. The order
shall specify the provisions of the chapter or rules or regulations or order alleged to have
been violated and may order that necessary corrective action be taken within a
reasonable time to be prescribed in the order. An order issued by the director under this
Code section shall be signed by the director. Any such order shall become final unless
the person or persons named therein request in writing a hearing pursuant to Code
Section 12-13-16.
(b) Whenever the director has reason to believe that there is or has been a release
of a regulated substance into the environment from an underground tank, regardless of
the time at which storage of such material occurred, and has reason to believe that such
release poses a danger to health or the environment, the director shall attempt to obtain
corrective action for such release by conference, conciliation, or persuasion. In the case
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of failure of such conference, conciliation, or persuasion to obtain corrective action, the
director may issue an order directed to any person, including any current owner or
operator or any past owner or operator who has contributed to such release. The order
may direct that necessary corrective action may be taken within a reasonable time to be
prescribed in the order.
(Code 1981, § 12-13-14, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L 1994, p. 804, § 9.)
12-13-15. Injunctions and restraining orders.
Whenever, in the judgment of the director, any person has engaged in or is about
to engage in any act or practice which constitutes or would constitute a violation of this
chapter, the rules and regulations, or any order or permit conditions, he may make
application to the superior court of the county in which the violative act or practice has
been or is about to be engaged in or in which the owner or operator resides for an order
enjoining such act or practice or for an order requiring compliance with this chapter, the
rules and regulations, or the order; and upon a showing by the director that such person
has engaged in or is about to engage in any such violative act or practice, a permanent
or temporary injunction, restraining order, or other order shall be granted without the
necessity of showing the lack of an adequate remedy at law.
(Code 1981, § 12-13-15, enacted by Ga. L. 1988, p. 2072, § 1.)
12-13-16. Hearings and review.
All hearings on and review of contested matters and orders and all hearings on
and review of any other enforcement actions or orders under this chapter shall be
provided and conducted in accordance with subsection (c) of Code Section 12-2-2. The
hearing and review procedure provided in such Code section is to the exclusion of all
other means of hearing or review.
(Code 1981, § 12-13-16, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L. 1989, p. 14, § 12.)
12-13-17. Judgment in accordance with division's order.
Any order of a hearing officer issued after a hearing as provided in Code Section
12-13-16 or any order of the director issued pursuant to Code Section 12-13-14, either
unappealed from as provided in those Code sections or affirmed or modified on any
review or appeal pursuant to Code Section 12-13-16, from which no further review is
taken or allowed under Code Section 12-13-16 may be filed, as unappealed from or as
affirmed or modified, if reviewed or appealed, by certified copy from the director in
superior court of the county wherein the person under order resides or, if said person is
a corporation, in the county wherein the corporation maintains its principal place of
business or in the county wherein the violation occurred. The superior court shall then
render judgment in accordance therewith and notify the parties. Such judgment shall have
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the same effect and all proceedings in relation thereto shall be the same as though said
judgment had been rendered in an action duly heard and determined by such court.
(Code 1981, § 12-13-17, enacted by Ga. L 1988, p. 2072, § 1.)
12-13-18. Required compliance with chapter; proof that petroleum subjected to
environmental fee; violations of chapter; access to property.
(a) It shall be unlawful for any person to engage in the storage of regulated
substances in underground tanks except in such a manner so as to conform to and
comply with any provisions of this chapter or any of the rules, regulations, and orders
established under this chapter. The owner or operator of any underground storage tank
for petroleum shall maintain proof that all petroleum stored in such tank after July 1,1988,
was subjected to the environmental fee imposed in subsection (a) of Code Section
12-13-10.
(b) Notwithstanding the provisions of subsection (a) of this Code section, it shall
be a violation of this chapter to:
(1) Cause or permit the release of a regulated substance from an underground
storage tank into the environment; or
(2) Install an underground storage tank that does not meet the minimum standards
pursuant to this chapter or the rules promulgated pursuant to this chapter.
(c) Any real property owner adjoining a leaking underground storage tank site who
refuses to allow either the owner or operator or the division, through its agents or
contractors, access for purposes of providing corrective action for any pollution that may
have migrated onto the adjoining real property from the leaking underground storage tank
site shall be responsible for the remediation and cleanup of that pollution plume should
it migrate off that real property onto the real property of another.
(Code 1981, § 12-13-18, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L 1994, p. 804, § 10.)
12-13-19. Violations; imposition of penalties.
(a) If a person fails to comply with an order under Code Section 12-13-14 within
the time specified in the order, he shall be liable for a civil penalty of not more than
$25,000.00 for each day of continued noncompliance.
(b) Any person who fails to notify or submits false information pursuant to any
provision of this chapter shall be subject to a civil penalty not to exceed $10,000.00 for
each tank for which notification is not given or for each time false information is submitted.
(c) Any person who violates any provision of this chapter or any requirement,
standard, rule, or regulation promulgated by the board pursuant to this chapter shall be
subject to a civil penalty not to exceed $10,000.00 for each day of violation for each
underground storage tank in violation thereof.
(d) Any person not subject to the provisions of 18 U.S.C. Section 1905 who
knowingly and willfully divulges or discloses any information entitled to protection under
Code Section 12-13-21 shall, upon conviction, be subject to a fine of not more than
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$5,000.00 or to imprisonment not to exceed one year, or both.
(e) Whenever the director has reason to believe that any person has violated any
provision of this chapter or any rule or regulation effective under this chapter or has failed
or refused to comply with any final order or emergency order of the director, he may
upon written request cause a hearing to be conducted before a hearing officer appointed
by the board. Upon finding that said person has violated any provision of this chapter or
any rule or regulation effective under this chapter or has failed or refused to comply with
any final order or emergency order of the director, said hearing officer shall issue his
decision imposing civil penalties as provided in this Code section. Such hearing and any
administrative or judicial review thereof shall be conducted in accordance with Code
Section 12-13-16.
(f) In rendering a decision under this Code section imposing civil penalties, the
hearing officer shall consider all factors which are relevant including, but not limited to,
the following:
(1) The amount of civil penalty necessary to ensure immediate and continued
compliance and the extent to which the violator may have profited by failing or delaying
to comply;
(2) The character and degree of impact of the violation or failure on the natural
resources of the state, especially any rare or unique natural phenomena;
(3) The conduct of the person incurring the civil penalty in promptly taking all
feasible steps or procedures necessary or appropriate to comply or to correct the
violation or failure;
(4) Any prior violations or failures to comply by such person with statutes, rules,
regulations, or orders administered, adopted, or issued by the director;
(5) The character and degree of injury to or interference with public health or safety
which is caused or threatened to be caused by such violation or failure; and
(6) The character and degree of injury to or interference with reasonable use of
property which is caused or threatened to be caused by such violation or failure.
(g) All civil penalties recovered by the director as provided in this Code section
shall be paid into the Underground Storage Tank Trust Fund established pursuant to the
provisions of Code Section 12-13-9.
(Code 1981, § 12-13-19, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L 1994, p. 804, §§
11. 12.)
12-13-20. Emergency orders; hearing.
Whenever the director finds that an emergency exists requiring immediate action to
protect the public health, safety, or well-being, the director may issue an order declaring
the existence of such an emergency and requiring that such action be taken to meet the
emergency as the director specifies. Such order shall be effective immediately. Any
person to whom such order is directed shall comply therewith immediately but on
application to the director shall be afforded a hearing within 48 hours. On the basis of
such hearing, the director may continue such order in effect, revoke it, or modify it.
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(Code 1981, § 12-13-20, enacted by Ga. L. 1988, p. 2072, § 1; Ga. L 1994, p. 804, § 13.)
12-13-21. Public access to records.
(a) Any records, reports, or information obtained from any person pursuant to this
chapter shall be available to the public, except that upon a showing satisfactory to the
director by any person that such records, reports, or information or a particular part
thereof to which the director or any officer, employee, or representative thereof has
access pursuant to this chapter, if made public, would divulge information entitled to
protection under 18 U.S.C. Section 1905, such information or particular portion thereof
shall be considered confidential in accordance with the purposes of that statute. However,
such confidential record, report, document, or information may be disclosed to other
officers, employees, or authorized representatives of the State of Georgia or the United
States concerned with carrying out this chapter or the federal act or, when relevant, in
any proceedings under this chapter or the federal act.
(b) In submitting information pursuant to this chapter, a person required to provide
such information may:
(1) Designate the information which such person believes is entitled to protection
under this Code section; and
(2) Submit such designated information separately from other data submitted under
this Code section.
(Code 1981, § 12-13-21, enacted by Ga. L. 1988, p. 2072, § 1.)
12-13-22. Representation by Attorney General.
It shall be the duty of the Attorney General or his representative to represent the
director in all actions in connection with this chapter.
(Code 1981, s 12-13-22, enacted by Ga. L. 1988, p. 2072, § 1.)
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RULES
OF
GEORGIA DEPARTMENT OF NATURAL RESOURCES
ENVIRONMENTAL PROTECTION DIVISION
CHAPTER 391-3-15
UNDERGROUND STORAGE TANK MANAGEMENT
TABLE OF CONTENTS
391-3-15-.01 General Provisions. Amended
391-3-15-.02 Definitions, UST Exclusions, UST Deferrals, and
Lender Liability. Amended
391-3-15-.03 Confidentiality of Information. Amended
391-3-15-.04 Interim Prohibition for Deferred UST Systems.
Amended
391-3-15-.05 UST Systems: Design, Construction, Installation
and Notification. Amended
391-3-15-.06 General Operating Requirements. Amended
391-3-15-.07 Release Detection. Amended
391-3-15-.08 Release Reporting, Investigation, and Confirmation.
Amended
391-3-15-.09 Release Response and Corrective Action for UST
Systems Containing Petroleum. Amended
391-3-15-.10 Release Response and Corrective Action for UST
Systems Containing Hazardous Substances. Amended
391-3-15-.il Out-of-Service UST Systems and Closure. Amended
391-3-15-.12 UST Systems Containing Petroleum; Financial
Responsibility Requirements. Amended
391-3-15-.13 Georgia Underground Storage Tank (GUST) Trust Fund.
Amended
391-3-15-.14 Enforcement.
391-3-15-.15 Variances.
6/25/96
Effective 9/23/96
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391-3-15-.01 General Provisions. Amended.
(1) Purpose. These Rules and Regulations (Rules) are promulgated
for the purpose of protecting and enhancing the quality of
Georgia's environment and of protecting the public health, safety,
and well-being of its citizens, and of instituting and maintaining
a comprehensive Statewide program for the management of regulated
substances stored in underground tanks.
(2) Authori ty.
(a) These Rules are issued under the authority of the Georgia
Underground Storage Tank Act (GUSTA), Official Code of Georgia
Annotated (O.C.G.A.) § 12-13-1 et seq. (1988), as amended.
(b) The Director of the Environmental Protection Division
(Director) or his authorized representative or an authorized
contractor or agent of the Department upon presentation of his
credentials, shall have a right to enter upon, into or through
premises of persons subject to GUSTA, or premises whereon a
violation of GUSTA or these Rules is reasonably believed to be
occurring or causing impact or is reasonably believed to be about
to occur or cause impact. The Director or his authorized
representative shall have the right to investigate, take samples,
copy all records relating to underground storage tanks, and inspect
in accordance with the following purposes:
1. to determine whether any person subject to the requirements
of GUSTA is in compliance with these Rules;
2. to investigate conditions relating to underground storage
tanks (UST) or UST management practices where the Director is in
possession of information sufficient to form a reasonable belief
that a violation of GUSTA or these Rules is occurring or is about
to occur; or
3. to determine whether there has been a violation of any of the
provisions of GUSTA or these Rules, or any permit or order issued
pursuant to GUSTA and these Rules.
(c) In the event any person does not consent to an inspection or
investigation, the Director or his authorized representative may
seek to obtain a warrant authorizing the inspection or
investigation pursuant to O.C.G.A. § 12-13-8(b) and § 12-2-2(d).
(d) EPD or its contractors may enter upon the property of the
owner or operator, at such time and in such manner as deemed
necessary, to effectuate the necessary corrective action to protect
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health and the environment.
(e) The Director, an authorized employee of the Department, or
an authorized contractor or agent of the Department, upon
presentation of his or her credentials, shall have a right to enter
upon, to, or through premises of persons subject to GUSTA or
premises whereon a release of a regulated substance in violation of
GUSTA or the rules and regulations adopted pursuant to GUSTA is
reasonably believed to be occurring or is reasonably believed to
have previously occurred to investigate, take samples, copy all
records relating to storage of regulated substances in underground
storage tanks, and inspect for compliance with the requirements
imposed under GUSTA or these Rules, or any permit or order issued
pursuant to GUSTA or these Rules in order to determine whether such
a current release or past release exists and to conduct appropriate
corrective action for any release which may currently exist or may
have existed.
(3) Reference
(a) Any reference in these Rules to standards, procedures, and
requirements of Title 40 of the Code of Federal Regulations (40
CFR) Part 280 (1995) shall constitute the full adoption by
reference of the Part, Subpart, and Paragraph so referenced
including any notes and appendices as may be associated, unless
otherwise stated.
(b) When used in any such provisions as may be adopted from 40
CFR Part 280 (1995): implementing agency or state implementing
agency shall mean Environmental Protection Division (EPD); and
Regional Administrator or Director of the implementing agency shall
mean Director of the Environmental Protection Division. Unless
specifically indicated otherwise, any reference to implementation
by, submissions to, or inspections, investigations or enforcement
by the EPA in such Regulations as may be adopted by reference by
these Rules shall be construed to mean EPD unless such
interpretation would be inconsistent with the intent of the Georgia
Underground Storage Tank Act (GUSTA).
(c) Any reference in 40 CFR Part 280 (1995), or in any provisions
adopted by reference from 40 CFR Part 280 (1995), to EPA forms or
reports shall mean EPD forms and reports as may be provided by the
Director.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.02 Definitions, UST Exclusions, and UST Deferrals.
Amended.
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(1) Definitions. 40 CFR §§ 280.12 and 280.92 (1995) are hereby
incorporated by reference. The following words or terms shall have
the meanings set forth herein when used in these Rules:
(a) "Board" means the Board of Natural Resources of the State of
Georgia.
(b) "Control of" means either the right or authority to govern
receipt or removal from an underground storage tank any regulated
substances.
(c) "Controlling interest" means direct or indirect ownership of
at least 50 percent of the voting stock of another entity.
(d) "Corrective action" means those activities required for
response to and cleanup of releases of regulated substances from
underground storage tanks, including, but not limited to, initial
response, initial abatement measures and site check, initial site
characterization, free product removal, investigations for soil and
groundwater cleanup, and preparation and implementation of a
corrective action plan.
(e) "Department" means the Department of Natural Resources of the
State of Georgia.
(f) "Director" means the Director of the Environmental Protection
Division of the Department of Natural Resources.
(g) "EPD" means the Environmental Protection Division of the
Department of Natural Resources of the State of Georgia.
(h) "Federal Act" means the Solid Waste Disposal Act, 42 U.S.C.,
§ 3152 et seq.. as amended, particularly by the Hazardous and Solid
Waste Amendments of 1984, Public Law 98-616, 42 USC, § 6991 et
seq.. as amended by Public Law 99-499, 1986.
(i) "Guarantor" means any person, other than the owner or
operator, who provides evidence of financial responsibility for an
owner or operator.
(j) "Jobber" means anyone who distributes petroleum product from
a bulk storage plant to an UST owner or operator, or purchases
petroleum product from a terminal for distribution to an UST owner
or operator.
(k) "Nonoperational storage tank" means any UST in which
regulated substances were not deposited or from which regulated
substances were not dispensed after November 8, 1984.
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(1) "Operator" means any person in control of, or having
responsibility for, the daily operation of an UST.
(m) "Owner" means, in the case of an UST system in use on
November 8, 1984, or brought into use or capable of being used
after that date, any person who owns an UST system used for or
capable of being used for the storage or dispensing of regulated
substances and, in the case of any UST system in use before
November 8, 1984, but no longer in use or capable of being used on
or after November 8, 1984, any person who owned such UST
immediately before the discontinuation of its use; provided,
however, such term shail not include any person who, without
participating in the management of an underground storage tank and
otherwise not engaged in petroleum production, refining, and
marketing, holds indicia of ownership primarily to protect that
person's security interest in the underground storage tank.
(n) "Participating owner or operator" means an owner or operator
of an UST who' participates in the GUST Trust Fund as a financial
assurance mechanism.
(o) "Person" means an individual, trust, firm, joint-stock
company, joint-venture, corporation, including a government
corporation, partnership, association, municipality, commission,
political subdivision, or any agency, board, department, or bureau
of this State or of any other state or of the Federal government.
(p)"Petroleum" means petroleum, including crude oil or any
fraction thereof which is liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per
square inch absolute).
(q) "Petroleum product" means petroleum, including gasoline,
gasohol, diesel fuel, fuel oils including #2 fuel oil, kerosene,
and jet turbine fuel.
(r) "Plume" means the area of groundwater containing
concentrations of petroleum constituents or other regulated
substances above Estimated Quantitation Limits as established in
Test Methods for Evaluating Solid Waste (United States
Environmental Protection Agency, Office of Solid •Waste and
Emergency Response, SW-846, Third Edition, as revised) or in an
alternate method approved by EPD.
(s) "Regulated substance" means any substance defined in §
101(14) of the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C., § 9601, as amended by P.L.
99-499, 1986, et seq.. and petroleum, including crude oil or any
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fraction thereof which is liquid at the standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per
square inch absolute), but not including any substance regulated as
a hazardous waste under the Georgia Hazardous Waste Management Act,
O.C.G.A. 12-8-60, as amended.
(t) "Release" means any spilling, leaking, emitting, discharging,
escaping, leaching, or disposing from an UST into groundwater,
surface water, or subsurface soils.
(u) "Release Response" means, in addition to certain corrective
action activities, those actions taken as initial response, initial
abatement measures and site check, initial site characterization,
and free product removal.
(v) "Responsibility for" means either the right or authority to
close an UST or maintain and repair an UST or take action for
compliance with all or part of the requirements of GUSTA and these
Rules.
(w) "Terminal" means a bulk storage facility for storing
petroleum products supplied by pipeline or marine vessel.
(x) "Third party liability" insofar as GUST Trust Fund usage is
concerned means liability for bodily injury or property damage
caused directly by a release of petroleum products from an
underground storage tank; however, it does not include or mean any
liability for bodily injury or property damage to the person or
property of the owner of the real property on which the USTs are
located.
1. As to bodily injury, specific physical bodily injury
proximately resulting from exposure, explosion, or fire caused by
the presence of a release from a regulated underground storage tank
and which is incurred by a person other than the owner or operator,
the landlord of the owner or operator, employees or agent of an
owner or operator, or employees or agents of the landlord of an
owner or operator; and
2. As to property damage, actual physical damage or damage due
to specific loss of normal use of property owned by a person other
than either the owner or operator of an underground storage tank
from which a release has occurred or the landlord of an owner or
operator of the underground storage tank from which a release has
occurred.
(y) "Trustee" means the Director of the Environmental Protection
Division of the Department of Natural Resources.
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(z) "Underground storage tank" or "UST" means any one or
combination of tanks, including underground pipes connected
thereto, which is used to contain an accumulation of regulated
substances and the volume of which, including the volume of the
underground pipes connected thereto, is 10 percent or more beneath
the surface of the ground.
(aa) "UST system" or "Tank System" means an underground storage
tank and its associated ancillary equipment and containment system,
if any.
(2) UST Exclusions. The term "underground storage tank" or "UST"
does not include any:
(a) Farm or residential tank of 1,100 gallons or less capacity
used for storing motor fuel for noncommercial purposes;
(b) Tank used for storing heating oil for consumptive use on the
premises where stored;
(c) Septic tank;
(d) Pipeline facility (including gathering lines) which is
regulated under:
1. the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. App.
1671 et seq.), or
2. the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C.
App. 2001 et sea.), or
3. which is an intrastate pipeline facility regulated under State
laws comparable to the provisions of the law referred to in
subparagraph (d)l. or (d)2. of this definition;
(e) Surface impoundment, pit, pond, or lagoon;
(f) Storm water or wastewater collection system;
(g) Flow-through process tank;
(h) Liquid trap or associated gathering lines directly related
to oil or gas production and gathering operations;
(i) Storage tank situated in an underground area (such as a
basement, cellar, mineworking, drift, shaft, or tunnel) if the
storage tank is situated upon or above the surface of the floor;
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(j) UST system holding hazardous wastes listed or identified
under Subtitle C of the Solid Waste Disposal Act, or a mixture of
such hazardous waste and other regulated substances;
(k) Wastewater treatment tank system that is part of a wastewater
treatment facility regulated under section 402 or 307 (b) of the
Clean Water Act;
(1) Equipment or machinery that contains regulated substances for
operational purposes such as hydraulic lift tank and electrical
equipment tank;
(m) UST system whose capacity is 110 gallons or less;
(n) UST system that contains a "de minimis" concentration of
regulated substances;
(0) Emergency spill or overflow containment UST system that is
expeditiously emptied after use; or
(p) Pipes connected to any tank which is described in
subparagraphs (a) through (o) of this definition.
(3) UST Deferrals. 40 CFR § 280.10 (c) and (d) (1995) are hereby
incorporated by reference.
(4) Lender Liability. 40 CFR Part 280, Subpart I (1995), as
added by 60 Fed. Reg. 173 (September 7, 1995), is hereby
incorporated by reference.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.03 Confidentiality of Information. Amended.
(1) Any records, reports, or information obtained from any person
by the Director under these Rules shall be available to the public
for inspection and copying at the expense of the person requesting
copies, except that upon a showing satisfactory to the Director by
any person that any records, reports, or information or any
particular part thereof, to which the Director has access under
these rules would, if made public, divulge information entitled to
protection or confidentiality under GUSTA, the Director shall
consider confidential such information or any particular portion
thereof in accordance with the purposes of GUSTA. However, such
records, reports, documents, or information may be disclosed to
officers, employees or authorized representatives of the United
States government or the State of Georgia concerned with carrying
out the terms of the Federal Act, or when required by any court in
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any proceedings under the Federal Act or under GUSTA.
(2) Any claim of confidentiality filed pursuant to this section
must be asserted at the time of initial submission of the record,
report, or information in question, or it shall be deemed waived.
(3) Any claim of confidentiality filed pursuant to this section
must be accompanied by a statement of the legal basis supporting
the claim of confidentiality.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.04 Interim Prohibition for Deferred UST Systems.
Amended. 40 CFR § 280.11 (1995) is hereby incorporated by
reference.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.05 UST Systems: Design, Construction, Installation and
Notification. Amended.
(1) 40 CFR Part 280, Subpart B (1995) is hereby incorporated by
reference.
(2) For purposes of performance standards for new UST systems,
as required in 40 CFR §280.20(d) (1995), any tank previously
installed and subsequently removed must be recertified by the
manufacturer or by an authorized representative of the manufacturer
or by a Georgia-registered Professional Engineer prior to
installation as an UST.
(3) For purposes of notification of USTs, as required in 40 CFR
§280.22 (1995), owners shall use forms as prescribed by the
Director.
(4) Annual Registration of USTs.
(a) Initially on or before May 1, 1995, and annually thereafter
on or before September 1, beginning September 1, 1996, the owner or
operator of an UST for which notification should have previously
been submitted pursuant to O.C.G.A. 12-13-13 and which has not been
properly closed in accordance with 391-3-15-.il, but is in use or
capable of being used, shall submit to EPD an annual UST
notification.
(b) The annual UST notification shall be submitted by the UST
owner for all USTs at all UST facilities on forms furnished by EPD
and shall provide such information as may reasonably be required by
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EPD which, at a minimum, shall include:
1. Name and address of facility at which USTs are located;
2. Name and address of owner and current operator of USTs at the
facility location in 1. above;
3. Size and identification of USTs at the facility location
indicated in 1. above;
4. (i) Certification that the financial responsibility
requirements of Rule 391-3-15-.12 have been met and the mechanism
utilized to provide such financial responsibility; and
(ii) If the mechanism is the Georgia Underground Storage Tank
Trust Fund, the financial assurance mechanism used for the $10,000
deductible.
5. Changes in owners, operators, upgrades, replacement of UST
systems and changes in service from either the initial notification
form filed or from the last annual notification filed, whichever is
later; and
6. Method of annual leak detection for lines and USTs.
(c) If an UST is brought into service during the year, a
confirmation of annual UST notification for the facility for the
year in which the UST was brought into service shall be issued by
EPD after the receipt of the initial notification of USTs, as
required under paragraph 391-3-15-.05(1).
(d) The confirmation of annual UST notification form, as
provided by EPD, for each underground storage tank facility shall
be conspicuously posted and displayed at each UST facility, an
alternate location approved by EPD or a copy of such form shall be
provided by the facility to each person placing regulated
substances into the UST. It shall be a violation of O.C.G.A. 12-
13-5 and these Rules to either fail to file an annual UST
notification or to fail to conspicuously post and display the
confirmation of the annual UST notification at an UST facility or
provide a copy such that any person placing regulated substances in
an UST can determine that the confirmation of annual UST
notification is current.
(e) Beginning 180 days from the effective date of these Rules,
no person may place a regulated substance in a regulated UST unless
they have verified that the facility has a valid confirmation of
annual UST notification form. Such verification shall be performed
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on or after September 1, 1995, and annually thereafter beginning on
January 1 of each year.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.06 General Operating Requirements. Amended. 4 0 CFR
Part 280, Subpart C 1995) is hereby incorporated by reference.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.07 Release Detection. Amended.
(1) 40 CFR Part 280, Subpart D (1995), is hereby incorporated by
reference.
(2) Any owner or operator shall, upon request from EPD, certify
on forms prescribed by the Director that the UST facility of the
owner or operator is in compliance with release detection
requirements as promulgated in 40 CFR Part 280, Subpart D (1995).
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.08 Release Reporting, Investigation, and Confirmation.
Amended. 40 CFR Part 280, Subpart E (1995) is hereby incorporated
by reference.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.09 Release Response and Corrective Action for UST
Systems Containing Petroleum. Amended.
(1) 40 CFR Part 280, Subpart F (1995) is hereby incorporated by
reference.
(2) Corrective action plans (CAPs), Part A for reporting
completed release response activities and for summarizing the
proposed site investigation, including a schedule for submittal of
a CAP - Part B, and Part B for reporting the results of the site
investigation and for summarizing the proposed soil and groundwater
corrective action objectives and the activities required to meet
those objectives, shall be submitted to the Division on such forms
as provided by the Environmental Protection Division, Georgia
Department of Natural Resources. The plans must include
certifications by the UST owner or operator, in the format
specified, that the plans are factual and meet all the criteria and
requirements of these Rules and other environmental laws and
regulations of the State of Georgia. The plans must also be
stamped or sealed by a Georgia-registered Professional Engineer or
11
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Professional Geologist. The Corrective Action Plan - Part A shall
be submitted in lieu of the initial abatement report, the initial
site characterization report, and the free product removal report,
as referenced by 40 CFR §§ 280.62(b), 280.63(b), and 280.64(d)
(1995) , respectively, and must be submitted to EPD within 60 days
after release confirmation.
(3) A Corrective Action Plan - Part B must be submitted when one
or more of the conditions listed in subparagraphs (a) through (e)
below are encountered:
(a) Free product exceeds one-eighth inch (1/8") thickness or an
alternate thickness, as required by EPD;
(b) Groundwater or surface water contamination exceeds federal
and state in-stream water quality standards, as established by the
Georgia Rules for Water Quality Control (Chapter 391-3-6, as
amended);
(c) Groundwater contamination exceeds federal and state Maximum
Contaminant Levels for Safe Drinking Water, and either;
(i) The plume is located in an area of average or higher
groundwater pollution susceptibility, as defined by the Ground-
Water Pollution Susceptibility Map of Georgia (Georgia Department
of Natural Resources, Environmental Protection Division, Georgia
Geologic Survey, 1992), within two (2) miles of a point of
withdrawal for a public water system, as defined in the Georgia
Rules for Safe Drinking Water (Chapter 391-3-5, as amended), and/or
within one-half (1/2) mile of a point of withdrawal for a non-
public water system; or
(ii) The plume is located in an area of lower groundwater
pollution susceptibility within one (1) mile of a point of
withdrawal for a public water system and/or within one-quarter (H)
mile of a point of withdrawal for a non-public water system;
(d) Concentrations of volatile organic compounds and/or
polynuclear aromatic hydrocarbons, as appropriate, in soil exceed:
(i) Threshold levels listed in Table A; or
(ii) Threshold levels listed in Table B; or
(iii) Alternate threshold levels, as approved by EPD.
Table A
12
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Petroleum Constituents and Soil Threshold Levels3
At UST corrective action sites where withdrawal points for public and non-public water supplies exist within
distances defined in GUST Rule 391-3-15-.09(3):
CONSTITUENT
AVERAGE OR HIGHER
GROUNDWATER POLLUTION
SUSCEPTIBILITY AREA"
(Where public water supplies exist
within 2.0 miles and/or non-public
supplies exist within 0.5 miles)
LOWER
GROUNDWATER POLLUTION
SUSCEPTIBILITY AREA0
(Where public water supplies exist
within 1.0 mile and/or non-public
supplies exist within 0.25 mile)
VOLATILE ORGANIC
COMPOUNDS
s500 feet to
withdrawal point
>500 feet to
withdrawal point
£500 feet to
withdrawal point
>500 feet to
withdrawal point
Benzene9
0.005 mg/kgd
0.008 mg/kg
0.005 mg/kgd
0.71 mg/kg
Toluene
0.400 mg/kg
6.00 mg/kg
0.400 mg/kg
500.00 mg/kg
Ethylbenzene
0.370 mg/kg
10.00 mg/kg
0.500 mg/kg
140.00 mg/kg
Xylenes (total)
20.00 mg/kg
700.00 mg/kg
27.00 mg/kg
700.00 mg/kg
POLYNUCLEAR AROMATIC
HYDROCARBONS

Acenaphthene
N/Ae
N/Ae
N/A®
N/A®
Anthracene
N/Ae
N/A®
N/A®
N/A®
Benz(a)anthracene
N/Ae
N/Ae
N/Ae
N/Ae
Benzo(a)pyrene
0.660 mg/kgd
N/Ae
N/Ae
N/A®
Benzo(b)fluoranthene
0.820 mg/kqd,f
N/Ae
N/A®
N/A®
Benzo(g,h,i)perylene
N/Ae
N/Ae
N/A®
N/A®
Benzo(k)fluoranthene
1.60 mg/kgd,f
N/Ae
N/A®
N/A®
Chrysene
0.660 mg/kgd
N/Ae
N/A®
N/A®
Dibenz(a,h)anthracene
1.50 mg/kgd''
N/Ae
N/A®
N/A®
Fluoranthene
N/Ae
N/Ae
N/Ae
N/A®
Fluorene
N/AB
N/A®
N/A®
N/A®
lndeno(1,2,3-c,d)pyrene
0.660 mg/kgd
N/Ae
0.660 mg/kg"
N/A®
Naphthalene
N/Ae
N/Ae
N/A®
N/A®
Phenanthrene
N/Ae
N/Ae
N/A®
N/A®
Pyrene
N/Ae
N/A®
N/A®
N/A®
a - Based on worst-case assumptions for one-dimensional vadose zone and groundwater contaminant fate and transport models,
b - Based on an assumed distance of 0.5 feet between contaminated soils and the water table,
c - Based on an assumed distance of 5.0 feet between contaminated soils and the water table.
13
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d - Estimated Quantitation Limit. The health-based threshold level is less than the laboratory method limit of detection,
e - Not applicable. The health-based threshold level exceeds the expected soil concentration under free product condition,
f - In order to protect surface waters, the soil threshold level in Table B may supersede that found in Table A.
g - In the presence of other petroleum contaminants in concentrations exceeding 1.0 mg/kg, the Estimated Quantitation Limit, and hence the soil
threshold level, may be substantially greater, as approved by EPD.
Table B
Petroleum Constituents and Soil Threshold3 Levels
At other UST corrective action sites where withdrawal points for public and non-public water supplies do not exist within
distances defined in GUST Rule 391 -3-15-.09(3):
CONSTITUENT
AVERAGE OR HIGHER
GROUNDWATER POLLUTION
SUSCEPTIBILITY AREA"
LOWER
GROUNDWATER POLLUTION
SUSCEPTIBILITY AREAC
VOLATILE ORGANIC
COMPOUNDS
s500 feet to sur-
face water body
>500 feet to sur-
face water body
s500 feet to sur-
face water body
>500 feet to sur-
face water body
Benzene'
0.017 mg/kg
0.120 mg/kg
0.020 mg/kg
11.30 mg/kg
Toluene
115.00 mg/kg
500.00 mg/kg
135.00 mg/kg
500.00 mg/kg
Ethylbenzene
18.00 mg/kg
140.00 mg/kg
28.00 mg/kg
140.00 mg/kg
Xylenes (total)
700.00 mg/kg
700.00 mg/kg
700.00 mg/kg
700.00 mg/kg
POLYNUCLEAR AROMATIC
HYDROCARBONS

Acenaphthene
N/Ae
N/A8
N/Ae
N/Ae
Anthracene
N/Ae
N/Ae
N/Ae
N/Ae
Benz(a)anthracene
0.660 mg/kgd
N/Ae
N/Ae
N/Ae
Benzo(a)pyrene
0.660 mg/kgd
N/Ae
N/Ae
N/Ae
Benzo(b)fluoranthene
0.660 mg/kgd
N/Ae
N/Ae
N/Ae
Benzo(g,h,i)perylene
N/A®
N/Ae
N/Ae
N/Ae
Benzo(k)fluoranthene
0.660 mg/kg"
N/Ae
N/Ae
N/Ae
Chrysene
0.660 mg/kgd
N/Ae
N/Ae
N/Ae
Dibenz(a,h)anthracene
0.660 mg/kgd
N/Ae
N/Ae
N/Ae
Fluoranthene
N/Ae
N/Ae
N/Ae
N/Ae
Fluorene
N/Ae
N/Ae
N/A8
N/A8
lndeno(1,2,3-c,d)pyrene
0.660 mg/kga
N/A8
0.660 mg/kgd
N/A8
Naphthalene
N/A8
N/Ae
N/Ae
N/A8
14
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Phenanthrene
N/Ae
N/A®
N/A8
N/Ae
Pyrene
N/Ae
N/Ae
N/Ae
N/Ae
a - Based on worst-case assumptions for one-dimensional vadose zone and groundwater contaminant fate and transport models,
b - Based on an assumed distance of 0.5 feet between contaminated soils and the water table,
c - Based on an assumed distance of 5.0 feet between contaminated soils and the water table,
d - Estimated Quantitation Limit. The health-based threshold level is less than the laboratory method limit of detection,
e - Not applicable. The health-based threshold level exceeds the expected soil concentration under free product condition,
f- In the presence of other petroleum contaminants in concentrations exceeding 1.0 mg/kg, the Estimated Quantitation Limit, and hence the soil
threshold level, may be substantially greater, as approved by EPD.
(e) EPD has determined that, because of unique geologic,
hydrologic or other site-specific conditions, a Corrective Action
Plan - Part B is necessary to adequately protect human health and
the environment.
(4) If a Corrective Action Plan - Part B must be proposed in
compliance with paragraph 391—3—15—.09(3) above, the full extent of
groundwater and surface water contamination must be delineated and
one or more of the following corrective action objectives for
contaminated soil, surface water, and groundwater, as applicable,
in subparagraphs (a) through (d) below must be proposed and
implemented upon approval by EPD:
(a) Remediate soil contamination that exceeds the threshold
levels listed in Table A or Table B or exceeds alternate threshold
levels approved by EPD, as applicable;
(b) Remediate free product that exceeds one-eighth inch (1/8")
thickness or an alternate thickness, as approved by EPD;
(c) Remediate groundwater contamination that exceeds federal and
state Maximum Contaminant Levels where drinking water supplies
exist within the distances defined in subparagraph (3) (c) (i) or
(ii) above, as applicable, or that exceeds in-stream water quality
standards, as applicable, or alternate concentration limits as
required by EPD;
(d) Determine alternate concentration limits for soil and
groundwater corrective action through the use of an appropriate
risk assessment, as determined by EPD, that demonstrates that the
objectives in (a) and (c) above are not necessary to protect human
health and the environment. The request for alternate
concentration limits must explain clearly and concisely how these
alternate concentration limits will adequately protect human
health, safety, and the environment and shall not be utilized
unless approved by EPD. Upon approval of proposed alternate
concentration limits by EPD, the owner or operator must either:
15
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1. Remediate contaminated soils and/or groundwater to approved
alternate concentration limits and monitor the soils and/or the
plume to validate and verify predictions of the risk assessment,
including the natural degradation of petroleum contaminants, unless
such monitoring is deemed unnecessary by EPD; or
2. If remediation of contaminated soils and/or groundwater is not
necessary, monitor the soils and/or the plume to validate and
verify predictions of the risk assessment, including the natural
degradation of petroleum contaminants, unless such monitoring is
deemed unnecessary by EPD;
(5) An owner or operator may transport or provide for
transportation of petroleum contaminated soil only to storage,
treatment or disposal facilities which have all applicable local,
state and federal permits and such facility or facilities shall be
designated in the applicable corrective action plan.
(6) Upon completion of corrective action, the UST owner or
operator must certify in the completion report, in the format
specified, that the CAP was implemented completely and correctly
and that the objectives of the corrective action have been
achieved.
(7) An owner or operator conducting a corrective action with
funds from a source other than the Georgia Underground Storage Tank
Trust Fund, may remediate contaminated soil or groundwater to more
stringent objectives than those of paragraph 391-3-15-.09 (4) at
the owner or operator's discretion.
(8) All determinations of petroleum contaminants in soil or
groundwater must be performed in conformity with Test Methods for
Evaluating Solid Waste (United States Environmental Protection
Agency, Office of Solid Waste and Emergency Response, SW-846, Third
Edition, as revised) or with an alternate method, as approved by
EPD.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.10 Release Response and Corrective Action for UST
Systems Containing Hazardous Substances. Amended.
The provisions of Rule 391-3-15-.09 shall apply, except that
cleanup concentrations for leaked hazardous substances shall be
equal to or less than the background level of that constituent in
the soil or water immediately prior to the release of that
constituent, as measured immediately upgradient of the UST and
unaffected by the release, or an alternate concentration limit as
16
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established by EPD, or if a hazardous waste when leaked, in
accordance with O.C.G.A. 12-8-60, the Georgia Hazardous Waste
Management Act, as amended.
Authority O.C.G.A. Section 12-13-1 et seq., as amended.
391-3-15-.il Out-of-Service UST Systems and Closure. Amended.
(1) 40 CFR Part 280, Subpart G (1995) is hereby incorporated by
reference.
(2) The owner or operator, or past owner or operator, of an UST
system, in service on or after January 1, 1974, but taken out of
service or abandoned before December 22, 1988, must close the UST
system, as required by EPD, in accordance with 40 CFR Part 280,
Subpart G (1995).
(3) For all UST systems permanently closed after the effective
date of these rules, a closure report, prepared on such forms as
provided by EPD, must be submitted to EPD by the owner within 45
days of completion of closure.
Authority O.C.G.A. Section 12-13-1 et seq., as amended.
391-3-15-.12 Underground Storage Tanks Containing Petroleum;
Financial Responsibility Requirements. Amended.
(1) 40 CFR §§280.90 - 280.99 and 280.102 - 280.111 (1995) are
hereby incorporated by reference.
(2) An owner or operator may satisfy the requirements of
financial responsibility, as described in 40 CFR §280.93 (1995),
for underground storage tanks located in Georgia by participating
in the' liability limitations and reimbursement benefits of the
Georgia Underground Storage Tank (GUST) Trust Fund, in accordance
with Rule 391-3-15-.13.
Authority O.C.G..A. Section 12-13-1 et seq. , as amended.
391-3-15-.13 Georgia Underground Storage Tank (GUST) Trust Fund.
Amended.
(1) Administration.
(a) Funding the GUST Trust Fund.
1. Environmental Assurance Fee (EAF). In order to participate
17
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in the liability limitations and reimbursement benefits of the GUST
Trust Fund, commencing on July 1, 1988, an UST owner or operator
shall pay to EPD an EAF on each gallon of petroleum products
imported into Georgia. The EAF was 0.1C per gallon from July 1,
1988, through September 30, 1991, and the EAF is 0.2C per gallon
from October 1, 1991, through September 30, 1996, and the EAF is
0.5C per gallon effective October 1, 1996. This fee is established
to assure the funding of emergency, preventive, or corrective
actions necessary when public health or safety is, or potentially
may be, threatened from a release of regulated substances from an
UST and to provide compensation for third-party liability.
(i) Point of EAF Collection. This fee shall be collected by the
terminal operator or jobber upon request of the UST owner or
operator when the petroleum product is removed from a terminal, or
if the petroleum product will never be stored in a terminal in
Georgia, then by the importer thereof and paid to EPD. Proof of
such payment shall be provided the UST owner or operator by the
terminal operator or jobber. Exchanges of petroleum products on a
gallon-for-gallon basis within a terminal shall be exempt from this
fee. Petroleum product which is subsequently exported from Georgia
is exempt from this fee. An UST owner or operator purchasing
petroleum products from an out-of-state terminal operator or jobber
must remit the EAF directly to EPD, unless the terminal operator or
jobber agrees to remit the EAF for the owner or operator.
(ii) Timetable for Remittance. EAFs shall be remitted to EPD
quarterly. Terminal operators remitting collected EAFs may be
required to provide EPD with a list(s) of owners or operators who
elected or declined payment of EAFs. Fees are due to EPD on the
20th day of each October, January, April, and July for the previous
three month period. The EAF. payment shall be accompanied by such
forms as may be prescribed by the Director. If a terminal
operator, direct importer or direct pay owner or operator has good
cause for an extension of time, he may apply to the Director for
additional time to file his EAF payment. Such application must be
made to the Director before the payment becomes delinquent and must
state all facts giving rise to the necessity for additional time.
If the Director grants an extension, such extension may not exceed
30 days.
2. Civil Penalties. All civil penalties recovered by the
Director as provided in O.C.G.A. § 12-13-19 shall be paid into the
GUST Trust Fund.
(b) Establishing GUST Trust Fund Eligibility.
1. Notification Requirements for UST Systems. In order to
18
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participate in the GUST Trust Fund as a financial assurance
mechanism, each owner or operator of an UST currently in use must
have submitted notification forms as required in Rule 391-3-15-
.05(3).
2. Eligibility For Existing UST Systems.
(i) Initial Election. All owners or operators of existing USTs
who elect to participate in the GUST Trust Fund as a financial
assurance mechanism under Rule 391-3-15-.12, as of July 1, 1988,
must:
(I) pay the EAF on each gallon of petroleum product purchased
after July 1, 1988; or
(II) the owner or operator purchasing petroleum product from an
out-of-state terminal operator or jobber must remit the EAF for
each gallon thus purchased after July 1, 1988 directly to EPD
unless the terminal operator or jobber agrees to remit the EAF to
EPD for the owner or operator; and
(III) report any known or suspected leaks from an existing UST.
Meeting these conditions automatically makes a tank owner or
operator a participant in the GUST Trust Fund, and no specific
notice to EPD is required to confirm such participation. Any tank
owner or operator who elects not to participate in the GUST Trust
Fund must make a written declaration of that election to the
Director and to the terminal operator or jobber.
(ii) Subsequent Election. All owners or operators of existing
USTs who elect to participate in the GUST Trust Fund as a financial
assurance mechanism under Rule 391-3-15-.12, ninety (90) or more
days after July 1, 1988, or who elect to participate in the GUST
Trust Fund as a financial assurance mechanism under Rule 391-3-15-
.12 after there has been an interruption in GUST Trust Fund
participation subsequent to the initial or subsequent election to
participate either by the current owner or operator or the current
owner or operator's predecessor in title, must:
(I) perform and pass a tank system precision tightness test, the
results'of which must be acceptable to EPD;
(II) perform a site check of the UST site in accordance with 40
CFR § 280.52(b) (1995), the results of which must be acceptable to
EPD;
(III) remit to EPD all EAFs which would have been collected under
19
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the provisions of Rule 391-3-15-.13 (l)(b)2.(i), including an
amount equal to any interest which would have accrued to those
monies had they been remitted from July 1, 1988, or from the date
of the interruption of participation in the GUST Trust Fund, as
determined by EPD, provided there has not been a release of
petroleum that has not been remediated in accordance with these
Rules; and
(IV) comply with (b)2.(i) of this paragraph.
3. Eligibility For New USTs Installed After July 1, 1988. All
owners or operators of new USTs who elect to participate in the
GUST Trust Fund as a financial assurance mechanism under Rule 391-
3-15-.12 must:
(i) comply with all requirements of Rule 391-3-15-.05; and
(ii) comply with all requirements under the provision of Rule
391-3-15-.13 (1) (b)2. (i) .
(c) Maintaining GUST Trust Fund Eligibility. In order to
maintain eligibility for GUST Trust Fund disbursements, all
participating owners or operators of UST systems must satisfy the
following requirements:
1. Reporting Changes in UST Status. The participating owner or
operator shall notify EPD in writing of any of the following
changes in UST status:
(i) change in ownership; or
(ii) closure.
2. Payment of EAF. Payment of EAFs must be made for each UST
until such time as closure requirements are satisfied.
3. Recordkeeping. The participating owner or operator shall
maintain the following records for each UST and make them available
to EPD:
(i) records of any tank system tightness tests as required in
391-3-15-.13 (1)(b);
(ii) receipts for any and all EAF payments, whether remitted
directly or indirectly to EPD;
(iii) records of compliance with release detection requirements
per Rule 391-3-15-.07; and
20
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(iv) any records as may be required by EPD.
4. Retention of Records.
(i) All records identified in (c)3. above shall be retained for
a period of thirty-six (36) months or until one of the following is
accomplished, whichever comes first:
(I) ownership of an (JST, and all records pertaining thereto, are
transferred to a new owner for retention; or
(II) owner or operator is instructed otherwise by EPD.
5. Reporting of Suspected Leaks or Spills. The participating
owner or operator shall report to EPD any suspected leak or spill
of petroleum product.
6. Loss of GUST Trust Fund Coverage. Whenever the Director has
reason to believe that a participating owner or operator has failed
to maintain GUST Trust Fund eligibility pursuant to these Rules,
the Director shall issue a notice of violation. The participating
owner or operator shall have 30 days from receipt of such notice to
provide evidence of compliance with all GUST Trust Fund eligibility
requirements or take all necessary steps to correct such violation.
If, after 30 days, the participating owner or operator fails to
resolve the notice of violation, the Director shall issue a notice
of termination of GUST Trust Fund eligibility. Within 60 days of
such notice of termination, the owner or operator must provide an
alternate financial assurance mechanism.
(d) Amount and Scope of GUST Trust Fund Coverage.
1. The GUST Trust Fund will provide, to participating owners or
operators, coverage for release response and corrective action, as
identified in 40 CFR Part 280, Subpart F (1995), and for
compensation of third parties for bodily injury and property damage
caused by accidental releases arising from operating regulated
petroleum product USTs not to exceed $1 million per occurrence
cumulatively. For purposes of Rule 391-3-15-.13, the term
"occurrence" shall mean any unexpected or unintended sudden or
nonsudden release of petroleum product arising from operating an
UST that results in a need for corrective action, bodily injury, or
property damage.
(i) Any property owner shall not be considered a third-party
claimant if the property was transferred to that property owner by
the owner or operator of an underground storage tank after a
release where damages could be reasonably anticipated;
21
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(ii) Third-party liability property damage shall be reimbursed
from the GUST Trust Fund based on the rental costs of comparable
property during the period of loss of use up to a maximum amount
equal to the fair market value. In the case of property that is
actually destroyed as a result of a petroleum release,
reimbursement shall be an amount necessary to replace or repair the
destroyed property, whichever is less; and
(iii) Payments for third-party liability damages, as defined in
these Rules, shall never exceed the amount of the GUST Trust Fund
coverage as provided in these Rules for any owner or operator and
shall not include payments for any claims for attorney's fees for
third-party claimants or claims for punitive damages or mental
anguish.
2. The GUST Trust Fund will provide, to participating owners or
operators, annual aggregate coverage for release response and
corrective action and for compensation of third parties for bodily
injury and property damage caused by accidental releases arising
from operating petroleum product USTs not to exceed cumulatively
the following amounts:
(i) for participating owners or operators of one to 100 petroleum
product USTs., $1 million; and
(ii) for participating owners or operators of 101 or more
petroleum product USTs, $2 million.
3. The participating owner or operator shall be liable for the
first $10,000 of release response and corrective action costs and
third party liability claims per occurrence and be totally
responsible for any replacement or retrofitting or both of affected
tanks and associated piping. The participating owner or operator
must demonstrate financial responsibility for the first $10,000 of
release response and corrective action costs and third party
liability claims per occurrence by an allowable financial assurance
mechanism as described in 40 CFR §§ 280.95 - 280.99, 280.102, and
280.103 (1995).
4. The State of Georgia and the GUST Trust Fund shall have no
liability for loss of business, damages, or taking of property
associated with any release response or corrective action.
5. Whenever the trustee of the GUST Trust Fund determines that
all costs eligible for payment, both release response and
corrective action costs and third-party liability claims, may
exceed the per-occurrence or aggregate coverages, the first
priority for payment shall be the corrective action costs necessary
22
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to protect human health and the environment. The trustee shall pay
third-party liability claims in the order in which the trustee
received valid court orders under Rule 391-3-15-.13 (1) (h)2.
6. If a corrective action is to be conducted using funds from the
Georgia Underground Storage Tank Trust Fund, the corrective action
will not extend substantially beyond the target objectives of Rule
391-3-15-.09(4). If a participating owner or operator desires to
have the corrective action scope go beyond these objectives, the
owner or operator must pay the difference in cost between those
objectives and the owner or operator's alternative objectives.
(e) Principal Disbursements.
1. The principal of the monies deposited in such fund pursuant
to O.C.G.A. § 12-13-10 may be expended by the Director for the
following purposes:
(i) to take whatever emergency action is necessary or appropriate
to assure that the public health or safety is not threatened
whenever there is a release or substantial threat of a release of
regulated substances from an UST;
(ii) to take preventive or corrective actions where the release
of the regulated substances presents an actual or potential threat
to human health or the environment where the owner or operator has
not been identified or where the owner or operator is unable, as
determined by the Director, to perform corrective action, includ-
ing, but not limited to, provisions for providing alternative water
supplies;
(iii) to provide compensation for third-party liability;
(iv) to pay for any portion of the administrative cost of
administering the GUST Trust Fund which exceeds the amount of
interest earned on the corpus of such fund; provided, however, that
no more than 10 percent of the fees collected annually pursuant to
Subsection (a) of O.C.G.A. 12-13-10 shall be used for such purpose;
(v) to provide reimbursement to eligible, participating owners
and operators who have conducted release response and corrective
action; and
(vi) to provide payments to state contractors for eligible,
participating owners and operators who are unable, as determined by
the Director, to conduct corrective action for petroleum releases
from USTs.
23
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2. To encourage voluntary release response and corrective action,
a participating owner or operator conducting such activities under
these regulations, either through his own personnel or through
response action contractors or subcontractors, is entitled to
reimbursement of reasonable costs from the GUST Trust Fund, subject
to the following provisions:
(i) subsequent to release response and prior to initiating
additional corrective action, the participating owner or operator
must submit to EPD a proposed Corrective Action Plan - Part A for
release response activities completed and for proposal of site
investigation activities, together with incurred and projected
costs of the activities completed and proposed, respectively, and
upon receipt of approval by EPD, shall promptly continue corrective
action. Upon implementation and completion of the approved
Corrective Action Plan - Part A and prior to initiating additional
corrective action for soil and groundwater, the participating owner
or operator must submit to EPD a proposed Corrective Action Plan -
Part B for site investigation reporting and for proposal of
additional site activities, together with projected costs of those
activities, and upon receipt of approval by EPD, shall promptly
continue corrective action;
(ii) the participating owner or operator or his agents shall keep
and preserve detailed records demonstrating compliance with the
approved corrective action plans and all invoices and financial
records associated with costs for which reimbursement will be
requested;
(iii) upon receipt of a complete Corrective Action Plan - Part
A, EPD shall make a determination and provide written notice as to
whether the participating owner or operator responsible for
corrective action is eligible or ineligible for. reimbursement of
costs. Should EPD determine the participating owner or operator is
ineligible, it shall include in its written notice an explanation
setting forth in detail the reasons for the determination;
(iv) the participating owner or operator shall submit to the
Director, within 30 days of completing all corrective action, a
completion report that corrective action has been completed;
(v) no later than 30 days from the submission of the completion
report, the participating owner or operator must submit an
application for reimbursement of costs in accordance with criteria
established by EPD. The application for reimbursement must include
the total cost of the corrective action and the amount of
reimbursement sought;
24
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(vi) the first $10,000 of approved corrective action costs
incurred by the participating owner or operator are not eligible
for reimbursement from the GUST Trust Fund nor .are costs for
replacement or retrofitting of affected tanks and associated
piping;
(vii) no costs may be reimbursed to the participating owner or
operator until such time as corrective action has been completed in
accordance with a plan approved by EPD. However, provisions for
interim payments may be made if the corrective action is being
conducted in accordance with a plan approved by EPD which allows
interim payments; and
(viii) reimbursement of reasonable costs from the GUST Trust Fund
shall be limited as provided in Rule 391-3-15-.13 (1) (d) .
(f) Cost Recovery
1. The participating owner or operator of an UST shall be liable
for all costs of preventive, corrective, and enforcement actions
incurred by the State of Georgia as a result of a release or a
substantial threat of release of a petroleum product from an UST
unless the participating owner or operator enters into a consent
agreement as directed in O.C.G.A. § 12-13-11(c). The provisions
for cost recovery from owners or operators participating in the
GUST Trust Fund are as follows:
(i) whenever costs have been incurred by EPD pursuant to
Subsection (f) of O.C.G.A. § 12-13-9 or Subsection (b) of O.C.G.A.
§ 12-13-11, for corrective action, the participating owner or
operator shall be liable for the first $10,000 per occurrence for
corrective action; such funds to be paid into the GUST Trust Fund
within 90 days of notice by the Director;
(ii) notwithstanding the provisions of Subsections (b) and (c)
of O.C.G.A. § 12-13-11, the participating owner or operator shall
be liable for 100 percent of costs associated with preventive,
corrective or enforcement actions necessary to protect human health
or the environment, or for compensation of third-party liability
claims, should EPD find that any of the following situations exist:
(I) the release was due to willful or negligent actions by the
participating owner or operator;
(II) the participating owner or operator is in arrears for monies
owed to the GUST Trust Fund;
(III) the participating owner or operator moves in any way to
25
-------
obstruct the efforts of EPD or its contractors to effectuate
corrective action;
(IV) the participating owner or operator of a petroleum product
UST has stored any petroleum product in such UST which has not been
subjected to, nor paid any, EAF imposed in Subsection (a) of
O.C.G.A. § 12-13-10.
(iii) notwithstanding the provisions of Subsections (b) and (c)
of O.C.G.A. § 12-13-11, the participating owner or operator may be
liable for up to 100 percent of costs associated with preventive,
corrective or enforcement actions necessary to protect human health
or the environment, or for compensation of third-party liability
claims, should EPD find that any of the following situations exist:
(I) the release is from an UST not registered in accordance with
O.C.G.A. § 12-13-13;
(II) the participating owner or operator fails to comply with any
provision of the consent agreement required by Subsection (c) of
O.C.G.A. § 12-13-11;
(III) the participating owner or operator has failed to comply
with any provisions of GUSTA or these Rules and such failure has
caused, contributed to or otherwise adversely affected the release,
or when non-compliance has not directly contributed to or otherwise
adversely affected a release and such non-compliance was not or has
not been corrected in a timely fashion when directed to do so by
the Director.
(iv) notwithstanding subparagraph (ii) or (iii) above, the
participating owner or operator may not be liable for costs
associated with preventive, corrective, or enforcement actions
necessary to protect human health or the environment, or for
compensation of third-party liability claims, should EPD find that
the following exist:
(I) the source of the release is an UST system that was removed
or abandoned prior to July 1, 1988, and is within close proximity,
but not more than 200 feet, of an existing UST system owned or
operated by a participant in the GUST Trust Fund, and the existing
UST system is a replacement for the removed or abandoned UST
system; or
(II) the current contamination from an existing UST system owned
and operated by a participant in the GUST Trust Fund and another
source cannot be differentiated, as determined by the Director.
26
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2. Except as otherwise provided for in Subsection (c) of O.C.G.A.
§ 12-13-11, in the event of any discharge or threatened discharge
of a regulated substance, the State or- any of its agencies may
recover in a civil action from any owner, operator, or other
responsible person all costs incurred by the State or any of its
agencies or monies from the Federal Leaking Underground Storage
Tank (LUST) Trust Fund in the assessment and the cleanup of any
release of a regulated substance and all costs incurred in the
prevention, abatement, or removal of any threatened discharge of a
regulated substance, including reasonable attorney's fees and any
other necessary costs of response incurred by the State or any of
its agencies. All such monies recovered shall be deposited into
the GUST Trust Fund. The State shall have a lien on the property
of owners or operators until funds are paid.
(g) Bankruptcy of GUST Trust Fund Participant. Following the
commencement of a voluntary or involuntary proceeding under the U.
S. Bankruptcy Code, 11 U.S.C. § 101 et sea., naming a participating
owner or operator as debtor, EPD may file a claim against the
participating owner or operator for the following, as necessary:
1. satisfaction of closure requirements; or
2. corrective action.
(h) Third-Party Compensation Claims. Subject to all other
provisions of these Rules, the trustee of the GUST Trust Fund shall
provide compensation for third-party liability claims only when:
1. the trustee has received notice of potential third-party
liability from the participating owner or operator within sixty
(60) days of the date the participating owner or operator is made
aware of a claim or claimant, which notice shall contain
particulars sufficient to identify the UST covered by the GUST
Trust Fund financial assurance mechanism and other information with
respect to the time, place and circumstances of the occurrence, as
well as the names and addresses of the persons alleged to be
injured and all available witnesses. Failure to timely give a
notice in compliance herewith shall forfeit all rights of a
participating owner or operator to have third-party compensation
claims paid from the GUST Trust Fund; and
2. the trustee has received a valid final court order
establishing a judgment against the participating owner or operator
for bodily injury or property damage caused by an accidental
release of petroleum products from an underground storage tank
covered by the GUST Trust Fund financial assurance mechanism and
the trustee of the GUST Trust Fund determines that the
27
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participating owner or operator has not satisfied the judgment.
However, there shall be no liability on the part of the GUST Trust
Fund and the trustee thereof unless the trustee shall have been
given timely notice by a participating owner or operator of any
lawsuit filed by a potential third-party liability claimant, and
the trustee has an opportunity to intervene in said lawsuit and
defend on behalf of the participating owner or operator with the
full cooperation and assistance of the participating owner or
operator against any claim which might be asserted by a potential
third-party liability claimant for bodily injury or property damage
allegedly caused by an accidental release of petroleum products
from an underground storage tank covered by the GUST Trust Fund
financial assurance mechanism. There shall be no liability for the
GUST Trust Fund under this provision should the participating owner
or operator fail to provide notice to the trustee within fifteen
(15) days of the service of a law suit against the participating
owner or operator or fail to cooperate with the trustee in the
defense against the claim or should the final judgment presented to
the trustee be a default judgment.
(2) Corrective Action.
(a) GUST Trust Fund Corrective Action for Participating Owners
or Operators.
1. Reporting. The participating owner or operator shall report
to EPD any suspected leak or spill of petroleum product as required
in 40 CFR § 280.50 (1995) , and the participating owner or operator
must inform EPD in writing within sixty (60) days of the date of
the confirmation of the release of an intent to file a claim for
reimbursement against the GUST Trust Fund or an intent to obtain
corrective action through the State contractor.
2. Corrective Action by Participating Owner or Operator.
(i) Corrective Action Plan - Part A. Subsequent to release
response and prior to initiating additional corrective action, the
participating owner or operator must submit to and receive approval
from EPD for the proposed Corrective Action Plan - Part A, in
accordance with the provisions of Rules 391-3-15-.09 (2) and 391-3-
15-. 13(1) (e)2. Such corrective action plan shall, at a minimum:
(I) provide documentation of participation in the GUST Trust
Fund, if not submitted previously;
(II) report completed release response activities;
(III) summarize the proposed site investigation including a
28
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projected schedule for submittal of a Corrective Action Plan - Part
B; and
(IV) provide cost projections and a schedule of reimbursements
for the proposed site investigation activities.
(ii) Corrective Action Agreement. Following approval by EPD of
the Corrective Action Plan - Part A, the participating owner or
operator will enter into a corrective action agreement with EPD,
which shall, at a minimum:
(I) provide approval, if not granted previously to protect human
health and the environment, for continuation of corrective action;
(II) confirm eligibility under the GUST Trust Fund;
(III) approve an estimated schedule of reimbursement; and
(IV) require submittal of a Corrective Action Plan - Part B,
unless directed by EPD not to submit such plan.
(iii) Corrective Action Plan - Part B. Subsequent to completion
of the site investigation proposed in the Corrective Action Plan -
Part A and prior to initiating additional corrective action, the
participating owner or operator must submit to and receive approval
from EPD for the proposed Corrective Action Plan - Part B, in
accordance with the provisions of Rules 391-3-15-.09 (2) and 391-3-
15-.13(1) (e)2. Such corrective action plan shall, at a minimum:
(I) report the results of the site investigation;
(II) summarize the proposed corrective action including
projected schedules and corrective action objectives; and
(III) provide cost projections and a schedule of reimbursement
for proposed corrective action activities.
(iv) The proposed scopes of work, schedules and cost projections
submitted under the Corrective Action Plan - Part A and the
Corrective Action Plan - Part B may be modified, and, if approved
by EPD in writing, said approval shall amend the Corrective Action
Agreement.
3. Corrective Action by State. If the participating owner or
operator is unable, as determined by EPD, to perform corrective
action, the participating owner or operator of an UST shall be
liable for all costs incurred by the State of Georgia as a result
of a release of a petroleum product from an UST unless the
29
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participating owner or operator enters into a consent agreement
with the State as provided for in O.C.G.A. § 12-13-11(c).
(b) Other GUST Trust Fund Corrective Action. Whenever the
Director has reason to believe that there is or has been a release
of a regulated substance into the environment from an UST,
regardless of the time at which storage of such material occurred,
and has reason to believe that such release poses a danger to human
health or the environment, the Director may obtain corrective
action for such release, utilizing funds from the GUST Trust Fund,
provided however, that corrective action for regulated substances
other than petroleum products shall not be obtained by utilizing
funds generated from EAFs.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.14 Enforcement. The enforcement of these Rules and
Regulations shall be in accordance with the Georgia Underground
Storage Tank Act and the Georgia Administrative Procedure Act.
Such enforcement measures include, but are not limited to,
administrative orders, court orders, injunctive relief, and civil
penalties pursuant to these Acts.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
391-3-15-.15 Variances. A variance may be granted by the
Director only if it is consistent with the requirements of GUSTA
and these Rules and consistent with the Federal Act and Regulations
promulgated thereunder.
Authority O.C.G.A. Section 12-13-1 et seq.. as amended.
30
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Environmental Protection Agoncy
rials submitted m part of the original
application or aa supplement* thereto
are codified aa part of the authorized
hazardous waste management pro-
gram under subtitle C of RCRA, 43
U.8.C. 6921 et teq. The Program De-
scription Addendums dated October
1080. June 30, 1987, July 33, 1987,
March 39. 1988, and September 14,
1988. are codified as part of the au-
thorized hazardous waste management
program under subtitle C of RCRA, 43
U.8.C. 6931 et teg.
IM PR 7414. Feb. 31, IB SO. as amended at B6
FR 11911, Mar. SO. IWI
M 373.3603—373.S&49 (Reserved)
Subpart ZZ—Wyoming
W 373.3650— 373.2699 (Reserved)
Subpart AAA Ouaw
H 373.3M0—S73Jt49 (Reserved)
Subpart BBB Puorto Iks
00 272.2060—373.3899 (Reserved)
Subpart CCC—Vlrgbi Islands
H 372.3700—373J749 I Reserved]
Subpart POO AmoHcaw Sana
H 272.2750—373J799 (Reserved]
Subpart EEC—Commoawaaftii of tito
Northern Mariana Islands
00 272.2800—372.2849 (Reserved)
PART 380-—TECHNICAL STANDARDS
AND CORRECTIVE ACTION RE-
OUIREMENTS FOR OWNERS AND
OPERATORS OF UNDERGROUND
STORAGE TANKS (UST)
Sec.
Pf. 780
i—VST t fill in Psilgw, fimliwlln,
380.30 Performance standards for new
U8T systems.
380.31 Upgrading of existing DOT systems.
380.33 Notification requirements.
380.30 Spill and overfill control.
380.31 Operation and maintenance of cor-
rosion protection.
380.33 Compatibility.
380.33 Repairs allowed.
380.34 Reporting and recordkeeping.
380.40 Oeneral requirements for all U8T
systems.
380.41 Requirements for petroleum U8T
systems.
380.43 Requirements for hazardous sub-
stance U8T systems.
380.43 Methods of release detection for
380.44 Methods of release detection for
piping.
380.45 Release detection recordkeeping.
380.50 Reporting of suspected releases.
380.51 Investigation due to off-site Im-
pacts.
380.53 Release Investigation and confirma-
tion steps.
380.53 Reporting and cleanup of spills and
overfills.
Arttsa ht UST System Csn>sluing Pslio-
380.80 Oeneral.
380.81 Initial i
380.83 Initial abatement measures and site
check.
380.83 Initial site characterisation.
380.84 Free product removal.
380.85 Investigations for soil and ground-
water cleanup.
380.88 Corrective action plan.
380.87 Public participation.
UST
Sec.
380.10 Applicability.
380.11 Interim prohibition for deferred
UST systems.
380.13 Definitions.
380.70 Temporary closure.
380.71 Permanent closure and changes-tn-
the site at closure or
380.73 Assessing
change-In-
965
-------
8180.10
40 CFR Ch. I (7.1-91 Edition)
Boc.
M0.11 Applicability to previously dosed
UST systems.
100.14 Closure record*.
InSp»rt M Ha—dsl
380.00 Applicability.
280 81. Compliance dales.
280.92 • Definition of term*.
200.0) Amount Md scope of required fi-
nancial responsibility.
280.94 Allowable mechanisms and oombl-
natlons of mechanisms
380.08 Financial lest of self-Insurance.
380.06 Ouarantee.
180.81 Insurance and rtsk retention group
coverage.
380.08 Surety bond.
380 99 Letter of credit.
380.100 Use of state-required mechanism
380.101 State fund or otHer state assur-
ance.
380.103 Trust fund.
380.105 Standby trust fund.
380.104 Substitution of financial sssuranee
mechanisms by owner or operator.
180.108 Cancelation or nonrenewal by a
provider of financial assurance.
380.106 Reporting by owner or operator.
380.101 Recordkeeping.
380.108 Drawing on financial assurance
m«irhanlsi^|
380.109 Release from the requirements.
380.110 Bankruptcy or other Incapacity of
owner or operator or provider of finan-
cial assurance.
380.111 Replenishment of guarantees, let-
teii of credit, or surety bonds.
300.112 Suspension of enforcement. (Re-
served!
Amwicn to Pan 280
Armou I to Put 380—Nonnctnoa mm
UnDsaaaotnrD Siossaa Tans ihaH)
Amnix 11 to Pan 380—Lis* or Aon cm
DniaMsns to Rbcsivx NonnCATioas
AmnDii ill to P*aT 380—Sramaarr rot
Sairrisa Tiaum am Imroicsa
Aonioam: 43 O.B.C. 6013. 6001. 6001a.
6001b. 6001c. 6091d. C901e. 600lf. end 6Mlh.
Sovaac 81 PR SUM. Sept. 3*. 1M8.
unless otherwise noted.
Subpart A—Prog raw Scop* and
Interim ProhlbttkM
0380.18 Applicability.
(a) The requirements of this put
apply to all owners and operators of
an UST system as defined In 1280.12
except as otherwise provided In para-
graphs (b), Wastewater treatment tank sys-
tems;
(2) Any UST systems containing ra-
dioactive material that are regulated
under the Atomic Energy Act of 1064
<42 UJ3.C. 2011 and following);
(3) Any UST system that Is part of
an emergency generator system at nu-
clear power generation facilities regu-
lated by the Nuclear Regulatory Com-
mission under 10 CFR part 60, appen-
dix A;
<4) Airport hydrant fuel distribution
systems; and
(6) U8T systems with field-con-
structed tanks.
(d) Deferrals. Subpart D does not
apply to any U8T system that stores
fuel solely for use by emergency power
generator*.
9380.11 Interim prohibition for deferred
U8T systems.
(a) No person may Install an UST
system listed In | 280.10(c) for the pur-
pose of storing regulated substances
066
tnvtroii—onto! Protection Agency
unless the UST system (whether of
single- or double-wall construction):
(1) Will prevent releases due to cor-
rosion or structural failure for the
operational Ufe of the UST system;
(2) Is cathodlcally protected against
corrosion, constructed of noncorrodl-
ble material, steel clad with a noncor-
rodlble material, or designed In a
manner to prevent the release or
threatened release of any stored sub-
stance; and
(3) Is constructed or lined with ma-
terial that Is compatible with the
stored subetanoe.
(b> Notwithstanding paragraph (a)
of this section, an UST system without
corrosion protection may be Installed
at a site that 1s determined by a corro-
sion expert not to be corrosive enough
to cause it to have a release due to cor-
rosion during Its operating life.
Owners and operators must maintain
records that demonstrate compliance
with the requirements of this para-
graph for Ute remaining Ufe of the
tank.
None The National AssoclaUon of Corro-
sion Boglneeia Standard RP-03-4A. "Con-
trol of Cstcrnal Corrosion on Metallic
Burled. Partially Burled, or Submerged
liquid Storage Systems." may be used as
guidance for oomplylng with paragraph (b)
of this section.
• 184.IS Definitions.
Abovcffrautul release means any re-
lease to the surface of the land or to
surface water. This Includes, but Is not
limited to. releases from the above-
ground portion of an UST system and
aboveground releases associated with
overfills and transfer operations as the
regulated substance moves to or from
an UST system.
Ancillary equipment means any de-
vices Including, but not limited to,
such devices as piping, fittings,
flanges, valves, and pumps used to dis-
tribute. meter, or control the flow of
regulated substances to and from an
UST.
Belotoffround release means any re-
lease to the subsurface of the land and
to ground water. This includes, but Is
not limited to. releases from the be-
lowground portions of an underground
storage lank system and belowground
releasee associated with overfills and
92*6.12
transfer operations as regulated
substance moves to or from an under-
ground storage tank.
Beneath the surface of the ground
means beneath the ground surface or
otherwise covered with earthen mate-
rials.
Cathodic protection Is a technique
to prevent corrosion of a metal surface
by making that surface the cathode of
an electrochemical cell. For example, a
tank system can be cathodlcally pro-
tected through the application of
either galvanic anodes or Impressed
current.
Cathodic protection tester means a
person who can demonstrate an under-
standing of the principles and meas-
urements of all common types of ca-
thodic protection systems as applied to
buried or submerged metal piping and
tank systems. At a minimum, such per-
sons must have education and experi-
ence In soil resistivity, stray current,
structure-to-soli potential, and compo-
nent electrical Isolation measurements
of buried metal piping and tank sys-
tems.
CERCLA means the Comprehensive
Environmental Response, Compensa-
tion. and Liability Act of 1980, as
amended.
Compatible means the ability of two
or more substances to maintain their
respective physical and chemical prop-
erties upon contact with one another
for the design life of the tank system
under conditions likely to be encoun-
tered In the UST.
Connected piping means all under-
ground piping Including valves, elbows,
joints, flanges, and flexible connectors
attached to a tank system through
which regulated substances flow. For
the purpose of determining how much
piping is connected to any Individual
UST system, the piping that Joins two
UST systems should be allocated
equally between them.
Consumptive use with respect to
heating oil means consumed on the
premises.
Corrosion expert means a person
who. by reason of thorough knowledge
of the physical sciences and the princi-
ples of engineering and mathematics
acquired by a professional education
and related practical experience. Is
qualified to engage in the practice of
967
-------
~§ 280.13
40 CFR Ch. I (7.1.91 ErftHon)
corrosion cot. on burled or Bub-
merged metal piping systems and
metal tanks. Such a prir -n must be
accredited or certified as being quali-
fied by the National Association of
Corrosion Engineers or be a registered
professional engineer who has certifi-
cation or licensing that Includes edu-
cation and experience In corrosion
control of buried or submerged metal
piping systems and metal tanks.
Dielectric material means a material
that does not conduct direct electrical
current. Dielectric coatings are used to
electrically Isolate U8T systems from
the surrounding soils. Dielectric bush-
ings are used to electrically Isolate
portions of the U8T system (e.g.. tank
from piping).
Electrical equipment means under-
ground equipment that contains di-
electric fluid that is necessary for the
operation of equipment such as trans-
formers and buried electrical cable.
Excavation gone means the volume
containing the tank system and back-
fill material bounded by the ground
surface, walls, and floor of the pit and
trenches into which the UST system Is
placed at the time of Installation.
Existing tank system means a tank
system used to contain an accumula-
tion of regulated substances or for
which Installation has commenced on
or before December 32, IB88. Installa-
tion ts considered to have commenced
If:
(a) The owner or operator has ob-
tained all federal, state, and local ap-
provals or permits necessary to begin
physical construction of the site or In-
stallation of the tank system; and If,
(bXl) Either a continuous on-site
physical construction or Installation
program has begun; or,
(3) The owner or operator has en-
tered Into contractual obligations—
which cannot be cancelled or modified
without substantial loss—for physical
construction at the site or Installation
of the tank system to be completed
within a reasonable time.
Farm tank 1s a tank located on a
tract of land devoted to the produc-
tion of crops or raising animals. In-
cluding fish, and associated residences
and Improvements. A farm tank must
be located on the farm property.
"Farm" Includes fish hatcheries.
rangeland and nurseries with growing
operations.
Flovhthrmtgh process tank Is a tank
that forms an Integral part of a pro-
duction process through which there
Is a steady, variable, recurring, or
Intermittent flow of materials during
the operation of the process. Plow-
through process tanks do not Include
tanks used for the storage of materials
prior to their Introduction Into the
production process or for the storage
of finished products or by-products
from the production process.
Free product refers to a regulated
substance that Is present as a non-
aqueous phase liquid (e.g., liquid not
dissolved In water.)
Gathering lines means any pipeline,
equipment, facility, or building used In
the transportation of oil or gas during
oil or gas production or gathering op-
erations.
Hazardous substance UST system
means an underground storage tank
system that contains a hazardous sub-
stance defined In section 101(14) of
the Comprehensive Environmental
Response. Compensation and 1J ability
Act of 1980 (but not Including any sub-
stance regulated as a hazardous waste
under subtitle C) or any mixture of
such substances and petroleum, and
which Is not a petroleum U8T system.
Heating oil means petroleum that Is
No. 1. No. 1. No. 4—light. No. 4-
heavy. No. ft—light. No. 8— heavy, and
No. 6 technical grades of fuel oil; other
residual fuel oils (Including Navy Spe-
cial Fuel Oil and Bunker C); and other
fuels when used as substitutes for one
of these fuel oils. Heating oil Is typi-
cally used In the operation of heating
equipment, boilers, or furnaces.
Hydraulic lift tank means a tank
holding hydraulic fluid for a closed-
loop mechanical system that uses com-
pressed air or hydraulic fluid to oper-
ate lifts, elevators, and other similar
devices.
Implementing agency means EPA.
or. In the case of a state with a pro-
gram approved under section 9004 (or
pursuant to a memorandum of agree-
ment with EPA), the designated state
or local agency responsible for carry-
ing out an approved U8T program.
Liquid trap means sumps, well cel-
lars. and other traps used In assocla-
968
Environmental f>o*et1low Agency
J 280.12
tlon with oil end gas production, gath-
ering. and extraction operations (In-
cluding gas production plants), for the
purpose of collecting oil. water, and
other liquids. These liquid traps may
temporarily collect liquids for subse-
quent disposition or relnjectlon Into a
production or pipeline stream, or may
collect and separate liquids from a gas
stream.
Maintenance means the normal
operational upkeep to prevent an un-
derground storage tank system from
releasing product.
Motor fuel means petroleum or a pe-
troleum-based substance that la motor
gasoline, aviation gasoline. No. 1 or
No. 3 dlesel fuel, or any grade of gaso-
hol, and is typically used In the oper-
ation of a motor engine.
New lank system means a tank
system that will be used to contain an
accumulation of regulated substances
and for which Installation has com-
menced after December 33. 1988. (See
also "Existing Tank 8ystem.")
Noncommercial purposes with re-
spect to motor fuel means not for
male.
On the premises where stored with
respect to heating oil means UST sys-
tems located on the same property
where the stored heating oil Is used.
Operational life refers to the period
beginning when Installation of the
tank system has commenced until the
time the tank system Is properly
closed under Subpart a.
Operator means any person in con-
trol of, or having responsibility for.
the dally operation of the U8T
system.
OverfUl release Is a release that
occur* when a tank to filled beyond Its
capacity, resulting In a discharge of
the regulated substance to the envi-
ronment.
Owner meanc
(a) In the case of an U8T system In
use on November §. 1984. or brought
Into use after that date, any person
who owns an UST system used for
storage, use, or dispensing of regulated
substances; and
(b) In the case of any UST system In
use before November 8, 1984. but no
longer In use on that date, any person
who owned such U8T Immediately
before the discontinuation of Its use.
Perton means an ual, trust,
firm. Joint stock co. /, Federal
agency, corporation, state, municipal-
ity. commission, political subdivision
of a state, or any Interstate body.
"Person" also Includes a consortium, a
Joint venture, a commercial entity, and
the United States Government.
Petroleum UST system means an un-
derground storage tank system that
contains petroleum or a mixture of pe-
troleum with de minimis quantities of
other regulated substances. 8uch sys-
tems Include those containing motor
fuels. Jet fuels, distillate fuel oils, re-
sidual fuel oils, lubricants, petroleum
solvents, and used oils.
Pipe or Piping means a hollow cylin-
der or tubular conduit that Is con-
structed of non-earthen materials.
Pipeline facilities (including gather-
ing lines) are new and existing pipe
rights-of-way and any associated
equipment, facilities, or buildings.
Regulated substance means:
-------
92M.lt
40 CNt Ch. I (7-1-91 Edition)
system and Its .dary barrier or
secondary containment around It.
Repair means to restore a tank or
UST system component that has
caused a release of product from the
UST system.
Residential tank Is a tank located on
property used primarily for dwelling
purposes.
SARA means the Superfund Amend-
ments and Reauthorization Act of
IBM.
Septic tank Is a water-tight covered
receptacle designed to receive or proc-
ess. through liquid separation or bio-
logical digestion, the sewage dis-
charged from a building sewer. The ef-
fluent from such receptacle Is distrib-
uted for disposal through the soil and
settled solids and scum from the Unk
are pumped out periodically and
hauled to a treatment facility.
Storm-water or wastewater collec-
tion system means piping, pumps, con-
duits. and any other equipment neces-
sary to collect and transport the flow
of surface water run-off resulting from
precipitation, or domestic, commercial,
or Industrial wastewater to and from
retention areas or any areas where
treatment Is designated to occur. The
collection of storm water and
wastewater does not Include treatment
except where Incidental to convey-
ance.
Surface impoundment Is a natural
topographic depression, man-made ex-
cavation. or diked area formed primar-
ily of earthen materials (although It
may be lined with man-made mate ri-
als) that Is not an Injection well.
Tank 1s a stationary device designed
to contain an accumulation of regulat-
ed substances and constructed of non-
earthen materials (e.g.. concrete, steel,
plastic) that provide structural sup-
port.
Underground area means an under-
ground room, such as • basement,
cellar, shaft or vault, providing
enough space for physical inspection
of the exterior of the tank situated on
or above the surface of the floor.
Underground release means any be-
lowground release.
Underground storage tank or UST
means any one or combination of
tanks (Including underground pipes
connected thereto) that Is used to con-
tain an accumulation of regulated sub-
stances, and the volume of which (In-
cluding the volume of underground
pipes connected thereto) Is 10 percent
or more beneath the surface of the
ground. This term does not Include
any:
(a) Farm or residential tank of 1.100
gallons or less capacity used for stor-
ing motor fuel for noncommercial pur-
poses;
(b) Tank used for storing heating oil
for consumptive use on the premises
where stored;
(c) Septic tank;
(d) Pipeline faculty (Including gath-
ering lines) regulated under
(1) The Natural Oas Pipeline Safety
Act of IMS <48 VAC. App. 1«71, el
sea), or
(2) The Hazardous Liquid Pipeline
Safety Act of 1979 (49 UAC. App.
3001, et *eg.\ or
(3) Which Is an Intrastate pipeline
facility regulated under state laws
comparable to the provisions of the
law referred to In paragraph (dXl) or
of
this tcllon; Underwriters laboratories
Standard lllf. "Standard for Oil— Plber-
Reinforced P1»«1 tr Underground Storage
Tanks (or Petroleum Products": Underwrit-
er's labonurlei of Canada CAN4-SSI6-
MB3. "Standard for Helnloroed Plastic Un-
derground Tanks for Petroleum Products";
or American Society of Testing and Materi-
als Standard D40J1-6S, "Standard Specifica-
tion lor Qlass-yibcr-Relnforced Polyealer
Underground Petroleum Storage Tanks."
(3) The tank is constructed of steel
and catliodlcolly protected In the fol-
lowing manner
(I) The tank Is coated with a suitable
dielectric material;
(II) field-Installed cathodlc protec-
tion systems are designed by a corro-
sion expert;
(ill) Impressed current systems are
designed to allow determination of
current operating status as required In
| 200.31(c); and
(Iv) Cathodlc protection systems are
operated and maintained In accord-
ance with (280.31 or according to
guidelines established >e Imple-
menting agency; or
Non The following codes and standards
may be used to comply with paragraph
of this section:
(A) Steel Tank Institute "Specification lor
8TT-P1 System of External Corrosion Pro-
tection of Underground Steel Storage
Tanks";
(B) Underwriters Laboratories Standard
1146, "Corrosion Protection Systems for Un-
derground Storage Tanks";
-------
9180.20
40 era Oi. I (7-1-91 Edition)
ronment than part graphs (a) (1)
through (4) of this section.
(b) Piping. The piping that routinely
contains regulated substances and Is In
contact with the ground must be prop-
erly designed, constructed, and pro-
tected from corrosion In accordance
with a code of practice developed by a
nationally recognized association or In-
dependent testing laboratory as speci-
fied below:
(1) The piping Is constructed of fi-
berglass-reinforced plastic; or
Note The following code* and ittndtnb
may be used to comply with paragraph
Underwriters Laboratories Subject
911. "Ul> Lilted Non-Metal Pipe";
(B) Underwriter* Laboratories Standard
Ml. "Pipe Connectors for Flammable and
Combustible and LP Oaa";
(C) Underwriter* Laboratories of Canada
Oulde ULC-tin. "Olan Fiber Reinforced
Plastic Pipe and Fitting* for Flammable
Liquids"; and
Underwriter* Laboratories of Canada
Standard CAN 4-SS3S-MS1. "Flexible Un-
derground Rose Connector*."
(3) The piping la constructed of steel
and cathodlcally protected In the fol-
lowing manner
(I) The piping la coated with a suita-
ble dielectric material;
(II) Field-Installed cathodlc protec-
tion systems are designed by a corro-
sion expert;
(III) Impressed current systems are
designed to allow determination of
current operating status as required In
I 260.31(c); and
(lv) Cathodlc protection systems are
operated and maintained In accord-
ance with 1280.31 or guidelines estab-
lished by the Implementing agency; or
Note The following code* and standard*
may be used to comply with paragraph
(bx J) of thla section:
(A) National Fire Protection Association
Standard 30. "Flammable and Combustible
Liquids Code":
(B) American Petroleum Institute Publi-
cation 1618. "Installation of Underground
Petroleum Storage Systems":
American Petroleum institute Publica-
tion 1612. "Cathodlc Protection of Under-
ground Petroleum Storage Tanks and
Piping Systems"; and
(D> National Anoclatkm of Corrosion Bn-
gineer* Standard RP-OI-6#. "Control of Ex-
temal Corrosion on Submerged Metallic
Piping Systems."
(3) The piping la constructed of
metal without additional corrosion
protection measures provided that:
(I) The piping Is Installed at a site
that la determined by a corrosion
expert to not be corrosive enough to
cause It to have a release due to corro-
sion during Its operating life; and
(II) Owners and operators maintain
records that demonstrate compliance
with the requirements of paragraph
of thla section If:
972
tii»lmnassi>fs4 PiolartUw Apsncy
(I) Alternative equipment b used
that Is determined by the Implement-
ing agency to be no leas protective of
human health and the environment
than the equipment specified In para-
graph (cXl) (I) or (II) of this section;
or
(II) The U8T system Is filled by
transfers of no more than 26 gallons at
one time.
(d) Installation. All tanks and piping
must be properly Installed In accord-
ance with a code of practice developed
by a nationally recognised association
or Independent testing laboratory and
In accordance with the manufacturer's
Instructions.
No** Tank and piping system Installation
practices and procedures described In the
following codes may be used to comply with
the requirements of paragraph (d) of this
section:
(I) American Fstroleum Institute Publica-
tion 1615. "Installation of Underground Pe-
troleum Storage System"; or
(II) Petroleum Equipment Institute Publi-
cation RP100. "Recommended Practices for
Installation of Underground liquid Storage
Systems"; or
(III) American National Standards Insti-
tute Standard Bll.l. "Petroleum Refinery
Piping." and American National Standards
InaUtute Standard B31.4 "Liquid Petroleum
Transportation Piping System."
(e) Certification of installation. All
owners and operators must ensure
that one or more of the following
methods of certification, testing, or In-
spection Is used to demonstrate com-
pliance with paragraph (d) of this sec-
tion by providing a certification of
compliance on the U8T notification
form In accordance with 1280.22.
(1) The Installer has been certified
by the '*"* and piping manufacturers;
or
(3) The Installer has been certified
or licensed by the Implementing
agency; or .
(3> The Installation has been In-
spected and certified by a registered
professional engineer with education
and experience In U8T system Instal-
lation; or
(4) The Installation has been In-
spected and approved by the Imple-
menting agency; or
(5) All work listed In the manufac-
turer's Installation checklists haa been
completed; or
(M01I
(0) The owner and operator have
compiled with another method for en-
suring compliance with paragraph (d)
of this section that Is determined by
the Implementing agency to be no leas
protective of human health and the
environment.
• ttlil Upgiadlag *f *>lrtla> UW sya-
(a) Alternative* attowed. Not later
than December 33, 1998. all existing
U8T systems must comply with one of
the following requirements:
(1) New OBT system performance
standards under I 380.30;
(3) The upgrading requirements In
paragraphs (b) through (d) of this sec-
tion; or
(3) Closure requirements under sub-
part O of this part. Including applica-
ble requirements for corrective action
under subpart F.
(b) Tan* upgrading requirements.
Steel tanks must be upgraded to meet
one of the following requirements In
accordance with a code of practice de-
veloped by a nationally recognized as-
sociation or Independent testing labo-
ratory:
(i) Interior (Inlna A tank may be
upgraded by Internal lining If:
(I) The lining la Installed In accord-
ance with the requirements of
1380.33, and
(II) Within 10 years after lining, and
every ft years thereafter, the lined
tank Is Internally Inspected and found
to be structurally sound with the
lining still performing In accordance
with original design specifications.
(3) Cathodlc protection. A tank may
be upgraded by cathodlc protection If
the cathodlc protection system meets
the requirements of 1380.20(aM2> (II).
(Ill), and (lv) and the Integrity of the
tank Is ensured using one of the fol-
lowing methods:
(I) The tank Is internally Inspected
and assessed to ensure that the tank 1s
structurally sound and free of corro-
sion holes prior to Installing the ca-
thodlc protection system; or
(II) The tank haa been Installed for
less than 10 years and Is monitored
monthly for releases In accordance
with 1380.43 (d) through (h); or
073
-------
(UOD
40 CM Ch. I (7-1-91 KdHlon)
(111) The taiw .m been Installed for
less than 10 yean and Is aiwcunnd for
corrosion holes by conducting two (2)
tightness tests that meet the require-
menta of | 280.43(c). The tint tight-
ness test must be conducted prior to
Installing the cathodlc protection
system. The second tightness test
must be conducted between three (9)
and six (0) months following the first
operation of the rathodlc protection
system: or
(lv) The tank Is irnifiiwl for corro-
sion holes by a method that Is deter-
mined by the Implementing agency to
prevent releases in a manner that Is no
less protective of human health and
the environment than paragraphs
(b)(2) (I) through (Ul) of this section.
(9) Internal lining combined with
cathodtc protection. A tank may be
upgraded by both Internal lining and
cathodlc protection If:
(I) The lining Is Installed In accord-
ance with the requirements of
I 280J3; and
(U) The cathodlc protection system
meeu the requirements of
1280.20(a)(3) (U). (Ul), and (lv).
Non: The (aliowin* codes and standard*
may be used to comply wltb this section:
(A) American Pstroleum Institute Publi-
cation 1U1. "Recommended Prattles for
Uu Interior lining of Steel Under-
ground Storage Tanks";
(B) National Leak Prevention Aimclsllon
Standard Ml. "Spill Prevention. Minimum
10 Tear life Extension of Eilillng Steel Un-
derground Tank* by lining Without tba Ad-
dition of Cathodlc Protection";
(C) National Assoristlnn of Corrosion bt-
gtneers Standard RP-tl-M. "Control of Ex-
ternal Corrosion on Metallic Burled. Partial-
ly Burled, or Submerged liquid Storage
System*"; and
(D) American Petroleum Institute Publi-
cation IMX "Cathodlc Protection of Under-
ground Petroleum Storage Tanks and
Piping Systems."
(c) Piping upgrading requirement*.
MeUkl piping that routinely contains
regulated substances and Is in contact
with the ground must be cathodlcally
protected In accordance with a code of
practice developed by a nationally rec-
ognised association or Independent
testing laboratory and must meet the
requirements of 1280.20(b)(2) (11). (Ul),
and (lv).
None The oodas and standard* luted in
the note following 1280.20<2) may b«
used to oomply with this requirement.
(d) Spill and over/Ul prevention
equipment To prevent spilling and
overfilling associated with product
transfer to the U8T system, all exist-
ing DOT systems must comply with
new UST system spill and overfill pre-
vention equipment requirements speci-
fied In 1280.20(c).
I UMl Notification requirements.
(a) Any owner who brings an under-
ground storage Lank system Into use
after May 8. 1980, must within 30 days
of bringing such tank Into use, submit.
In the form prescribed In appendix I of
this part, a notice of existence of such
tank system to the state or local
agency or department designated In
appendix II of this part to receive
such notice.
Note Owners and operators of UST *ys-
terns that were In the ground on or after
May 8, 1M6, unities taken out ol operation
on or before January 1. 1014. were required
to notify the designated state or local
agency In accordance with the Hasardoua
and Solid Waste Amendments of 1M4. Pub.
1- M-014, on a form published by CPA on
November 8. IMA (SO PR 46402) unless
notice was given pursuant to section 101(0
of CERCLA. Owners and operators who
have not oompllert with the notification re-
quirements may use portion* I through VI
of the notification form nonlslrawl In Appen-
dix I of thl* part.
(b) In states where state law. regula-
tions, or procedures require owners to
use forms that differ from those set
forth In Appendix I of this part to ful-
fill the requirements of this section,
the state forms may be submitted In
lieu of the forma set forth In Appendix
I of this part. If a state requires that
Its form be used in lieu of the form
presented In this regulation, such
form must meet the requirements of
section 0002.
(c) Owners required to submit no-
tices under paragraph (a) of this sec-
tion must provide notices to the appro-
priate agencies or departments Identi-
fied In Appendix II of this part for
each tank they own. Owners may pro-
vide notice for several tanks using one
notification form, but owners who own
tanks located at more than one place
974
Environmental Protection Agency
of operation must fUe a separate noti-
fication form for each separate place
of operation.
(d) Notices required to be submitted
under paragraph (a) of this section
must provide ail of the Information In
sections I through VI of the pre-
scribed form (or appropriate state
form) for each tank for which notice
must be given. Notices for tanks In-
stalled after December 22, 1988 must
also provide all of the Information In
section VII of the prescribed form (or
appropriate state form) for each tank
for which notice must be given.
(e) All owners and operators of new
U8T systems must certify In the noti-
fication form compliance with the fol-
lowing requirements:
(1) Installation of tanks and piping
under 1280.20(e);
(2) Cathodlc protection of steel
tanks and piping under 1280.20 (a)
and (b);
(3) Financial responsibility i»ui»r
Subpart H of this part; and
(4) Release detection under || 280.41
and 280.42.
(f) All owners and operators of new
UST systems must ensure that the In-
staller certifies In the notification
form that the methods used to
the tanks and piping compiles with
the requirements in 1280.20(d).
-------
9 280.33
40 CHI Ch. I (7-1-91 Edition)
(c) UST systems with Impressed cur-
rent cathodlc protection systems must
also be Inspected every 60 days to
ensure the equipment is running prop-
erly.
(d) For U8T systems using cathodlc
protection, records of the operation of
the cathodlc protection must be main-
tained (In accordance with | 280.34) to
demonstrate compliance with the per-
formance standards In this section.
These records must provide the follow-
ing:
< 1) The results of the last three In-
spections required In paragraph (c) of
this section; and
(2) The results of testing from the
last two Inspections required In para-
graph (b) of this section.
• 280.31 Compatibility.
Owners and operators must use an
U8T system made of or lined with ma-
terials that are compatible with the
substance stored In the U8T system.
Note Owner* and operator* storing alco-
hol blends may use the following code* to
comply with the requirement* of this sec-
tion:
(a) American Petroleum Institute Publica-
tion isaa. "Storing and Handling Ethanol
and Oasollne-Elhanol Blenda at Distribu-
tion Terminals and Service SUtlons"; and
(b) American Petroleum Institute Publica-
tion 1871, "Storage and Handling of Oiao-
llne-Methanol/Coaolvent Blends at Distri-
bution Terminal* and Service Station*."
• 280.83 Repair* allowed.
Owners and operators of U8T sys-
tems must ensure that repairs will pre-
vent releases due to structural failure
or corrosion as long as the U8T system
Is used to store regulated substances.
The repairs must meet the following
requirements:
(a) Repairs to U8T systems must be
properly conducted In accordance with
a code of practice developed by t na-
tionally recognized association or an
Independent testing laboratory.
None The following code* and standard*
may be used to comply with paragraph (a>
of this section: National Fire Protection As-
sociation Standard SO. "Flammable and
Combustible Liquid* Code"; American Pe-
troleum Institute Publication 3300. "Repair-
Ins Crude Oil. Liquified Petroleum Oas. and
Product Pipelines"; American Petroleum In-
stitute Publication 1SJ1. "Recommended
Practice for the Interior Unlng of Existing
Steel Underground Storage Tanks"; and Na-
tional Leak Prevention Association Stand-
ard 831. "8plll Prevention. Minimum 10
Year Life Extension of Existing 8teel Un-
derground Tanks by Unlng Without the Ad-
dition of Cathodlc Protection."
(b) Repairs to fiberglass-reinforced
plastic tanks may be made by the
manufacturer's authorized representa-
tives or In accordance with a code of
practice developed by a nationally rec-
ognized association or an Independent
testing laboratory.
(c) Metal pipe sections and fittings
that have released product as a result
of corrosion or other damage must be
replaced. Fiberglass pipes and fittings
may be repaired In accordance with
the manufacturer's specifications.
(d) Repaired tanks and piping must
be tightness tested In accordance with
1280.43(c) and (280.44(b) within 30
days following the date of the comple-
tion of the repair except as provided In
paragraphs (d) (1) through (3), of this
section:
(1) The repaired tank Is Internally
Inspected In accordance with a code of
practice developed by a nationally rec-
ognized association or an Independent
testing laboratory; or
(2) The repaired portion of the U8T
system Is monitored monthly for re-
leases In accordance with a method
specified In | 280.43 (d) through (h>; or
(3) Another test method Is used that
Is determined by the Implementing
agency to be no leas protective of
human health and the environment
than those listed above.
(e) Within 6 months following the
repair of any c&thodlcally protected
U8T system, the cathodlc protection
system must be tested In accordance
with | 280.31 (b) and (c) U> ensure that
It is operating properly.
(f) U8T system owners and opera-
tors must maintain records of each
repair for the remaining operating life
of the U8T system that demonstrate
compliance with the requirements of
this section.
1180.34 Reporting and recordkeeping.
Owners and operators of UST sys-
tems must cooperate fully with Inspec-
tions. monitoring and testing conduct-
ed by the Implementing agency, as
076
Environmental Fm*cllds Agency
well as requests for document submis-
sion, testing, and monitoring by the
owner or operator pursuant to section
eoos of Subtitle I of the Resource
Conservation and Recovery Act, as
amended.
(a) Reporting. Owners and operators
must submit the following Information
to the Implementing agency:
(1) Notification for all U8T systems
(| 280.22), which Includes certification
of Installation for new UST systems
(| 280.20(e)).
(2) Reports of all releases Including
suspected releases (| 280.50). spills and
overfills (| 280.63), and confirmed re-
leases (| 280.61);
(3) Corrective actions planned or
taken Including Initial abatement
measures (I 280.02), Initial site charac-
terization (|280.«3). free product re-
moval (|380.M). Investigation of soil
and ground-water cleanup (1280.65).
and corrective action plan (| 380.69);
and
(4) A notification before permanent
closure or change-In-service (I 280.71).
(b) Recordkeeping. Owners and oper-
ators must maintain the following In-
formation:
(1) A corrosion expert's analysis of
site corrosion potential if corrosion
protection equipment Is not used
(| 280.20(a)(4); I 280.20(bXS».
(2) Documentation of operation of
corrosion protection equipment
(1280.31);
(3) Documentation of TJ8T system
repairs (1280.23(f));
(4) Recent compliance with release
detection requirements (I 280.45); and
(5) Results of the site Investigation
conducted at permanent closure
(| 280.74).
(c) AvailabUitw and Maintenance of
Records. Owners and operators must
keep the records required either
(1) At the U8T site and Immediately
available for Inspection by the Imple-
menting agency; or
(2) At a readily available alternative
site and be provided for Inspection to
the implementing agency upon re-
quest.
(3) In the case of permanent closure
records required under 1280.74.
owners and operators are also provid-
ed with the additional alternative of
mailing closure records to the Imple-
51*0.40
mmtlng agency If they SOTTot be kept
at the site or an alternative site as In-
dicated above.
None The recordkeeping *nd reporting re-
quirements In this section have been ap-
proved by the Office of Management and
Budset and have been assigned OMB Con-
trol No. losfr-ooea.
Subpart P. islsass MxHow
1280.40 General requirement* for all UST
systems.
(a) Owners and operators of new and
existing UST systems must provide a
method, or combination of methods,
of release detection that:
(1) Can detect a release from any
portion of the tank and the connected
underground piping that routinely
contains product;
(2) Is Installed, calibrated, operated,
and maintained In accordance with the
manufacturer's Instructions, Including
routine maintenance and service
checks for operablllty or running con-
dition; and
(3) Meets the performance require-
ments in 1180.43 or 280.44, with any
performance claims and their manner
of determination described In writing
by the equipment manufacturer or In-
staller. In addition, methods used
after the date shown In the following
table corresponding with the specified
method except for methods perma-
nently Installed prior to that date,
must be capable of detecting the leak
rate or quantity specified for that
method In the corresponding section
of the rule (also shown In the table)
with a probability of detection (Pd) of
0.95 and a probability of false alarm
(Pfa)of 0.05.
UsSBd
Sscflon
0«s*raNelinm
rnutf b* dmrnakMsd
MM Tts*
mo***
niimiiiB n two.
Qsu0n»

ITlSlllB ft If
T«tr^

MmkTsS
¦DOM
niiimsiw n **~
Q*u0na

s^wmiii **< <«•'
Mantolta
M
SH.44M
m» iyi ¦¦
¦044M
Psf— tt two
Ta*«

977
-------
{ 210.41
40 era Ch. I (7-1-91 Id It Ion)
(b) When a release detection method
operated In accordance with the per-
formance standards In 1280.43 and
1280.44 Indicates a release may have
occurred, owners and operators must
notify the Implementing agency In ac-
cordance with subpart SI
(c) Owners and operators of all U8T
systems must comply with the release
detection requirements of this subpart
by December 22 of the year listed In
the following table:
Schepuu for Phase-in of Release
Detection
Y«ar i|Mm
Ymt m
0*
han fitMM muclQit * toy
anew a of tm iw MoiM
MM
1806
1880
1881
1882
1889
anon 1886
or dU9
no
P

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(d) Any existing DOT system that
cannot apply a method of release de-
tection that compiles with the require-
ments of this subpart must complete
the clo*ure procedures in subpart O by
the date on which release detection la
required for that U8T system under
paragraph (c) of this section.
(61 PR 171M. Sept. 21. I8SS. aa amended at
M PR 17761. Apr. 37, 1B0O; U PR 2171S.
June 12. IBM; M FR 20. Jan. X 1M11
1180.41 Requirement* for petroleum U8T
systems.
Owners and operators of petroleum
U8T systems must provide release de-
tection for tanks and piping as follows:
(a) TanJts. Tanks must be monitored
at least every 30 days for releases
using one of the methods listed In
I 280.43 (d) through
-------
$ 760.43
(4) Dtllvn. *ie made through *
drop tube that extends to within one
foot of the tank bottom;
(5) Product dispensing ts metered
and recorded within the local stand-
ards for meter calibration or an accu-
racy of 6 cubic Inches for every 8 gal-
lons of product withdrawn; and
<6> The measurement of any water
level In the bottom of the tank la made
to the nearest orte-e'ffhth of an Inch at
least once a month.
Note Practices described In the American
Petroleum Inilltuto Publication Iflll. "Rec-
ommended Practice for Bulk Liquid Stock
Control at Retail Outlet*." may be used,
where applicable, aa guidance In meeting
the requirement* of this paragraph.
Tank Uohlnett letting. Tank
tightness testing (or another test of
equivalent performance) must be capa-
ble of detecting a 0.1 gallon per hour
leak rate from any portion of the tank
that routinely contains product while
accounting for the effects of thermal
expansion or contraction of the prod-
uct. vapor pockets, tank deformation,
evaporation or condensation, and the
location of the water table.
(d) Automatic tank gauging. Equip-
ment for automatic tank gauging that
tests for the loss of product and con-
ducts Inventory control must meet the
following requirements:
(1) The automatic product level
monitor test can detect a 0.2 gallon
per hour leak rate from any portion of
the tank that routinely contains prod-
uct; and
(2) Inventory control (or another
test of equivalent performance) Is con-
ducted In accordance with the require-
ments of | 280.43(a).
(e) Vapor monitoring. Testing or
monitoring for vapors within the soil
gas of the excavation zone must meet
the following requirements:
(1) The materials used as backfill are
sufficiently porous (e.g., gravel, sand,
crushed rock) to readily allow diffu-
sion of vapors from releases Into the
excavation area;
(2) The stored regulated substance,
or a tracer compound placed In the
tank system. Is sufficiently volatile
(e.g.. gasoline) to result In a vapor
level that Is detectable by the monitor-
ing devices located In the excavation
cone In the event of a release from the
tank;
(3) The measurement of vapors by
the monitoring device Is not rendered
Inoperative by the ground water, rain-
fall, or soil moisture or other known
Interferences so that a release could
go undetected for more than 30 days;
(4) The level of background contami-
nation In the excavation tone will not
Interfere with the method used to
detect releases from the tank;
(6) The vapor monitors are designed
and operated to detect any significant
Increase In concentration above back-
ground of the regulated substance
stored In the tank system, a compo-
080
Environmental ProlsctUn Agsncy
9210.43
nent or components of that substance,
or a tracer compound placed In the
tank system;
(8) In the U8T excavation sone, the
site Is assxiifd to ensure compliance
with the requirements in paragraphs
(e) (1) through (4) of this section and
to establish the number and position-
ing of monitoring wells that will detect
releases within the excavation sone
from any portion of the tank that rou-
tinely contains product; and
(7) Monitoring wells are clearly
marked and secured to avoid unau-
thorized access and tampering.
(f) Oround toater monitoring. Test-
ing or monitoring for liquids on the
ground water must meet the following
requirements:
(1) The regulated substance stored Is
Immiscible In water and has a specific
gravity of less than one;
(2) Ground water Is never more than
20 feet from the ground surface and
the hydraulic conductivity of the
soll(s) between the U8T system and
the monitoring wells or devkes Is not
less than 0.01 cm/sec (e.g.. the soil
should consist of gravels, coarse to
medium sands, coarse silts or other
permeable materials):
(3) The slotted portion of the moni-
toring well casing must be designed to
prevent migration of natural soils or
filter pack Into the well and to allow
entry of regulated substance on the
water table Into the well under both
high and low ground-water conditions;
(4) Monitoring wells shall be sealed
from the ground surface to the top of
the filter pack;
(ft) Monitoring wells or devices Inter-
cept the excavation sone or are aa
close to It as Is technically feasible;
(0) The continuous monitoring de-
vices or manual methods used can
detect the presence of at least one-
eighth of an Inch of free product on
top of the ground water In the moni-
toring wells;
(7) Within and Immediately below
the U8T system excavation sone. the
site la assessed to ensure compliance
with the requirements In paragraphs
(f) (1) through (5) of this section and
to establish the number and position-
ing of monitoring wells or devices that
will detect releases from any portion
of the tank that roi contains
product; and
(8) Monitoring wells are clearly
marked and secured to avoid unau-
thorised access and tampering.
(g) InUntitial monitoring. Intersti-
tial monitoring between the UBT
system and a secondary barrier Imme-
diately around or beneath It may be
used, but only If the system Is de-
signed. constructed and Installed to
detect a leak from any portion of the
tank that routinely contains product
and also meets one of the following re-
quirements:
(1) For double-walled U8T systems,
the sampling or testing method can
detect a release through the Inner wall
In any portion of the tank that rou-
tinely contains product;
Note Ttie provisions outlined In the Steel
Tank Institute's "Standard for Dual Wall
Underground Storage Tanks" may be used
as guidance for aspects of the design and
construction of underground ateel double-
walled tanks.
(3) For U8T systems with a second-
ary barrier within the excavation
sons, the sampling or testing method
used can detect a release between the
D8T system and the secondary bar-
rier;
(I) The secondary barrier around or
beneath the U8T system consists of
artificially constructed material that Is
sufficiently thick and Impermeable (at
least 10~* cm/sec for the regulated
substance stored) to direct a release to
the monitoring point and permit Its
detection;
(II) The barrier Is compatible with
the regulated substance stored so that
a release from the U8T system will
not cause a deterioration of the bar-
rier allowing a release to pass through
undetected;
(III) For cathodically protected
tanks, the secondary barrier must be
Installed so that It does not Interfere
with the proper operation of the ca-
thodlc protection system;
The ground water, soil moisture,
or rainfall will not render the testing
or sampling method used Inoperative
so that a release could go undetected
for more than 30 days;
(v) The site Is assessed to ensure
that the secondary barrier ts always
981
-------
9280.44
40 CHI Ch. I (7-1-91 Edition)
above the ground water and not In a
26-year flood plain, unless the barrier
and monitoring designs are for use
under iuch conditions; and,
(vl) Monitoring wells are clearly
marked and secured to avoid unau-
thorised accfM and tampering.
O) For tanks with an internally
fitted liner, an automated device can
detect a release between the Inner wall
of the tank and the liner, and the liner
Is compatible with the substance
stored.
(h) Other methods. Any other type
of release detection method, or combi-
nation of methods, can be used If:
(1) It can detect a 0.2 gallon per
hour leak rate or a release of 160 gal-
lons within a month with a probability
of detection of 0.86 and a probability
of false alarm of 0.06; or
(2) The Implementing agency may
approve another method If the owner
and operator can demonstrate that
the method can detect a release as ef-
fectively as any of the methods al-
lowed In paragraphs (c) through (h) of
this section. In comparing methods,
the Implementing agency shall consid-
er the size of release that the method
can detect and the frequency and reli-
ability with which It can be detected.
If the method Is approved, the owner
and operator must comply with any
conditions Imposed by the Implement-
ing agency on Its use to ensure the
protection of human health and the
environment.
1186.44 N«tMi of release istsctlaa for
piptag.
Each method of release detection for
piping used to meet the requirements
of | 280.41 must be conducted In ac-
cordance with the following:
(a) Automatic line teak detectora.
Methods which alert the operator to
the presence of a leak by restricting or
shutting off the flow of regulated sub-
stances through piping or triggering
an audible or visual alarm may be used
only If they detect leaks of I gallons
per hour at 10 pounds per square Inch
line pressure within 1 hour. An annual
test of the operation of the leak detec-
tor must be conducted In accordance
with the manufacturer's requirements.
-------
9280.53
40 CFR Ch. I (7.1-91 Edition)
f I80.M Rep* «nd cleanup at ipllU
and o*crfllk>.
(a) Owner* and operators of UST
systems must contain and Immediately
clean up a spill or overfill and report
to the Implementing agency within 34
hours, or another reasonable time
period specified by the Implementing
agency, and begin corrective action In
accordance with subpart F In the fol-
lowing cases:
(1) Spill or overfill of petroleum that
results In a release to the environment
that exceeds 25 gallons or another rea-
sonable amount specified by the Im-
plementing agency, or that causes a
sheen on nearby surface water; and
(2) Spill or overfill of a hazardous
substance that results In a release to
the environment that equals or ex-
ceeds Its reportable quantity under
CERCLA (40 CFR part 302).
(b) Owners and operators of UST
system* must contain and Immediately
clean up a spill or overfill of petrole-
um that Is leas than 25 gallons or an-
other reasonable amount specified by
the Implementing agency, and a spill
or overfill of a hazardous substance
that Is less than the reportable quanti-
ty. If cleanup cannot be accomplished
within 24 hours, or another reasonable
time period established by the Imple-
menting agency, owners and operators
must Immediately notify the Imple-
menting agency.
Norr Pursuant to 1(303.6 and 36B.40. a
release of a haiardous (ubstance equal to or
In excess of IU reportable quantity must
also be reported Immediately (rather than
wtthln 34 hours) to the National Response
Center under sections 103 and 103 of the
Comprehensive bivtronmental Response,
Compensation, and Liability Act of 1080 and
to appropriate state and local authorities
under Title lit of the Superfund Amend-
ments and Reauthorization Act of IBM.
Subpart f—ItltsN ¦••pom* and
CsmcHvs Action for UST Sys-
•«¦« Containing Potrolowai or
Maiardoas SwbstancM
• SM.M General.
Owners and operators of petroleum
or hazardous substance UST systems
must. In response to a confirmed re-
lease from the UST system, comply
with the requirements of this subpart
except for USTs excluded under
I 280.10(b) and UST systems subject to
RCRA Subtitle C corrective action re-
quirements under section 3004(u) of
the Resource Conservation and Recov-
ery Act, as amended.
• 180.41 Initial response.
Upon confirmation of a release In ac-
cordance with | 280.82 or after a re-
lease from the UST system Is Identi-
fied In any other manner, owners and
operators must perform the following
Initial response actions within 24
hours of a release or within another
reasonable period of time determined
by the Implementing agency:
(a) Report the release to the Imple-
menting agency (e.g.. by telephone or
electronic mall);
(b) Take Immediate action to pre-
vent any further release of the regu-
lated substance Into the environment;
and
(c) Identify and mitigate fire, explo-
sion, and vapor hazards.
¦ B0.il InlUal abatement nasiirts and
¦lie check.
(a) Unless directed to do otherwise
by the Implementing agency, owners
and operators must perform the fol-
lowing abatement measures:
(1) Remove as much of the regulated
¦ubstance from the UST system as Is
necessary to prevent further release to
the environment;
(2) Visually Inspect any aboveground
releases or exposed belowground re-
leases and prevent further migration
of the released substance Into sur-
rounding soils and ground water;
(3) Continue to monitor and miti-
gate any additional fire and safety
hazards posed by vapors or free prod-
uct that have migrated from the UST
excavation zone and entered Into sub-
surface structures (such as sewers or
basements);
(4) Remedy hazards posed by con-
taminated soils that are excavated or
exposed as a result of release confir-
mation. site Investigation, abatement,
or corrective action activities. If these
remedies Include treatment or disposal
of soils, the owner and operator must
comply with applicable 8tate and local
requirements;
984
Environmanto) Piotocllao Agency
(5) Measure for the presence of a re-
lease where contamination to most
likely to be present at . the UST site,
unless the presence and source of the
release have been confirmed in accord-
ance with the site check required by
I 280.62(b) or the closure site assess-
ment of 1280.72(a). In selecting
sample types, sample locations, and
measurement methods, the owner and
operator must consider the nature of
the stored substance, the type of back-
fill. depth to ground water and other
factors as appropriate for identifying
the presence and source of the release;
and
(6) Investigate to determine the pos-
sible presence of free product, and
begin free product removal as soon as
practicable and In accordance with
I 280.84.
(b) Within 20 days after release con-
firmation. or within another reasona-
ble period of time determined by the
Implementing agency, owners and op-
erators must submit a report to the
implementing agency summarizing the
Initial abatement steps taken under
paragraph (a) of this section and any
resulting Information or data.
• 380.43 Initial du dimdwltallw.
(a) Unless directed to do otherwise
by the Implementing agency, owners
and operators must assemble Informa-
tion about the site and the nature of
the release. Including Information
gained while confirming the release or
completing the Initial abatement
measures In I 280.60 and I 280.61. This
Information must Include, but la not
necessarily limited to the following:
(1) Data on the nature and estimat-
ed quantity of release;
(2) Data from available sources
and/or site Investigations concerning
the following factors: surrounding
populations, water quality, use and ap-
proximate locations of wells potential-
ly affected by the release, subsurface
soil conditions, locations of subsurface
¦ewers, cllmatologtcal conditions, and
land use;
(3) Results of the site check required
under I 280.62(aM6); and
(4) Results of the free product Inves-
tigations required under | 280.62(a)(6).
to be used by owners and operators to
1H0.64
determine whether free iCt must
be recovered under 1280.64.
(b) Within 40 days of release confir-
mation or another reasonable period
of time determined by the implement-
ing agency, owners and operators must
submit the Information collected in
compliance with paragraph (a) of this
section to the implementing agency in
a manner that demonstrates Its appli-
cability and technical adequacy, or In
a format and according to the sched-
ule required by the Implementing
agency.
1380.44 Free product removal.
At sites where Investigations under
I 280.62(a)(6) Indicate the presence of
free product, owners and operators
must remove free product to the maxi-
mum extent practicable as determined
by the Implementing agency while
continuing, as necessary, any actions
Initiated under II 280.61 through
280.63, or preparing for actions re-
quired under || 280.65 through 280.66.
In meeting the requirements of this
section, owners and operators must:
(a) Conduct free product removal In
a manner that minimizes the spread of
contamination into previously uncon-
taminated tones by using recovery and
disposal techniques appropriate to the
hydrogeologlc conditions at the site,
and that properly treats, discharges or
disposes of recovery byproduct* In
compliance with applicable local. State
and Federal regulations;
(b) Use abatement of free product
migration as a minimum objective for
the design of the free product removal
system;
(c) Handle any flammable products
In a safe and competent manner to
prevent fires or explosions; and
(d) Unices directed to do otherwise
by the Implementing agency, prepare
and submit to the Implementing
agency, within 45 days after confirm-
ing a release, a free product removal
report that provides at least the fol-
lowing Information:
(1) The name of the peraon(s) re-
sponsible for Implementing the free
product removal measures;
(2) The estimated quantity, type,
and thickness of free product observed
985
-------
fi 180.43
or mtuuted _ wtlla, boreholes, ud
excavations;
(3) The type of free product recov-
ery system used;
(4) Whether any discharge will take
place on-site or off-site during the re-
covery operation and where thla dis-
charge will be located;
(6) The type of treatment applied to,
and the effluent quality expected
from, any discharge;
(0) The steps that have been or are
being taken to obtain necessary per-
mits for any discharge; and
(7) The disposition of the recovered
free product.
I ttl.lt ImMllpltom for sell aad
gHMud-waur riwuy.
(a) In order to determine the full
extent and location of soils contami-
nated by the release and the presence
and concentrations of dissolved prod-
uct contamination In the pound
water, owners and operators must con-
duct Investigations of the release, the
release site, and the surrounding area
possibly affected by the release If any
of the following conditions exist:
(1) Then Is evidence that ground-
water wells have been affected by the
release (e.g.. as found during release
confirmation or previous corrective
action measures);
(2) Free product Is found to need re-
covery In compliance with ft 280.64;
(I) There Is evidence that contami-
nated soils may be In contact with
ground water (e.g., as found during
conduct of the Initial response meas-
ures or Investigations required under
II 280.00 through 280.64); and
(4) The Implementing agency re-
quests an Investigation, baaed on the
potential effects of contaminated soil
or ground water on nearby surface
water and ground-water resources.
(b) Owners and operators must
submit the Information collected
under paragraph (a) of thla section as
soon as practicable or In accordance
with a schedule established by the Im-
plementing agency.
I IW.M Corrective actioa piaa.
(a) At any point after reviewing the
Information submitted In compliance
with | 280.61 through 1280.68, the im-
plementing agency may require
40 CHI Cb. I (7-1-91 Sdlttan)
owners and operators to submit addi-
tional Information or to develop and
submit a corrective action plan for re-
sponding to contaminated soils and
ground water. If a plan Is required,
owners and operators must submit the
plan according to a schedule and
format established by the Implement-
ing agency. Alternatively, owners and
operators may, after fulfilling the re-
quirements of 1280.61 through
I 280.68, choose to submit a corrective
action plan for responding to contami-
nated soil and ground water. In either
case, owners and operators are respon-
sible for submitting a plan that pro-
vides for adequate protection of
human health and the environment as
determined by the Implementing
agency, and must modify their plan as
necessary to meet this standard.
(b) The Implementing agency will
approve the corrective action plan
only after ensuring that Implementa-
tion of the plan will adequately pro-
tect human health, safety, and the en-
vironment. In making this determina-
tion. the Implementing agency should
consider the following factors as ap-
propriate:
(1) The physical and chemical char-
acteristics of the regulated substance.
Including Its toxicity, persistence, and
potential for migration;
(2) The hydrogeologlc characteris-
tics of the facility and the surrounding
area;
(8) The proximity, quality, and cur-
rent and future uses of nearby surface
water and ground water,
(4) The potential effects of residual
contamination on nearby surface
water and ground water
(6) An exposure assessment; and
(6) Any information assembled In
compliance with thla subpart.
Upon approval of the corrective
action plan or as directed by the Im-
plementing agency, owners and opera-
tors must Implement the plan. Includ-
ing modifications to the plan made by
the Implementing agency. They must
monitor, evaluate, and report the re-
sults of Implementing the plan In ac-
cordance with a schedule and In a
format established by the Implement-
ing agency.
(d) Owners and operators may. In
the Interest of minimising envlron-
086
tnvlronisntol frotocMoa Agency
<28071
mental contamination and promoting
more effective cleanup, begin cleanup
of soil and ground water before the
corrective action plan Is approved pro-
vided that they:
<1) Notify the Implementing agency
of their Intention to begin cleanup;
(2) Comply with any conditions Im-
posed by the implementing sgency. In-
cluding halting cleanup or mitigating
adverse consequences from cleanup ac-
tivities; and
(3) Incorporate these self-initiated
cleanup measures In the corrective
action plan that Is submitted to the
Implementing agency for approval.
0 ttt.17 Public participation
(a) For each confirmed release that
requires a corrective action plan, the
Implementing agency must provide
notice to the public by means designed
to reach those members of the public
directly affected by the release and
the planned corrective action. Thla
notice may include, but Is not limited
to. public notice in local newspapers,
block advertisements, public service
announcements, publication In a state
register, letters to Individual house-
holds, or personal contacts by field
staff.
(b) The implementing agency must
ensure that site release Information
and decisions concerning the correc-
tive action plan are made available to
the public tor Inspection upon request.
(c) Before approving a corrective
action plan, the implementing agency
may hold a public meeting to consider
comments on the proposed corrective
action plan If there is sufficient public
Interest, or for any other reason.
(d) The Implementing agency must
give public notice that compiles with
paragraph (a) of thla section If imple-
mentation of an approved corrective
action plan does not achieve the estab-
lished cleanup levels In the plan and
termination of that plan Is under con-
sideration by the implementing
agency.
Subpart Q—Out-«f-Service UST
System and Closure
S 280.70 Temporary closure.
(a) When an UST system Is tempo-
rarily closed, owners and operators
must continue operation mainte-
nance of corrosion protection In ac-
cordance with 1280.31, and any re-
lease detection In accordance with sub-
part D. Subparts E and F must be
compiled with If a release is suspected
or confirmed. However, release detec-
tion Is not required as long as the UST
system Is empty. The UST system is
empty when all materials have been
removed using commonly employed
practices so that no more than 2.5 cen-
timeters (one Inch) of residue, or 0.3
percent by weight of the total capacity
of the UST system, remain In the
system.
(b) When an UST system Is tempo-
rarily closed for 3 months or more,
owners and operators must also
comply with the following require-
ments:
(1) Leave vent lines open and func-
tioning; and
(2) Cap and secure all other tinea,
pumps, manways, and ancillary equip-
ment.
(c) When an UST system Is tempo-
rarily closed for more than 12 months,
owners and operators must perma-
nently close the U8T system If It docs
not meet either performance stand-
ards In | 280.20 for new U8T systems
or the upgrading requirements in
I 280.21. except that the spill and over-
fill equipment requirements do not
have to be met. Owners and operators
must permanently close the substand-
ard UST systems at the end of this 12-
month period In accordance with
11280.71-280.74, unless the imple-
menting agency provides an extension
of the 12-month temporary closure
period. Owners and operators must
complete a site assessment in accord-
ance with | 280.72 before such an ex-
tension can be applied for.
0 280.71 Permanent closure and changes-
in-eerrlcc.
(a) At least 30 days before beginning
either permanent closure or a change-
In-service under paragraphs (b) and (c)
of this section, or within another rea-
sonable time period determined by the
Implementing agency, owners and op-
erators must notify the Implementing
agency of their Intent to permanently
dose or make the change-in-service.
B87
-------
9 280.77
40 CFR Ch. I (7.1-91 RdMon)
iinlai such action la In response to
corrective action. The required assess-
ment of the excavation cone under
I 380.73 muat be performed after noti-
fying the Implementing agency but
before completion of the permanent
closure or a change-In-service.
(b) To permanently close a tank,
owners and operators must empty and
clean It by removing all liquids and ac-
cumulated aludgea. All tanks taken out
of service permanently muat also be
either removed from the ground or
filled with an Inert solid material.
(c) Continued use of an U8T system
to store a non-regulated substance Is
considered a change-In-service. Before
a change-In-service, owners and opera-
tors must empty and clean the tank by
removing all liquid and accumulated
sludge and conduct a site assessment
In accordance with I 280.72.
Notk The following cleaning and closure
procedures mar be used to comply with Uita
section:
(A) American Petroleum Institute Recom-
mended Practice 1S04, "Removal and Dis-
posal of Used Underground Petroleum Stor-
ase Tanks":
American Petroleum Institute Publi-
cation 2016. "Cleaning Petroleum Storage
Tanks";
(C) American Petroleum Institute Recom-
mended Practice 1911. "Interior Lining of
Underground Storage Tanks." mar be used
•a guidance for compliance with this sec-
tion: and
(D) The National Institute for Occupa-
tional Safety and HealJi "Criteria for a
Recommended Btandard * * • Working In
Confined Space" mar be used as guidance
for conducting safe closure procedures at
soma hazardous substance tanka.
• 180.73 Assessing the sits at ckworw or
cfcsaga-ln si iiha.
(a) Before permanent closure or a
change-in-service is completed, owners
and operators must measure for the
presence of a release where contami-
nation Is most likely to be present at
the U8T site. In selecting sample
types, sample locations, and measure-
ment methods, owners and operators
must consider the method of closure,
the nature of the stored substance,
the type of backfill, the depth to
ground water, and other factors appro-
priate for Identifying the presence of a
release. The requirements of this sec-
tion are satisfied if one of the external
release detection methods allowed In
1280.43 (e) and of this section, or by
any other manner, owners and opera-
tors must begin corrective action In ac-
cordance with subpart P.
• 3M.73 Applicability to previously cloeed
U8T systems.
When directed by the Implementing
agency, the owner and operator of an
U8T system permanently cloeed
before December 22. 1988 must assess
the excavation zone and close the UST
aystem In accordance with this subpart
If releases from the U8T may. In the
Judgment of the Implementing agency,
pose a current or potential threat to
human health and the environment
¦ 180.74 Closure records.
Owners and operators must main-
tain records In accordance with
I 280.34 that are capable of demon-
strating compliance with closure re-
quirements under this subpart. The re-
sults of the excavation sone assess-
ment required In 1280.72 must be
maintained for at least S yean after
completion of permanent closure or
change-In-service In one of the follow-
ing waya:
(a) By the owners and operators who
took the UST system out of service;
(b) By the current owners and opera-
tors of the UST system site: or
(c> By mailing these records to the
Implementing agency If they cannot
be maintained at the closed facility.
Subpart H Financial iMpamftHHy
SouaoE S3 PR 43370, Oct. 38. IMS. unlesa
otherwise noted.
• 380.98 Applicability.
(a> This subpart applies to owners
and operators of all petroleum under-
ground storage tank systems
exoept as otherwise provided In this
section.
988
Invlronmanlol Protection Agency
(b) Owners and operators of petrole-
um UST systems are subject to these
requirements If they are In operation
on or after the date for compliance es-
tablished In | 280.01.
(c) State and Federal government
entitles whose debts and liabilities are
the debts and liabilities of a state or
the United States are exempt from the
requirements of this subpart.
(d) The requirements of this subpart
do not apply to owners and operators
of any UST system described In
I 280.10 .
(e) If th« owner and operator of a
petroleum underground storage tank
are separate persons, only one person
Is required to demonstrate financial
responsibility; however, both parties
are liable In event of noncompliance.
Regardless of which party compiles,
the date set for compliance at a par-
ticular facility Is determined by the
characteristics of the owner as set
forth In 1280.91,
• 380.31 Compliance tfatea.
Owners of petroleum underground
storage tanks are required to comply
with the requirements of this subpart
by the following dates:
(a) All petroleum marketing firms
owning 1,000 or more U8Ts and all
other U8T owners that report a tangi-
ble net worth of $20 million or more to
the UjB. Securities and Exchange
Commission (SEC). Dun and Brad-
street, the Energy Information Admin-
istration. or the Rural Electrification
Administration; January 24. 1989,
except that compliance with
|280.94 All local government entitles; one
year from the date of promulgation of
additional mechanisms for use by local
government entitles to comply with fi-
nancial responsibility requirements for
M0.M
underground storage tanks containing
petroleum.
IBS PR 43370. Oet 38. 1988. as amended at
H PR MSI Feb. 3. 108*: 68 PR 1SM7. May
3. IBM: 68 PR 46036. Oct. 31. 1900]
• 380.93 Deflattlea of terms.
When used In this subpart, the fol-
lowing terms shall have the meanings
given below:
(a) Accidental release means any
sudden or nonsudden release of petro-
leum from an underground storage
tank that results In a need for correc-
tive action and/or compensation for
bodily Injury or property damage nei-
ther expected nor Intended by the
tank owner or operator.
(b) Bodily Infury shall have the
meaning given to this term by applica-
ble state law; however, this term shall
not Include those liabilities which,
consistent with standard Insurance In-
dustry practices, are excluded from
coverage In liability Insurance policies
for bodily Injury.
(c) Controlling interest means direct
ownership of at least 80 percent of the
voting stock of another entity.
(d) Director of the Implementing
Agency means the EPA Regional Ad-
ministrator, or. In the case of a state
with a program approved under sec-
tion 9004. the Director of the designat-
ed state or local agency responsible for
carrying out an approved UST pro-
gram.
(e) financial reporting wear means
the latest consecutive twelve-month
period for which any of the following
reports used to support a financial test
Is prepared:
(1) a 10-R report submitted to the
SEC;
(2) an annual report of tangible net
worth submitted to Dun and Brad-
street; or
(3) annual reports submitted to the
Energy Information Administration or
the Rural Electrification Administra-
tion.
"Financial reporting year" may thus
comprise a fiscal or a calendar year
period.
(f) Legal defense cost Is any expense
that an owner or operator or provider
of financial assurance Incur* In de-
089
-------
{ 280.93
tending against or action*
brought,
(1) By EPA or a state to require cor-
rective action or to recover the cost* ol
corrective action;
(2) By or on behalf of a third party
for bodily injury or property damage
caused by an accidental releaae; or
<9) By any person to enforce the
terms of a financial assurance mecha-
nism.
(g) Occurrence meana an accident.
Including continuous or repeated ex-
posure to conditions, which results In
a releaae from an underground storage
tank.
None This definition Is Intended to assist
In lb* niwWmiUmHng of lltese regulation*
and la not Intended either to limit the
meaning of "occurrence" In a «ajr that con-
flicts with standard Insurance ussgs or to
prevent the use of other standard Insurance
terms In place ol "occurrenna **
(h) Owner or operator, when the
owner or operator are separate parties,
refers to the party that Is obtaining or
has obtained financial assurances.
of this section.
-------
9 280.95
40 cm Ch-1 (7-1-91 EdHUn)
pass the financial test of selMnuur-
inc«, the owner or operator, and/or
guarantor muat meet the criteria of
paragraph (b) or (c> of thla section
btmd on year-end financial statements
for the latest completed fiscal year.
(b)( 1) The owner or operator, and/or
guarantor, must have a tangible net
worth of at least ten times:
(I) The total of the applicable aggre-
gate amount required by 1280.93,
based on the number of underground
storage tanks for which a financial
test Is used to demonstrate financial
responsibility to EPA under this sec-
tion or to a state Implementing agency
under a state program approved by
EPA under 40 CFR part 381;
(II) The sum of the corrective action
cost estimates, the current closure and
post-closure care cost estimates, and
amount of liability coverage for which
a financial test la used to demonstrate
financial responsibility to EPA under
40 CFR 364.101, 304.143, 3«4.14S,
36ft. 143. 166.145, 394.147, and 365.147
or to a state Implementing agency
under a state program authorised by
EPA under 40 CFR part 771; and
(lit) The sum of current plugging
and abandonment cost estimates for
which a financial test Is used to dem-
onstrate financial responsibility to
EPA under 40 CFR 144.03 or to a state
Implementing agency under a state
program authorised by EPA under 40
CFR part 145.
(3) The owner or operator, and/or
guarantor, must have a tangible net
worth of at least 110 million.
(3) The owner or operator, and/or
guarantor, must have a letter signed
by the chief financial officer worded
as specified In paragraph
for the "amount of liability coverage"
each time specified In that section.
(2) The fiscal year-end financial
statements of the owner or operator,
and/or guarantor, must be examined
by an Independent certified public ac-
countant and be accompanied by the
accountant's report of the examina-
tion.
(31 The firm's year-end financial
statements cannot Include an adverse
auditor's opinion, a disclaimer of opin-
ion, or a "going concern" qualification.
(4> The owner or operator, and/or
guarantor, must have a letter signed
by the chief financial officer, worded
as specified In paragraph (d) of this
•ectlon.
(8) If the financial statements of the
owner or operator, and/or guarantor,
are not submitted annually to the U.S.
Securities and Exchange Commission,
the Energy Information Administra-
tion or the Rural Electrification Ad-
ministration, the owner or operator,
and/or guarantor, must obtain a spe-
cial report by an Independent certified
public accountant stating that:
(I) He has compared the data that
the letter form the chief financial offi-
cer specifies as having been derived
from the latest year-end financial
statements of the owner or operator,
and/or guarantor, with the amounts
In such financial statements; and
(II) In connection with that compari-
son. no matters came to his attention
which caused him to believe that the
specified data should be adjusted.
(d) To demonstrate that It meets the
financial test under paragraph (b> or
(c) of this section, the chief financial
officer of the owner or operator, or
guarantor, must sign, within 130 days
of the clow of each financial reporting
year, as defined by the twelve-month
period for which financial statements
used to support the financial test are
prepared, a letter worded exactly as
follows, except that the Instructions In
brackets are to be replaced by the rele-
902
'nvlrenmental PntodlM A»anty
mw
rant information and the brackets de-
leted:
Lrrra no* Cmsr Pnucui Omen
I am the chief financial officer of (Insert:
lumt and addreaa of the owner or operator,
or guarantorl. Thla letter la In support of
the iiw of (Inaert: "the financial teat of aelf-
Inaurance." and/or "guarantee"] to demon-
¦trate financial responsibility for I Inaert:
"taking corrective action" and/or "eomnen-
¦atlng third partlea for bodily Injury and
property damage"! cauaed by (Inaert: "gud-
dent accidentia! reteaaea" and/or "nonsud-
den accidentia! releaaes") In the amount of
at leaat (Inaert: dollar amount] per occur-
rence and (Inaert: dollar amount) annual ag-
gregate arlalng from operating (an) under-
ground atorage tank(a).
Underground atorage tonka at the follow-
ing facllltlea are aaaured by this financial
teat or a financial teat under an authorised
State program by this (Inaert: "owner or op-
erator." and/or "guarantor"): (List for each
facility: the name and addreaa of the facility
where tanka aaaured by thla financial teat
are located, and whether tanka are assured
by thla financial teat or a financial test
under a 8tale program approved under 40
CFR part 381. If aeparate mechaniams or
corablnatlona of mechanlsma are being used
to asaure any of the tanka at thla facility.
Ilit each tank aaaured by this financial test
or a financial test under a State program
authorised under 40 CFR part 2S1 by the
tank Identification number provided In the
notification submitted pursuant to 40 CFR
280 22 or the corresponding State require-
ments.!
A IInsert: "financial test." and/or "guar-
antee") Is also used by this (Insert: "owner
or operator," or "guarantor") to demon-
strate evidence of financial reapondblllty in
the following amounts under other EPA
regulationa or state programs authorised by
EPA under 40 CFR parts >71 and 145:
EPA JUpulatUma Amount
Closure (|| 364.149 and
268.143) $
Post-Closure Care
(II 264.146 and 365.146) $
Liability Coverage
(|| 264.147 and 365.147) $
Corrective Action
(11 264.101(b)) t
Plugging and Abandonment
(1 144.63) 1
Closure $
Post-Closure Care $
Llabllltly Coverage — $
Corrective Action ... $
EPA Regulation) amount
Plugging and Abandonment... $
Total..- •
This (Insert: "owner or operator." or
"guarantor"] has not received an adverse
opinion, a disclaimer of opinion, or a "going
concern" qualification from an Independent
auditor on hta financial statements for the
latest completed fiscal year.
(PUl In the Information for Alternative I
If the criteria of paragraph (b) of 11S0.H
are being used to demonstrate compliance
with the financial test requirements. Pill In
the Information for Alternative II If the cri-
teria of paragraph (c> of I 380.98 are being
uaed to demonatrate compliance with the fi-
nancial teat requirements.)
Alternative I
1. Amount of annual 178T
aggregate coverage
being assured by a fi-
nancial test, and/or
guarantee 6
2. Amount of corrective
action, closure and
post-closure care
costs, liability cover-
age. and plugging and
abandonment costs
covered by a financial
test, and/or guarantee.. 9
5. 8um of lines 1 and 3 $
4. Total tangible assets I
6. Total liabilities (If any
of the amount report-
ed on line 9 Is Includ-
ed In total liabilities,
you may deduct that
amount from this line
and add that amount
to line 61 6
6. Tangible net worth
(subtract line S from
line 41 1
Yes No
7. Is line 6 at least $10 mll-
llon?..~ _
8. Is line 6 at least 10
times line 3?„ —
#. Have flnandal state-
ments for the latest
fiscal year been filed
with the Securities
and Exchange Com-
mission? ~. _
903
-------
g 2*0.93
Alternative /—Continued
10. Have financial slate-
menu for the lftteat
fiscal year been (Ued
with the Energy In-
formation Administra-
tion? _
11. Have financial state-
menU for the lastest
fiscal year been filed
with the Rural Elec-
trification Administra-
tion? _
IX Has financial Informa-
tion been provided to
Dun and Bradotreet,
and has Dun and
Bradstreet provided a
financial strength
rating of 4A or 6A?
(Answer "Yea" only If
both criteria have
been met,]- — _
Alternative //
1. Amount of annual OST
aggregate coverage
being assured by a
test, and/or guarantee-$
2. Amount of corrective
action, closure and
post-closure can
coats, liability cover-
age. and plugging and
abandonment coats
covered by a financial
test, and/or guarantee.. $
3. Sum of line* 1 and 3 .. $
4. Total tangible asset*. 1
6. Total liabilities tlf any
of the amount report-
ed on line > Is Includ-
ed In total liabilities,
you may deduct that
amount from this line
and add that amount
to line 0] $
fl. Tangible net worth
{subtract line ft tram
line 41 —0
7. Total assets In the DA
(required only If less
than 90 percent of
assets are located In
the DAI 1
Tes No
0. Is line 0 at least $10 mil-
lion? e
40 CM Ch. I (7-1-91 KdHloi,)
Alternative /—Continued
0. Is line 0 at least 0 times
lines? _
10. Are at least 00 percent
of assets located In
the U.S.? (If "No."
complete line 11.1
11. is line 7 at least A times
line 3? _
(Fill In either lines 11-16 or lines 16-
18:1
12. Current assets $
13. Current liabilities
14. Net working capital
[subtract line 13 from
line 121
Yes No
1ft. Ii line 14 at least 0
times line 3? _
10. Current bond rating of
most recent bond
Issue _
17. Name of rating service _
10. Date of maturity of
bond _
1ft. Have financial state-
ment* for the latest
fiscal year been filed
with the 8EC. the
Energy Information
Administration, or the
Rural Electrification
Administration? —
(If "No." please attach a report from u
Independent certified public iccouoUnl cer-
tifying that there are no material differ-
ences between Ute data as reported In lines
4-lS above and the financial statements for
the latest fiscal year.)
tFor both Alternative I and Alternative II
complete the certification with this state-
ment.]
1 hereby certify that the wording of Oil*
letter Is IdnnUral to the wording apedfled in
40 cnt part aao.BMd) as such regulation*
were conaUtuted on the date shown Immedi-
ately below.
(Signature]
(Name)
(TtUe)
(Date]
(e) If an owner or operator using the
teat to provide financial assurance
finds that he or she no longer meets
the requirements of the financial teat
based on the year-end financial state-
ments, the owner or operator must
004
invlronmento) Protection Agency
obtain alternative coverage within 160
days of the end of the year for which
financial statements have been pre-
pared.
(f) The Director of the Implement-
ing agency may require reports of fi-
nancial condition at any time from the
owner or operator, and/or guarantor.
If the Director finds, on the basis of
such reports or other information,
that the owner or operator, and/or
guarantor, no longer meets the finan-
cial test requirements of | 200.86(b) or
(c) and (d), the owner or operator
must obtain alternate coverage within
30 days after notification of such a
finding.
(g) If the owner or operator falls to
obtain alternate assurance within 160
days of finding that he or she no
longer meets the requirements of the
financial test based on the year-end fi-
nancial statements, or within 30 days
of notification by the Director of the
Implementing agency that he or ahe
no longer meets the requirements of
the financial test, the owner or opera-
tor must notify the Director of such
failure within 10 days.
1280.96 Guarantee.
(a) An owner or operator may satisfy
the requirements of 1200.03 by obtain-
ing a guarantee that conforms to the
requirements of this section. The
guarantor must be:
(1) A firm that (1) possesses a con-
trolling Interest In tbo owner or opera-
tor, (11) possesses a controlling Interest
in a firm described under paragraph
(aXIXt) of this section; or. (Ill) Is con-
trolled through stock ownership by a
common parent firm that possesses a
controlling Interest In the owner or op-
erator; or.
(2) A firm engaged In a substantial
business relationship with the owner
or operator and Issuing the guarantee
as an act Incident to that business re-
lationship.
.
(c) The guarantee must be worded as
follows, except that Instructions In
brackets are to be replaced with the
relevant Information and the brackets
deleted:
Osootb
Guarantee made tola (date! by (name of
guaranteeing entity), a hmlnraa enUty orga-
nised under the laws of the state of (name
of state), herein referred to as guarantor, to
(the atate Implementing agency) and to any
and aU third parties, and obligees, on behalf
of fowner or operator) of 1 business ad-
dress].
Medial*.
(Ik Guarantor meets or exceeds the finan-
cial test criteria of <0 CKR UO.M (b> or
and (d) and agrees to comply with the re-
quirements for guarantors as specified In 40
CPR 260.M(b).
(2) I Owner or operator) owns or operates
the following underground storage tsnk(s)
covered by this guarantee: (List the number
of tanks at each facility and the named)
and addressees) of the facUlty(lea) where
the tanks are located. If more than one in-
strument Is used to assure different tanks at
any one facility, for each tank covered by
this instrument. Hat the tank idenUflcatlon
number provided in the notlflcaUon submit-
ted pursuant to 40 CFR 360.23 or the corre-
aponding atate requirement, and the name
and address of the faculty.) This guarantee
satisfies 40 CKH part 360. subpart 11 re-
quirements for sssuring funding for (insert:
"taking corrective action" and/or "compcn-
995
-------
9 280.94
40 cm Ok I (7-1-91 MIHm)
aallna third parties for bodily Injury tnd
property damage caused by" either "sudden
accidental releases" or "nonsudden acciden-
tal releases" or "accidental release*": If cov-
erage Is different for different tank* or loca-
tion*. Indicate the type of coverage applica-
ble to each tank or location] arising from
operating the above-Identified underground
•torace tank(s) In the amount of (Insert
dollar amount) per occurrence and (Insert
dollar amount) annual aggregate.
(3) I Insert appropriate phrase: "On behalf
of our subsidiary" (If guarantor Is corporate
parent of the owner or operator); "On
behalf of our affiliate" (If guarantor Is a re-
lated firm of the owner or operator); or "In-
cident to our business relationship with" (If
guarantor Is providing the guarantee as an
Incident to a substantial business relation-
ship with owner or operator)! (owner or op-
erator). guarantor guarantees to I Imple-
menting agency) and to any and all third
parties that:
In the event that (owner or operator) falls
to provide alternative coverage within 00
days after receipt of a notice of cancellation
of this guarantee and the (Director of the
Implementing agency] has determined or
suspects that a release has occurred at an
underground storage tank covered by thla
guarantee, the guarantor, upon instruetlona
from the (Director), shall fund a standby
trust fund In accordance with the provisions
of 40 CFR 180.108, |n an amount not to
exceed the coverage limits specified above.
In the event that the (Director) deter-
mines that (owner or operator) has failed to
perform corrective action for releaaes aris-
ing out of the operation of Ute above-Identi-
fied tank(s) In accordance with 40 CPH part
380. subpart F. the guarantor upon written
Instructions from the (Dtreetorl shall fund
a standby trust In accordance with the pro-
visions of 40 CFR 380.108. In an amount not
to eiettd the coverage limits specified
above.
If (owner or operator) falls to satisfy a
judgment or award based on a determina-
tion of liability for bodily Injury or property
damage to third parties caused by
("sudden" and/or "nonsudden") accidentia]
releaaes arising from the operation of the
above-Identified tank(s). or falls to pay an
amount agreed to In settlement of a claim
artsing from or alleged to arise from such
Injury or damage, the guarantor, upon writ-
ten Instructions front the (Dtreetorl. shall
fund a standby trust in accordance with the
provisions of 40 CFR 300.108 to satisfy such
judgment**). awantts). or settlement
agreemenUa) up to the limits of coverage
specified above.
(4) Guarantor agrees that If. at the end of
any fiscal year before cancellation of this
guarantee, the guarantor falls to meet the
financial test criteria of 40 CFR SM.N (b)
or (c) and . guarantor shall send within
ISO days of such failure, by certified m.fi
notice to (owner or operator). The guaran-
tee will terminate 110 days from the date of
receipt of the notice by (owner or operator 1.
as evidenced by the return receipt.
(B) Ouarantor agree* to notify [owner or
operator) by certified mall of a voluntary or
Involuntary proceeding under Title 1|
(Bankruptcy). O.8. Code naming guarantor
as debtor, within 10 days after commence-
ment of the proceeding.
(A) Ouarantor agrees to remain bound
under this guarantee notwithstanding any
modification or alteration of any obligation
of (owner or operator) pursusuit to 40 CVR
part 380.
(11 Ouarantor agrees to remain bound
under this guarantee for so long as (owner
or operator) must comply with the applica-
ble financial responsibility requirements of
40 CFR part 380. subpart H for the above-
IdenUfled tank(t). except that guarantor
may cancel this guarantee by sending notice
by certified mall to (owner or operator),
such cancellation to become effective no
earlier than 130 days after receipt of such
notice by (owner or operator), as evidenced
by the return receipt.
(8) The guarantor's obligation does not
apply to any of the following:
(a) Any obligation of (Insert owner or op-
erator) under a workers' compensation, dis-
ability benefits, or unemployment compen-
sation taw or other similar law;
(b) Bodily Injury to an employee Of (Insert
owner or operator) arising from, and In the
eourse of. employment by (Insert owner or
operator);
(c) Bodily Injury or property damage aris-
ing from the ownership, maintenance, use.
or entrustment to others of any aircraft,
motor vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaded to. In the care, custo-
dy. or control of. or occupied by (Insert
owner or operator] that Is not the direct
result of a release front a petroleum under-
ground storage tank;
(e) Bodily damage or property damage for
which (Insert owner or operator] Is obligat-
ed to pay damages by reason of the assump-
tion of liability In a contract or agreement
other than a contract or agreement entered
Into to meet the requirements of 40 CFR
aso.n.
19) Ouarantor expressly waives notice of
acceptance of thla guarantee by (the Imple-
menting agency), by any or all third parties,
or by (owner or operator).
I hereby certify that the wording of this
guarantee Is Identical to the wording speci-
fied In 40 CFR 380.98(c) as such regulations
were constituted on the effective date
shown immediately below.
Effective date:
(Name of guarantor)
090
fnvlronmental Protection Agency
790.97
(Authorised signature for guarantor)
(Name of peraon signing)
(Title of person signing)
Signature of witness or notary:
(d) An owner or operator who uses a
guarantee to satisfy the requirements
of I 280.93 must establish a standby
trust fund when the guarantee 1s ob-
tained. Under the terms of the guaran-
tee, all amounts paid by the guarantor
under the guarantee will be deposited
directly Into the standby trust fund In
accordance with Instructions from the
Director of the Implementing agency
under 1380.108. This standby trust
fund must meet 'the requirements
specified In | 280.109.
1180.17 Insurance and risk retention
group coverage.
(a) An owner or operator may satisfy
the requirements of 1200.93 by obtain-
ing liability Insurance that conforms
to the requirements of this section
from a qualified Insurer or risk reten-
tion group. 8uch Insurance may be In
the form of a separate Insurance
policy or an endorsement to an exist-
ing Insurance policy.
(b) Each Insurance policy must be
amended by an endorsement worded
as specified In paragraph (bMl) of this
section, or evidenced by a certificate of
Insurance worded as specified In para-
graph through (e) of this
Paragraph 3 are hereby amended to con-
form with subsections (a) through let
a. Bankruptcy or Insolvency of the Insured
shall not relieve the f'lnsurer" or "Oroup")
of Its obligations under the policy to which
this endorsement Is attached.
b. The ("Insurer" or "Oroup") Is liable for
Ute payment of amounts within any deduct-
ible applicable to the policy to the provider
of corrective action or a damaged third-
party, with a right of reimbursement by the
Insured for any such payment made by the
("Insurer" or "Oroup"). This provision does
not apply with respect to that amount of
997
-------
8 MO. 97
40 CM Ch. I (7-1-91 MM*)
any deductible for which coverage U demon-
itniod under another nwhmlira or oornbl
nation of mechanisms ss specified In 40
cnt aM.M-aso.ioa.
c. Whenever requested by (> Director of
an Implementing agency). the ("Insurer" or
"Group"] agrees to furnish to (the Direc-
tor) a aianed duplicate oriitul of the policy
and all endorsement*.
d. Cancellsllon or any other termination
of the Insurance by the ("Insurer" or
"Qroup"!. except for non-payment of pre-
mium or misrepresentation by the Insured,
will be effective only upon written notice
and only after the expiration of 40 days
after a copy of such written notice I* re-
ceived by the Insured. Cancellation lor non-
payment of premium or mlanpieoentai Ion
by the Insured will be effective only upon
written notice and only after expiration of a
minimum of 10 days after a copy of such
written notice la received by the Insured.
(Insert for rlslms msite policies;
e. The Insurance eovers claims otherwise
covered by the policy that are reported to
the ("Insurer" or "Oroup") within six
months of the effective date of cancellation
or non-renewal of the policy except where
the new or renewed policy has the same ret-
roactive date or a retroactive date earlier
than that of Um prior policy, and which
arise out of any cowed occurrence that
commenced after Um policy retroactive
date. If applicable, and prior to such policy
renewal or termination date. Online report-
ed durine such extended reporting period
are subject to the terms, conditions, limits,
UmllA of UlMIUfi ind tftitlMtalM
of Um paUay.l
I hereby certify that the wording of this
Instrument Is Identical to the wording In 40
Cnt SM.ri(bXl) and that the ("Insurer" or
"Oroup"] Is ("licensed to transact the busi-
ness of Insurance or eligible to provide in-
surance as an excess or surplus lines Insurer
In one or mors stales").
ISlgnatura of authorised wmwinlillw o!
Insurer or Risk Retention Oroup]
(Name of person signing)
(Title of person signing]. Authorised Repre-
sentative of (name of Insurer or Risk Re-
tention Oroup)
lAddrees of Representative)
(J) Otrti/lcaU of fasttrMOS
Name: (name of each covered location]
Address: (address of each covered location]
Policy Number: ¦
endorsement (If applicable)*.
Period of Coversgo: (currcot policy period)
Name of (Insurer or Risk Retention
Oroup):
Address of (Insurer or Risk Retention
Oroup):
Nsme of Insured: -
Address of Insured:
Certification:
1. (Name of Insurer or Risk Retention
Oroup), (the "Insurer" or "Oroup"), as
Identified above, hereby certifies that It has
Issued liability Insurance covering the fol-
lowing underground storage tank(sl:
(List the number of tanks at each facility
and the namets) and addresses) of Ute
facility! lea) where the tanks are located.
If more than one Instrument is used to
assure different tanks at any one facili-
ty. lor each tank covered by this instru-
ment. list the tank Identification
number provided In the notification sub-
mitted pursuant to 40 CFR SBO.aa. or
the corresponding state requirement,
and Um name and address of the facili-
ty.)
for (Insert: "taking corrective action" and/
or "compensating third parties for bodily
Injury and property dsmigo nsused by"
either "sudden socldsnul releases" or "non-
wdden accidental releasee" or "accidental
releasee": In accordance with and subject to
the limits of Uabtllty. exclusions, conditions,
and other terms of the policy: If coverage Is
different for different tanks or locations. In-
dicate the type of coverage applicable to
each tank or location) arising from operat-
ing the underground storage Unkts) Identi-
fied above.
The limits of liability are (Insert the
dollar amount of the "each occurrence" and
"annual aggregate" limits of the Insurer's
or Oroup's liability: If the amount of cover-
age Is different for different typee of cover-
age or for different underground storage
tanks or locations. Indicate the amount of
coverage for each type of coverage and/or
for each underground storage tank or loca-
tion). exclusive of legal defense coats, which
are subject to a separate limit under the
policy. This oovsrage Is provided under
(policy number). The effective date of said
policy Is (date).
a. The ("Insurer" or "Oroup") further
certifies the following with respect to the
insurance described In Paragraph 1:
&. Bankruptcy or Insolvency of the Insured
shall not relieve the ("Insurer" or "Oroup")
of Its obligations under tbs policy to which
this oertlflcate applies.
b. The ("Insurer" or "Oroup") la liable for
the payment of amounts within any deduct-
908
EnvlranMotal Agwwy
fi 2S0.M
Ible applicable to the policy to the provider
of corrective action w a damaged third-
party. with a right of reimbursement by the
Insured for any such payment made by the
("Insurer" or "Oroup"). This provision does
not apply with respect to that amount of
any deductible for which coverage Is demon-
strated under another mechanism or combi-
nation of mechanisms ss specified In 40
era aAo.0&-2ao.ioa.
c. Whenever requested by (a Director of
an implementing agency), the ("Insurer" or
"Oroup") agrees to furnish to (the Direc-
tor) a signed duplicate original of the policy
and all endorsements.
d. Cancellation or any other termination
of the Insurance by the ("Insurer" or
"Oroup"), except for non-payment of pre-
mium or misrepresentation by the Insured,
will be effective only upon written noUoe
and only after the expiration of 00 days
after a copy of such written noUoe Is re-
ceived by the Insured. r>rw^'ln'1"^ for non-
payment of premium or misrepresentation
by the Insured will be effective only upon
written notice and only after expiration of a
minimum of 10 days after a copy of such
written notice Is received by the Insured.
(Insert for rlalma-made policies'
e. The Insurance covers cltlms otherwise
covered by the policy that are reported to
the ("Insurer" or "Oroup"] within six
mnnlhi of the effective date of cancellation
or nan-renewal of the policy exoept where
the new or renewed policy has the same ret-
roactive date or a retroactive date earlier
than that of the prior policy, and which
arise out of any covered occurrence that
commenced after the policy retroactive
date. If applicable, and prior to such policy
renewal or termination date. Claims report-
ed during such extended reporting period
are subject to the terms. mn
-------
9380.9*
40 CF« Ot. I (7-1-91 IdHlon)
the Suretyfles) are uorporatlona letlni M
co-sureties. we. the Sureties, bind ourselves
In such aunM jointly and Mwtillr only for
the purpose of allowing a joint action or ac-
tion! against any or all of us, and for all
other purposes each Surety bin (to Itaelf,
Jointly and aeverally with the Principal, for
the payment of (uch rami only aa la act
forth oppoalte the name of euch Surety, but
If no limit of liability la Indicated, the limit
of liability (hall be the full amount of the
penal sums.
Whereas nld Principal to required under
8ubtltle I of the Resource Conservation and
Recovery Act (RCRAI. aa amended, to pro-
vide financial assurance for I Insert; "Lifting
corrective action" and/or "compensating
third parties for bodily Injury and property
damage caused by" either "audden acciden-
tal releasee" or "nonaudden accidental re-
lease*" or "accidental releaaea"; If coverage
la different for different tank* or locations.
Indicate the type of coverage applicable to
each tank or location) arising from operat-
ing the underground storage tank* Identi-
fied above, and
Whereaa said Principal ahall establish a
standby trust fund aa to required when a
surety bond la used to provide such financial
assurance:
Now. therefore, the conditions of the obli-
gation are such that If the Principal ahall
faithfully ("taka corrective action. In ac-
cordance with 40 CTR part ISO, subpart P
and the Director of the state Implementing
agency's Instructions for," and/or "eompen-
sate Injured third parties for bodily Injury
and property damage caused by" either
"sudden" or "nonsudden" or "sudden and
nonaudden"l accidental releases arising
from operating the tank(s) IndenUfled
above, or 11 the Principal shall provide alter-
nate financial assurance, as specified In 40
CPR part MO, subpart H. within 130 days
after the date the notice of cancellation la
received by the Principal from the
Burety(lee), then this obligation shall be
null and void; otherwise It to to remain In
full force and effect.
Such obligation does not apply to any of
the following:
(a) Any obligation of (Insert owner or op-
erator] under a workers' compensation, dis-
ability benefits, or unemployment compen-
sation law or other similar law;
(b) Bodily Injury to an employee of [Insert
owner or operator) arising from, and In the
course of, employment by I Insert owner or
operator);
(c) Bodily Injury or property damage aris-
ing from the ownership, maintenance, use,
or entrustment to others of any aircraft,
motor vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaned to. In the care, custo-
dy. or control of. or occupied by (Insert
owner or operator) that Is not the direct
result of a release from a petroleum under-
ground storage tank;
Bodily Injury or property damage for
which I Insert owner or operator) la obligat-
ed to pay damages by reason of the assump-
tion of liability In a contract or agreement
other than a contract or agreement entered
Into to meet the requirements of 40 CPR
380.03.
The Surety! les) shall become liable on
this bond obllgstlon only when the Princi-
pal has failed to fulfill the conditions de-
scribed above.
Opon notification by (the Director of the
Implementing agency) that the Principal
has failed to ("take corrective action. In ac-
cordance with 40 CPR part 260. subpart P
and the Director's Instructions." and/or
"compensate Injured third parties") aa guar-
anteed by this bond, the Surety(lea) shall
either perform ("corrective action In accord-
ance with 40 CPR part >80 and the Direc-
tor's Instructions," and/or "third-party li-
ability compensation") or place funds In an
amount up to the annual aggregate penal
sum Into the standby trust fund aa directed
by (the Regional Administrator or the Di-
rector) under 40 CPR 360.108.
Upon notification by (the Director) that
the Principal has failed to provide alternate
financial assurance within 00 days after the
date the notice of cancellation Is received by
the Principal from the Surety(les) and that
(the Director) has determined or suspects
that a release has occurred, the Burety(les)
shall place funds In an amount not exceed-
ing the annual aggregate penal sum Into the
standby trust fund as directed by (the Di-
rector) under 40 CPR 380.108.
The Suretyllea) hereby walve
hereunder eiceed the amount of said
annual aggregate penal gum.
The Surety(les) may cancel the bond by
sending notice of cancellation by certified
mall to the Principal, provided, however,
that cancellation shall not occur during the
130 days beginning on the date of receipt of
the notice of cancellation by the Principal,
as evidenced by the return receipt.
The Principal may terminate this bond by
sending written notice to the Surety(les).
In Witness Thereof, the Principal and
Buretydea) have executed this Bond and
have affixed their seals on the date set
forth above.
1000
Environmental Proftll—i Afgwry
The persons whose slinslimn sniiai
below hereby certify tint Lbey are author-
ised to execute this surety bond on behalf
of the Principal and Buretydea) and that
the wording of Uito surety bond to Identical
to the wording specified In 40 CPR 380.08(b)
as such regulations were constituted on the
date this bond was executed.
Principal
(Signatures))
(Names)
(Tllle The letter of credit must be
worded as follows, except that Instruc-
tions in brackets are to be replaced
9 280. *9
with the relevant Info Jit and the
brackets deleted:
Ussvocasu Brumn Lsrrxa or Cbsdit
(Name and address of Issuing Institution)
(Name and address of Dtrectorts) of state
Implementing agency* I as))
Dear Sir or Madam: We hereby establish
our Irrevocable Standby Letter of Credit
No. In your favor, at the request and for
the account of (owner or operator name I of
(address) up to the sggregate amount of (In
words) OJB. dollars (II Insert dollar
amount)), available upon presentation
(Insert, If more than one Director of a state
Implementing agency to a beneficiary, "by
any one of you") of
(I) your sight draft, bearing reference to
this letter of credit. No. , and
(!) your signed statement reading as fol-
lows: "1 certify that the amount of the draft
to payable persuant to regulations Issued
under authority of Subtitle I of the Re-
source Conservation and Recovery Act of
ine. aa amended."
This letter of credit may be drawn on to
cover (Insert: "taking corrective action"
and/or "compensating third parties for
bodily Injury and property damage caused
by" either "sudden accidental releaaea" or
"nonsudden accidental releases" or "acci-
dental releases"! arising from operating the
underground storage tank(s) Identified
below In the amount of (In words) I (Insert
dollar amount) per occurrence and (In
word!) ((Insert dollar amount] annual ag-
gregate:
(List the number of tanka at each facility
and the namHa) and addressees) of the
fseflltyllea) where the tanks are located. If
more than one Instrument to used to assure
different tanks at any one facility, for each
tank cuveied by this Instrument, list the
tank IdentlflcaUoa number provided In the
notification submitted pursuant to 40 CPR
380.33. or the correspondlns state require-
ment, end the name and address of the fa-
culty.]
The letter of credit may not be drawn on
to cover any of the following:
(a) Any obligation of (Insert owner or op-
erator! under a workeis' compensation, dis-
ability benefits, or unemployment compen-
sation law or other similar taw,
(b) Bodily Injury to an employee of (Insert
owner or operator! arising from, and In the
course of. employment by (Insert owner or
operator):
(e) Bodily Injury or property damage aris-
ing from the ownership, maintenance, use.
or entrustment to others of any aircraft,
motor vehicle, or watercra/V
(d) Property damage to any property
owned, rented, loaned to. In the care, eusto-
1001
-------
(ttO.100
40 CHI Ch. I (7.1-91 fdHkon)
dy. or control o. occupied by (Insert
owner or operator) Uut to not the direct
result of i release Iron a petroleum under-
(round itoretc tank;
(e> Bodily Injury or property damage (or
which I Inaert owner or operator) to obligat-
ed to pay damage* by reason of U>e aaump-
Uon of liability In a contract or agreement
other than a contract or acreement entered
Into to meet Um requirement* of 40 CHI
3*0.01.
Thto letter of credit to effective ti of
Idate) and ahal) expire on (date), but such
expiration date shall be automatically en-
tended for a period of (at least the length of
the original term) on (expiration date) and
on each suocesslve expiration date, unleo.
at least 130 days before the curent expira-
tion date, we notify (owner or operator) by
certified mall that we have decided not to
extend thto letter of credit beyond the cur-
rent expiration date. In the event that
(owner or operator) to so notified, any
unused portion of the credit shall be avail-
able upon presentation of your sight draft
for 120 days after the date oI receipt by
(owner or operator], aa shown on the signed
return receipt.
Whenever this letter of credit to drawn on
under and In compliance with the terms of
thto credit, we shall duly honor such draft
upon presentation to us. and we shall depos-
it the amount of the draft directly Into the
standby trust fund of (owner or operator) In
accordance with your Instructions.
We certify that the wording of thto letter
of credit to Identical to the wording specified
In 40 Cm 360.0Mb) as such regulations
were constituted on the date shown Immedi-
ately below.
(Slgnaturets) and UUoU> of offldalU) of !»¦
fiipi
(Date)
Thto credit to subject to (Insert "the most
recent edition of the Uniform Customs and
Practice for Documentary Credits, pub-
lished by the International Chamber of
Commerce," or "the Uniform Commercial
Code").
(c) An owner or operator who uses a
letter of credit to satisfy the require-
ments of I 380.93 must also ealabllah a
standby trust fund when the letter of
credit la acquired. Under the terms of
the letter of credit, all amounts paid
pursuant to a draft by the Director of
the implementing agency will be de-
posited by the Issuing Institution di-
rectly into the standby trust fund In
accordance with Instructions from the
Director under | 380.100. This standby
trust fund must meet the require-
ments specified In 1380.103.
The letter of credit must be ir-
revocable with a term specified by the
Issuing Institution. The letter of credit
must provide that credit be automati-
cally renewed for the same term as the
original term, unless, at least 120 days
before the current expiration date, the
lasulng Institution notifies the owner
or operator by certified mall of Its de-
cision not to renew the letter of credit.
Under the terms of the letter of credit,
the 120 days will begin on the dale
when the owner or operator receives
the notice, aa evidenced by the return
receipt.
0 380.100 Uss of state-required mcche-
alum.
(a) For underground storage tanks
located In a state that does not have
an approved program, and where the
state requires owners or operators of
underground storage tanks to demon-
strate financial responsibility for
taking corrective action and/or for
compensating third parties for bodily
Injury and property damage, an owner
or operator may use a state-required
financial mechanism to meet the re-
quirements of | 280.03 If the Regional
Administrator determines that the
state mechanism Is at least equivalent
to the financial mechanisms specified
In this subpart.
(b) The Regional Administrator will
evaluate the equivalency of a state-re-
quired mechanism principally In terms
of: certainty of the availability of
funds for tailing corrective action and/
or for compensating third parties; the
amount of funds that will be made
available; and the types of costs cov-
ered. The Regional Administrator may
also consider other factors as Is neces-
sary.
(c) The state, an owner or operator,
or any other Interested party may
submit to the Regional Administrator
a written petition requesting that one
or more of the state-required mecha-
nisms be considered acceptable for
meeting the requirements of | 280.03.
The submission must include copies of
the appropriate state statutory and
regulatory requirements and must
show the amount of funds for correc-
tive action and/or for compensating
third parties assured by the
1002
Environmental Pratodiso Agency
mechanlsm(s). The Regional Adminis-
trator may require the petitioner to
submit additional Information as Is
deemed necessary to make this deter-
mination.
(d) Any petition under this section
may be submitted on behalf of all of
the state's underground storage tank
owners and operators.
(e) The Regional Administrator will
notify the petitioner of his determina-
tion regarding the mechanism's ac-
ceptability in lieu of financial mecha-
nisms specified in this subpart. Pend-
ing this determination, the owners and
operators using such mechanisms will
be deemed to be In compliance with
the requirements of | 380.03 for under-
ground storage tanks located In the
state for the amounts and types of
costs covered by such mechanisms.
(S3 PR 49370, Oct. 30. 1080; M PR 01314.
Dec. 31. 1088)
0 380.101 State hud or other stale assur-
ance.
(a) An owner or operator may aatiafy
the requirements of I 380.93 for under-
ground storage tanks located In a
state, where EPA Is administering the
requirements of this subpart, which
assures that monies will be available
from a state fund or state assurance
program to cover costs up to the limits
specified In | 380.93 or otherwise as-
sures that such costs will be paid If the
Regional Administrator determines
that the state's assurance Is at least
equivalent to the financial mecha-
nisms specified in this subpart.
(b) The Regional Administrator will
evaluate the equivalency of a state
fund or other state assurance princi-
pally in terms of: Certainty of the
availability of funds for taking correc-
tive action and/or for compensating
third parties; the amount of funds
that will be made available; and the
types of costs covered. The Regional
Administrator may also consider other
factor* as Is necessary.
(c) The slate must submit to the Re-
gional Administrator a description of
the slate fund or other slate assurance
to be supplied aa financial assurance,
along with a list of the classes of un-
derground storage tanks to which the
funds may be applied. The Regional
Administrator may require the state
82M.102
to submit additional ii Atlon as Is
deemed necessary to mt.c a determi-
nation regarding the acceptability of
the state fund or other state assur-
ance. Pending the determination by
the Regional Administrator, the owner
or operator of a covered class of USTs
will be deemed to be In compliance
with the requirements of | 380.93 for
the amounts and types of costs cov-
ered by the state fund or other state
assurance.
.
• 380.193 Trust fund.
(a) An owner or operator may satisfy
the requirements of I 280.93 by estab-
lishing a trust fund that conforms to
the requirements of this section. The
trustee must be an entity that has the
authority to act as a trustee and
whose trust operations are regulated
and examined by a federal agency or
an agency of the state In which the
fund is established.
(b) The wording of the trust agree-
ment must be Identical to the wording
specified in | 280.103(6X1), and must
be accompanied by a formal certifica-
tion of acknowledgement aa specified
in | 280.103(bM2).
(c) The trust fund, when established,
must be funded for the full required
amount of coverage, or funded for
1003
-------
8 3*0.103
40 era Ok I (7-1-91 MMmi)
part of the required amount of cover-
age and used In combination with
other mechanlara and addresses) of the faclllly(les)
where the tanks are located that are cov-
ered by the standpoint trust agreement
(Whereas, the Grantor has elected to es-
tablish (Insert either "a guarantee," "surety
bond." or "letter of credit") to provide all or
pert of such financial assurance for the un-
derground storage tanks Identified herein
and ts required to establish a standby trust
fund able to accept payments from the In-
strument (This paragraph Is only applicable
to the standby trust agreement.));
Whereas, the Grantor, acting through Its
duly authorized officers, has selected the
Trustee to be the trustee under this agree-
ment. lid the Trustee Is willing to act aa
trustee;
Now, therefore, the O ran tor and the
Trustee agree as follows;
SkHot I. DtAnlHonl
As used In this Agreement:
(a) The term "Grantor" means the owner
or operator who enters Into this Agreement
and any successors or assigns of the Grant-
or.
(b> The term "Trustee" means the Trust-
ee who enters Into this Agreement and any
successor Trustee.
Section X. Identification of ths Financial
Auurance Hechanlrm
This Agreement pertains to the (Identify
the financial assurance mechanism, either a
guarantee, surety bond, or letter of credit,
from which the standby trust fund Is estab-
lished to receive payments (This paragraph
Is only applicable to the standby trait
agreement.)].
See Mo* 1 KitablUhment of Fund
The Grantor sad the Trustee hereby es-
tablish a trust fund, the "Pund." for the
benefit of (Implementing agency]. The
O ran tor and the Trustee Intend that no
third party have access to the Pund eicept
as herein provided. (The PUnd ts established
Initially as a standby to receive payments
and shall not consist of any property.) Pay-
ments made by the provider of financial as-
surance pursuant to (the Director of the Im-
plementing agency's) Instruction are trans-
ferred to the Trustee and are referred to as
the PUnd, together with all earnings and
profits thereon, less any payments or distil-
buttons msde by the Trustee pursuant to
this Agreement. The Pund shall be held by
1004
EnvirwMMttfal Protection Agsscy
10.100
the Trustee, IN TRUST, as pro-
vided. The Trustee shall not be hohimmIIiIii
nor shall It undertake any responsibility for
the amount or adequacy of, nor any duty to
collect from the Grantor as provider of fi-
nancial assurance, any payments necessary
to discharge any liability of the Orantor es-
tablished by (the state Implementing
agency!
Section 4. Pnrmenf for ("CbrrseflM Jetton"
and/or TMrrf-Pnrty LteMIUi Claims 1
The Trustee shall make payments from
the Pund as (the Director of the Implement-
ing agency) shall direct. In writing, to pro-
vide for the payment of the easts of (Insert:
"taking corrective action" and/or compen-
sating third parties for bodily Injury and
property damage reused by" either "sudden
accidental releases" or "nonswdden acciden-
tal releases" or "accidental releases") aris-
ing from operating the tanks mieiul by the
financial assurance morhanban Identified In
this Agreement.
The Pund may not be drawn upon to
cover any of the following:
(a) Any obligation of (Insert owner or op-
erator) under a workers' conpen—Hon. dis-
ability benefits, or unemployment compen-
sation law or other similar law;
(b) Bodily injury to an employee of (insert
owner or operator] arising from, and In Uie
course of employment by (Insert owner or
operator);
(c) Bodily Injury or property rtsmsff aris-
ing from the ownership, maintenance, use.
or entrustment to others of any aircraft,
motor vehicle, or watereraft;
(d) Property damage to any property
owned, rented, loaned to. In the care, custo-
dy. or control of. or occupied by (Insert
owner or operator) that Is not the direct
result of a release from a petroleum under-
ground storage tank;
(e> Bodily Injury or property damage for
which (Insert owner or operator] Is obligat-
ed to pay damages by reason of the assump-
tion of llsblllty In a contract or sgreement
other than a contract or agreement entered
Into to meet the requirements of 40 CPU
2S0.93.
The Trustee shall reimburse the Orantor.
or other persons as specified by (the Direc-
tor). from the Pund for corrective action ex-
penditures and/or third-party liability
claims In such amounts as (the Dtreetorl
•hall direct In writing. In addition, the
Trustee shall refund to the Orantor such
amounts aa (the Director) vecMes In writ-
ing. Upon refund, such funds shall no
longer constitute part of the PUnd as de-
fined herein.
AseMo* 1 ftpsnb Compr. a Prntd
Payments made to the Trustee for the
Kind shall eonslst of cash and securities ac-
ceptable to the Trustee.
Bsction C. Tnutm Manaptmmt
The Trustee shall Invest and reinvest Uts
principal and Income of the Pund and keep
the Pund Invested ss a single fund, without
distinction between principal and Income, In
accordance with general Investment policies
and guidelines which the Orantor may com-
municate In writing to the Trustee from
time to time, subject, however, to the provi-
sions of this Section. In Investing, reinvest-
ing. exchanging, selling, and managing the
Pund. the Trustee shall dtschsrge his duties
with respect to the trust fund solely In the
Interest of the beneficiaries and with the
care, skill, prudence, and diligence under
the circumstances then prevailing which
persons of prudence, acting In a like capac-
ity and familiar srlth such matters, would
use In the conduct of on enterprise of s llks
character and with Uke sims: except that:
(I) Securities or other obligations of the
Orantor, or any other owner or operator of
the or any of their affiliates as de-
fined In the Investment Company Act of
1940, as amended. IB OAC. Ma-Ma), shall
not be acquired or held, unless they are se-
curities or other obligations of the federal
or a state government:
-------
IM0.10S
40 CFR Ch. I (7-1-91 KdHion)
ticHM i- Itv /Mtm Q/ Trustee
Without In any way limiting Uw powen
and discretions conferred upon the Truitee
by the other provisions of thU Amtnent
or by law. the Trustee U expressly author-
bed and empowered:
(a) To aeU. exchange. ooovcy, transfer, or
otherwise dispose of any property held by
It. by public or private sale. No person deal-
ing with the Trustee ihall be bound U> Me
to the application ol the purchase money or
to Inquire into the validity or expediency of
any such aale or other disposition;
To make, execute, acknowledge, And
deliver any and all document* ol transfer
and conveyance and any and all other In-
strument* that may be necessary or appro-
priate to cany out the powen herein grant-
ed;
To register any aecurlUea held In the
Fund In Its own name or In the name of a
nominee and to hold any security In bearer
form or In book entry, or to combine certifi-
cate* representing auch securities with cer-
tificates of the same issue held by the
Trustee In other fiduciary r» parities. or to
deposit or arrange for the deposit of such
securities In a qualified central depository
even though, when so deposited, such secu-
rities may be merged and held In bulk In the
name of the nominee of such depository
with other aecurlUea deposited therein by
another peroon. or to deposit or arrange for
the deposit of any securities IsiiiT-i by the
United States Qoverament, or any sgency
or Instrumentality thereof, with a Federal
Reserve hank, but the books and records of
the Trustee shall at all Umes show that all
such securities are part of the fund:
(d) To deposit any cash In the Fund In in-
terest-bearing accounts maintained or sav-
ings certificates Issued by the Trustee, In lis
separate corporate capacity, or In any other
banking Institution affiliated with the
Trustee, to the extent Insured by an agency
of the federal or state government; and
(a) To oompramlse or otherwise adjust, all
ulslms In favor of or against the fund.
Section t Taxet and liynw
All taies of any kind that may be issosnrrt
or levied against or In respect of the Fund
and all brokerage t-*1""* Incurred by
the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee In
connection with the administration of this
Trust, including fees for legal services ren-
dered to the Trustee, the corepensailnsi of
the Trustee to the extent not paid directly
by the Q ran tor. and all other proper
charges and disbursements of Um Trustee
•hall be paid from the Fund.
Section JA Advice a! Cwmssf
The Trustee may from Ume to time con-
sult with oounscl. who mu b* counsel to
the Q ran lor, with respect to any questions
arising as to the construction of this Agree-
ment or any action to be taken hereunder.
The Trustee shall be fully protected, to liie
extent permitted by Uw, In acting upon the
advice of counsel.
Section fl. Trwies Compensation
The Trustee shall be entitled to reasona-
ble compensation for Its services ss agreed
upon In writing from Ume to time with the
Grantor.
Section 11 Successor Trustee
The Trustee may resign or the Grantor
may replaos the Trustee, but such resigna-
tion or replacement shall not be effective
until the O ran tor has appointed a successor
trustee and this successor accepts the ap-
pointment. The successor trustee shall have
the same powen and duties as those con-
ferred upon the Trustee hereunder. Upon
the sunmssor trustee's acceptance of the ap-
pointment. the Trustee shall assign, trans-
fer. and pay over to the successor trustee
the funds and properties then constituting
the Fund. If for any reason the Orantor
cannot or does not act In the event of the
resignation of the Trustee, the Trustee may
apply to a court of competent Jurisdiction
for the appointment of a successor trustee
or for Instructions The successor trustee
shall specify the dale on which It assumes
administration of the trust In writing sent
to Uie Orantor and the present Trustee by
certified mall 10 days before such change
becomes effective. Any expenses Incurred by
the Trustee as a result of any of the acts
contemplated by this Section shall be paid
as provided In Bection A.
Section 11 Instructions to the Trustee
All orders, requests, and Instructions by
the Orantor to the Trustee shall be In writ-
ing. signed by such persons as are designat-
ed In the attached Schedule B or such other
designees as the Orantor may designate by
amendment to Schedule B. The Trustee
shall be fully protected In acting without In-
quiry In accordance with the Orantor's
orders, requests, and Instructions. All
orders, requests, and Instructions by Ithe
Director of the Implementing sgencyl to the
Trustee shall be In writing, signed by Ithe
Director), and the Trustee shall act and
ahali be fully protected in acting in accord-
ance with such orders, requests, and instruc-
tions. The Trustee shall have the right to
assume. In the shsenre of written notice to
the contrary, that no event constituting a
change or a termination of the authority of
any person to act on behalf of the Orantor
or (the director) hereunder has occurred.
The Trustee shall have no duty to act In the
ahsrnnn of such order*, requests, and In-
1000
invlrsnainhil Protection Agency
4 MO.] 04
structions from the Orantor and/or [the Di-
rector 1, except as provided for herein.
Section 14. Amendment of Agreement
This Agreement may be amended by an
instrument In writing executed by the
Orantor and the Trustee, or by the Trustee
and Ithe Director of the Implementing
agency) If the Orantor nrisses to exist.
Section IS. inweocoMiKg and Termination
Subject to the right of the parties to
amend this Agreement as provided In Sec-
tion 14. this Trust shall be irrevocable and
shall continue until terminated at the writ-
ten direction of the Orantor and the Trust-
ee. or by the Trustee and (the Director of
the Implementing agency), if the Orantor
ceases to exist. Upon termination of the
Trust, all remaining trust property, less
final trust sdmlnlilrstlnn expenses, shall be
delivered to the Orantor.
Section it Immunit* and Indemnification
The Trustee shall not Incur personal li-
ability ol any nature In connection with any
act or omission, made In good faith. In the
administration of this Trust, or in carrying
out any directions by the Orantor or (the
Director of the Implementing agency)
Issued In socordanoe with this Agreement.
The Trustee shall be indemnified and saved
harmless by the Orantor. from and against
any ptrwpt' liability to which the Trustee
may be subjected by reason of any act or
conduct In lis official capacity. Including all
expenses reasonably Incurred In Its defense
In the event the Orantor falls to provide
such defense.
Section IT. Choice of Law
This Agreement shall be administered,
construed, and enforced according to the
laws of the state of (Insert name of state),
or the Comptroller of the Currency In the
case of National Association banks.
.Section It. Interpretation
As used in this Agreement, words In the
singular the plural and words in the
plural include Uie [lingular. The descriptive
headings for each section of this Agreement
shall not affect the interpretation or the
legal efficacy of this Agreement.
In Witness whereof the parties have
rmitNl this Agreement to be executed by
their respective officers duly authorised and
their corporate seals (if applicable! to be
hereunto affixed and attested as of the date
first above written. The parties below certi-
fy that the wording of this Agreement Is
Identical to the wording specified In 40 CFR
280.101
-------
9 280.105
40 era Ch. I (7.1-91 Kdttfon)
ance mechanism or combination of
mechanisms that satisfies the require-
ments of I 280.03.
If a provider of financial respon-
sibility cancels or falls to renew for
reasons other than incapacity of the
provider as specified In (380.100. the
owner or operator must obtain alter-
nate coverage as specified in this sec-
tion within 00 days after receipt of the
notice of termination. If the owner or
operator falls to obtain alternate cov-
erage within 00 days after receipt of
the notice of termination, the owner
or operator must notify the Director
of the implementing agency of such
failure and submit;
(1) The name and address of the pro-
vider of financial assurance;
(3) The effective date of termina-
tion; and
(9) The evidence of the financial as-
sistance mechanism subject to the ter-
mination maintained In accordance
with I 280.107(b).
IBS PR 43370. Oct. 38. IBM. as amended at
64 PR 47083. Nor. ». 18891
8180.101 Reporting by owner or operator.
(a) An owner or operator must
submit the appropriate forms listed In
I 380.107(b) documenting current evi-
dence of financial responsibility to the
Director of the Implementing agency:
(1) Within 30 days after the owner
or operator Identifies a release from
an underground storage tank required
to be reported under 1380.53 or
I 380.61:
(3) If the owner or operator falls to
obtain alternate coverage as required
by this subpart, within 30 days after
the owner or operator receives notice
of:
(I) Commencement of a voluntary or
Involuntary proceeding under Title II
(Bakruptcy), U.8. Code, naming a pro-
vider of financial assurance as a
debtor.
(il> Suspension or revocation of the
authority of a provider of financial as-
surance to Issue a financial assurance
mechanism.
(Ill) Failure of a guarantor to meet
the requirements of the financial test.
(Iv) Other incapacity of a provider of
financial assurance; or
(3) As required by 1380.95(g) and
1380.101Kb).
(b) An owner or operator must certi-
fy compliance with the financial re-
sponsibility requirements of this part
as specified in the new tank notifica-
tion form when notifying the appro-
priate state or local agency of the In-
stallation of a new underground stor-
age tank under | 380.33.
80.107 Reeoedkeeplnf.
(a) Owners or operators must main-
tain evidence of all financial assurance
mechanisms used to demonstrate fi-
nancial responsibility under this sub-
part for an underground storage tank
until released from the requirements
of this subpart under 1308.109. An
owner or operator must maintain such
evidence at the underground storage
tank site or the owner's or operator's
place of business. Records maintained
off-site must be made available upon
request of the Implementing agency.
(b) An owner or operator must main-
tain the following types of evidence of
financial responsibility:
(1) An owner or operator using an
assurance mechanism specified In
II 380.9S through 380.100 or | 280.102
must maintain a copy of the Instru-
ment worded as specified.
(3) An owner or operator using a fi-
nancial test or guarantee must main-
tain a copy of the chief financial offi-
cer's letter based on year-end financial
statements for the most recent com-
pleted financial reporting year. Such
evidence must be on file no later than
130 days after the done of the finan-
cial reporting year.
(3) An owner or operator using a
guarantee, surety bond, or letter of
credit must maintain a copy of the
signed standby trust fund agreement
and copies of any amendments to the
agreement.
(4) An owner or operator using an
Insurance policy or risk retention
group coverage must maintain a copy
of the signed Insurance policy or risk
retention group coverage policy, with
the endorsement or certificate of in-
surance and any amendments to the
agreements.
(5) An owner or operator covered by
a state fund or other state assurance
must maintain on file a copy of any
evidence of coverage supplied by or re-
quired by the State under 1280.101(d).
(6) An owner or operator using an
assurance mechanism specified In
II 380.9B through 380.102 must main-
tain an updated copy of a certification
of financial responsibility worded aa
follows, except that Instructions in
brackets are to be replaced with the
relevant Information and the brackets
deleted:
Oormctnoi or taucui Rssronniurr
(Owner or operator! hereby certifies that
It Is In compliance with the rqulrementa of
subpart H of 40 CPR part ISO.
The financial assurance mechanlsm(t1
used to demonstrate financial reeponslbllty
under subpart H of 40 CPR part 280 Is (are)
as follows:
(For each mechanism, list the type of
mechanism, name of Issuer, mechanism
number (If applicable), amount of coverage,
effective period of coverage and whether
the mechanism covers "taking corrective
action" and/or "compensating third parties
for bodily Injury and property damage
caused by" either "sudden accidentia! re-
leases" or "nonsudden scddenUal releases"
or "accidental releases."!
[Signature of owner or operator]
(Name of owner or operator!
mtisi
(Datel
(Signature of witness or notary!
(Name of witness or notary!
(Date)
The owner or operator must update
this certification whenever the finan-
cial assurance mechanlsm(s) used to
demonstrate financial responsibility
change(s).
(The Information requirements In this sec-
tion have been approved by the Office of
Management and Budget under OUB con-
trol number 30MMMM)
• 380.188 Drawing on financial sssmaats
(a) The Director of the Implement-
ing agency shall require the guaran-
tor, surety, or Institution Issuing a
letter of credit to place the amount of
funds stipulated by the Director, up to
the limit of funds provided by the fi-
nancial assurance mechanism. Into the
standby trust If:
(1MI) The owner or operator falls to
establish alternate financial assurance
within 80 days after receiving notice of
cancellation of the guarantee, surety
bond, letter of credit, or, as applicable,
other financial assurance mechanism;
and
(II) The Director determines or sus-
pects that a release from an under-
ground storage tank covered by the
mechanism hag occurred and so noti-
fies the owner or operator or the
owner or operator has notified the Di-
rector pursuant to subparts E or P of a
1009
-------
(280.109
40 CM Ch. I (7-1-91 Edition)
release from an underground storage
tank covered by the mechanism; or
(2) The conditions of paragraph
(bXl) or or of this section
are satisfied.
(b> The Director of the Implement-
ing agency may draw on a standby
trust fund when:
(1) The Director makes a final deter-
mination that a release has occurred
and immediate or long-term corrective
action for the release Is needed, and
the owner or operator, after appropri-
ate notice and opportunity to comply,
has not conducted corrrccUvc action
as required under 40 CFR part 280.
subpart P*. or
(2) The Director has received either
(I) Certification from the owner or
operator and the third-party liability
clalmanUs) and from attorneys repre-
senting the owner or operator and the
third-party liability clalmanUs) that a
third-party liability claim should be
paid. The certification must be worded
as follows, except that Instructions In
brackets are to be replaced with the
relevant Information and the brackets
deleted:
CnmncATioa or Vaub Cum
The underaignnd. as pfinrlpnl* and as
legal representatives of (Insert owner or op-
erator] and llraert name and address of
third-party claimant), hereby eertlfy that
Uie claim of bodily Injury (and/orl property
damage caused by an accidental release arts-
Ins from operating (owner's or operator's!
underground storage tank should be paid In
the mount of II 1.
(Signatures)
Owner or Operator
Attorney for Owner or Operator
(Notary) Data
(Blgnaturets))
ClalmanUs >
AUorneyU) for ClalmanUs)
(Notary) Data
or (U) A valid final court order estab-
Uahlng a Judgment against the owner
or operator for bodily Injury or prop-
erty damage by an accidental
release from an underground storage
tank covered by financial assurance
under this subpart and the Director
determines that the owner or operator
has not aatlafled the Judgment.
(c) If the Director of the Implement-
ing agency determines that the
amount of corrective action coats and
third-party liability claims eligible for
payment under paragraph (b) of this
section may exceed the balance of the
standby trust fund and the obligation
of the provider of financial assurance,
the first priority for payment shall be
corrective action costs necessary to
protect human health and the envi-
ronment. The Director shall pay third-
party liability claims In the order In
which the Director receives certifica-
tions under paragraph (bKlMI) of this
section, and valid court orders under
paragraph (bM2Xll) of this section.
8 2M.1M lilnw ttom Use requlreoxoU.
An owner or operator Is no longer re-
quired to maintain financial responsi-
bility under this subpart for an under-
ground storage tank after the tank
has been properly closed or. If correc-
tive action 1s required, after corrective
action has been completed and the
tank has been properly closed as re-
quired by 40 CPR part 280, subpart Q.
IIN.I1I Bankruptcy or other Incapacity
of owner or operator or provider of fi-
nancial DMurtm.
(a) Within 10 days after commence-
ment of a voluntary or involuntary
proceeding under Title II (Bankrupt-
cy). UA Code, naming an owner or op-
erator as debtor, the owner or opera-
tor must notify the Director of the Im-
plementing agency by certified mall of
such commencement and submit the
appropriate forms listed In
1280.107(b) documenting current fi-
nancial responsibility.
(b) Within 10 days after commence-
ment of a voluntary or Involuntary
proceeding under Title 11 (Bankrupt-
cy). DA Code, naming a guarantor
providing financial assurance as
debtor, such guarantor must notify
the owner or operator by certified
mall of such commencement as re-
quired under the terms of the guaran-
tee specified In 1280.96.
(c) An owner or operator who ob-
tains financial assurance by a mecha-
nism other than the financial test of
self-Insurance will be deemed to be
without the required financial assur-
ance In the event of a bankruptcy or
Incapacity of IU provider of financial
assurance, or a suspension or revoca-
tion of the authority of the provider
1010
invlrwuMiital Protection Agency
of financial assurance to Issue a guar-
antee. Insurance policy, risk retention
group coverage policy, surety bond,
letter of credit, or state-required
mechanism. The owner or operator
must obtain alternate financial assur-
ance as specified In this subpart within
30 days after receiving notice of such
an event. If the owner or operator
does not obtain alternate coverage
within 30 days after such notification,
he must notify the Director of the Im-
plementing agency.
(d> Within 30 days after receipt of
notification that a state fund or other
state assurance has become Incapable
of paying for assured corrective action
or third-party compensation costs, the
owner or operator must obtain alter-
nate financial assurance.
• 280.111 ReplenUhmeat of guarantees,
letter* of credit, or surely bond*.
(a) If at any time after a standby
trust Is funded upon the Instruction of
the Director of the implementing
180.111
agency with funds drawn frum a guar-
antee. letter of credit, or surety bond,
and the amount In the standby trust Is
reduced below the full amount of cov-
erage required, the owner or operator
shall by the anniversary date of the fi-
nancial mechanism from which the
funds were drawn:
(1) Replenish the value of financial
assurance to equal the full amount of
coverage required, or
(2) Acquire another financial assur-
ance mechanism for the amount by
which funds in the standby trust have
been reduced.
(b) For purposes of this section, the
full amount of coverage required Is
the amount of coverage to be provided
by I 260.93 of this subpart. If a combi-
nation of mechanisms was used to pro-
vide the assurance funds which were
drawn upon, replenishment shall
occur by the earliest anniversary dale
among the mechanisms.
¦ 180.11Z Btupcnslon of enforcement. (Be-
•ervedj
1011
-------
Ft. no, App. 40 era Oi. I (7-1-91 CdlHon)
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1013
-------
p». m, am 40 crt a>. i (7-1-91 uhn)
oa
(INM
10 MMMonMAtfM
CD ItHMMMia
~ meson
O amMwumwuimnmn ¦iittytn nmnMigmmt
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1014
InvUemeenlal Protection Agency
f». »¦<>. App. U
Atpkndix II to Past 280—List or
Aoencibs Desiomatbd To Rkckive
NcrririCATlOMI
ft|.K»rt.» (EPA hrai). AltUau Department
of Environmental Management. Qround
Water Section/Water Division. 1761 Con-
irciiou W.L. Dickinson Drive. Mont-
gomery. Alshama M1M. 206/211-1621
rtlrA* (EPA Pun). Department of Envi-
ronmental Conservation. Bos 0, Juneau.
Alaska Mail-1800. 010/466-2661
American Samoa (EPA Form). Executive
Secretary. Environmental Quality Com-
mission. Office of the Oovemor, American
Qovemment, Pago Pago. Ameri-
can Samoa 06100; Attention; UST Notifi-
cation
Artsona (EPA num), Attention: UST Coor-
dinator, Artsona Department of Environ-
mental Quality, bivtronmental tfealtli
Services. 2006 N. Central. Phoenix. Artao-
na 60004
Arkansas (EPA Pons). Arkansas Depart-
ment of (dilution Control and Ecology,
P.O. Boa NU. Utile Rock, Artsnns
72216, 601 /662-1444
California (Slate Ponn). Executive Director.
State Water Resources Control Board,
P.O. Bos 100, Sacramento. California
66601. 016/446-16*1
Colorado (EPA Ponn), Section Chief. Colo-
rado Department of Health, Waste Man-
agement Division. Underground Tank Pro-
gram. 4210 East 11 lb Avenue. Denver, Col-
orado 60230. 201/120-6111
Connecticut (Stale Form), Hssardous Mate-
rials Management Unit, Department of
Environmental Protection. State Office
Building. 166 Capitol Avenue. Hartford.
Connecticut 06100
Delaware (State Potto). Division of Air and
Waste Management. Department of Natu-
ral Resources and Environmental Control,
P.O. Bos 1401. 60 Kings Highway. Dover.
Delaware 10001. 202/126-6406
District of Columbia (EPA Form). Atten-
tion: UST Notification Ponn. Department
of Consumer and Regulatory Affairs. Pes-
ticides and Hazardous Waste Management
Branch. Room 114. 6010 Overlook Avenue
8W.. Washington. DC 20032
Florida (State Form). Florida Department
of Environmental Regulation. Solid Waste
Section. Twin Towers Office Building.
2600 Blair Stone Road. Tallahassee. Mori-
da 12360, 004/467-4366
Georgia (EPA Form). Oeorgla Department
of Natural Resources. Environmental Pro-
tection Division. Underground Storage
Tank Program. 2420 Norman Berry Drive.
7Ui Floor. Hapevllle. Oeorgla 10364,
404/666-7404
Guam (State Form). Administrator. Guam
Environmental Protection Agency, P.O.
Bos 2098. Agana. Guam l vereeas
Operator (Commercial call v J)
Hawaii (EPA Form), Administrator. Hazard-
ous Waste Program. 646 HalekauwUa
Street, Honolulu. Hawaii Mail, 606/64*-
2270
Idaho (EPA Form), Underground Storage
Tank Coordinator, Water Quality Bureau.
Division of Environmental Quality. Idaho
Department of Health and Welfare, 460
W. State Street. Boise. Idaho 61720, 206/
124-4261
Illinois (EPA Ponn), Underground Storage
Tank Coordinator, Division of Fire Pre-
vention. Office of State Fire Marshal.
1160 Executive Park Drive. Springfield. Il-
linois 62101-4600
Indiana (EPA Form). Underground Storage
Tank Program, Office of Environmental
Response, Indiana Department of Envi-
ronmental Management. 106 South Merid-
ian Street, Indianapolis Indians 46226
Iowa (State Form). UST Coordinator, Iowa
Department of Natural Resources, Henry
A. Wallace Building. 000 East Orand. Des
Molnca, Iowa 60210. 612/261-0136
Kansas (EPA Form), Kinin Department of
Health and Environment. Forbes Field.
Building 140. Topeka. Kansas 06620, 011/
206-1604
Kentucky (Slate Form), Department of en-
vironmental Protection. Hasardous Waste
Branch. Fort Boone Plasa. Building § 1. 16
Re Illy Road. Frankfort. Kentucky 40601.
601/664-6110
Louisiana (State Form), Secretary. Louisi-
ana Department of Environmental Qual-
ity, P.O. Box 44066, Baton Rouge. Louisi-
ana 10604. 601/142-1366
Maine (State Form). Attention: Under-
ground Tanks Program. Bureau of OU and
Hasardous Material Control. Department
of Environmental Protection, State
House—Station 11, Augusta. Maine 04311
Maryland (EPA Form). Science and Health
Advisory Group. Office of Environmental
Programs, 301 West Preaton Street. Balti-
more. Maryland 21201
Massachusetts (EPA Form), UST Registry.
Department of Public Safely, 1010 Com-
monwealth Avenue. Boston. Massachu-
setts 02216. 611/666-4600
Michigan (EPA Form). Michigan Depart-
ment of Slate Police. Fire Marshal Divi-
sion. General Office Building. 1160 Harris
Drive. Lansing, Michigan 48011
Minnesota (Slate Form). Underground Stor-
age Tank Program. Division of Solid and
Hasardous Wastes. Minnesota Pollution
Control Agency. 620 Weal Lafayette Road.
St. Paul. Minnesota 66166
Mississippi (Slate Form), Department of
Natural Resources. Bureau of Pollution
Control. Underground Storage Tank Sec-
tion. P.O. Bos 10166, Jackson. Mississippi
10200.001/061-6111
1015
h) 141 0 — 9I—sa
-------
ft. 260, A r
40 CFR Ch. I (7.1>91 Edition)
WlaaouH U >rtn). UST Coordinator.
Missouri L, -Jtment of Natural Re-
source*. P.O. Box 176. Jefferson City. Mis-
souri 86103. 314/761-7438
Montana (EPA Form). Solid and Haaardoua
Waate Bureau. Department of Health and
Environmental Science. Cogswell Bldg.,
Room B-301. Helena. Montana 80630
Nebraska (EPA Form), Nebraska State PI re
Marshal. P.O. Boi 04877, Lincoln. Nebraa-
ka 88800-4877. 403/471-0488
Nevada (EPA Form), Attention: U8T Coor-
dinator. Division of Environmental Pro-
tection. Department of Conservation and
Natural RMources. Capitol Complex 301
S. Pall Street, Caraon City. Nevada 8B710,
800/093-0900. Ext. 4870, 703/886-4870
New Hampshire (EPA Porm), NH Dept. of
Environmental Services. Water 8upply
and Pollution Control Division. Haaen
Drivs, P.O. Box 98, Concord. New Hamp-
shire 03101, Attention: UST Registration
New Jersey <8tate Porm). Underground
Storage Tank Coordinator. Department of
Environmental Protection. Division of
Water Resources (CN-OMI, Trenton. New
Jersey 0M11.809/303-0434
New Mexico (EPA Form), New Mexico Cirl-
ronraental Improvement Division.
Oroundwater/Hasardous Waste Bureau.
P.O. Box Ml, Santa Pe. New Mexico
>7804. 808/837-3933
New York (EPA Porm). Bulk Storage Sec-
tion. Division of Water. Department of
Environmental Conservation. 60 Wolf
Road. Room 118. Albany. New York
13333-0001, 818/487-4381
North Carolina (EPA Porm), Division of Bi-
vtronmental Management. Oround-Water
Operations Branch, Department of Natu-
ral Resources and Community Develop-
ment. P.O. Box 17887. Raleigh. North
Carolina 37911.010/733-3331
North Dakota (State fona), Dtvtton of
Hazardous Management and Sperlal Stud-
lea, North Dakota Department of Health.
Box 8830. Bismarck. North Dakota 88803-
6630
Northern Mariana bland* (EPA Porm).
Chief, Division of Environmental Quality,
P.O. Box 1304, Commonwealth of North-
ern Mariana Islands. Sal pan. CM 08080,
Cable Address: Oov. NM1 Sal pan. Over-
sea* Operator 8884
Ohio (State Porm). Stale Fire Marshal's
Office. Department of Commerce, 8890 E.
Main Btreet. Reynoldstourg. Ohio 41088,
Bute Hotline: 800/383-1031
Oklahoma (EPA Porm). Underground Stor-
age Tank Program. Oklahoma Corpora-
tion Comm.. Jim Thorpe Building. Okla-
homa City, Oklahoma 71108
Oregon (State Porm). Underground Storage
Tank Program. Hazardous and Solid
Waste Division. Department of Environ-
mental Quality. 811 S.W. Sixth Avenue.
Portland. Oregon 98304. 803/339-8788
Pennsylvania (EPA Porm), PA Department
of Environmental Reaourees. Bureau of
Water Quality Management. Oround
Water Unit. 0th Floor Fulton Bulldlna.
P.O. Box 3083. Harrlsburg. Pennsylvania
17130
Puerto Rico (EPA Porm). Director. Water
Quality Control Area. Environmental
Quality Board, Commonwealth of Puerto
Rico. Ranturce. Puerto Rico. 800/738-0717
Rhode Island (EPA Form). UST Registra-
tion, Department of Environmental Man-
agement, 83 Park Street, Providence,
Rhode Island 03003. 401/377-3334
South Carolina (State Form). Ground-
water Protection Division. South Carolina
Department of Health and Environmental
Control. 3800 Hull Street. Columbia.
South Carolina 30301. 803/788-8311
South Dakota (EPA Form). Office of Water
Quality. Department of Water and Natu-
ral Resources. Joe Fosa Building, Pierre,
South Dakota 87801,
Tennessee (EPA Porm). Tennessee Depart-
ment of Health and Environment, Divi-
sion of Superfund Underground Storage
Tank Beetlon, 180 Ninth Avenue, North.
Nashville. Tennessee 37310-8404, 816/741-
0800
Texas (EPA Porm). Underground Storage
Tank Program. Texas Water Commission.
P.O. Box 13087. Austin. Texas 78711
Utah (EPA Porm), Division of Envlronnen-
tal Health. P.O. Box 48800, 8alt Lake
City, Utah 84148-0800
Vermont (State Porm). Underground Stor-
age Tank Program. Vermont A EC/Waste
Management Division. State Office Build-
ing. Montpeller, Vermont 08803, 803/838-
•398
Virginia (EPA Porm), Virginia Water Con-
trol Board, P.O. Box 11143. Richmond,
Virginia 39330-1143. 804/387-M88
Virgin Islands (EPA Porm). 308
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3
t
r
rv-
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224.50-846
PUBLIC HEALTH
412
Compiler's Notes. This section was for-
merly compiled as KRS 224.2635.
224.50-846. Effective date. — KRS 224.50-820 to 224.50-846 shall be-
come effective on January 16, 1991. (Enact. Acts 1990, ch. 368, § 14, effec-
tive January 16, 1991.)
Compiler's Notes. This section was for-
merly compiled as KRS 224.2637.
Subchapter 60. Underground Storage Facilities
224.60-100. Underground storage tanks and regulated substances
defined. — As used in KRS 224.60-105:
(1) "Underground storage tank" means any one (1) or combination of
tanks (including underground pipes connected thereto) used to contain an
accumulation of regulated substances, and the volume of which (including
the volume of the underground pipes connected thereto) is ten percent
(10%) or more beneath the surface of the ground. Such term does not in-
clude any:
(a) Farm or residential tank of one thousand one hundred (1,100) gallons
or less capacity used for storing motor fuel for noncommercial purposes;
(b) Tank used for storing heating oil for consumptive use on the premises
where stored;
(c) Septic tank;
(d) Pipeline facility (including gathering lines) regulated under the Nat-
ural Gas Pipeline Safety Act of 1968, (49 U.S.C. App. 1671, et seq.), the
Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. App. 2001, et
seq.), or which is an intrastate pipeline facility regulated under state laws
comparable to the provisions of the Natural Gas Pipeline Safety Act of 1968
or the Hazardous Liquid Pipeline Safety Act of 1979;
(e) Surface impoundment pit, pond, or lagoon;
(f) Storm water or waste water collection system;
(g) Flow-through process tank;
(h) Liquid trap or associated gathering lines directly related to oil or gas
production and gathering operations; or
(i) Storage tank situated in an underground area (such as a basement,
cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated
upon or above the surface of the floor.
(2) "Regulated substance" means any substance defined in Section
101(14) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, but not including any substance regulated as a
hazardous waste under Subtitle C, and petroleum, including crude oil or
any fraction thereof which is liquid at standard conditions of temperature
and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch abso-
lute). (Enact. Act 1986, ch. 237, § 6, effective July 15, 1986.)
-------
(413
ENVIRONMENTAL PROTECTION
224.60-110
Compiler's Notes. This section was for-
merly compiled as KRS 224.810.
224.60-105. Registration of underground storage tanks — Pro-
gram to regulate tanks. — (1) Owners of any underground storage tank,
currently existing, or taken out of operation after January 1, 1974, shall
notify the cabinet of the existence of such tanks and a description of the
tank and its use in accordance with regulations promulgated by the cabi-
net.
(2) The cabinet shall regulate underground storage tanks by requiring
minimum construction and performance standards, leak detection, record
keeping, reporting releases, corrective actions, closure, financial responsi-
bility, and any other requirement deemed necessary by the cabinet to pro-
tect the public health and environment. In promulgating regulations to
carry out this section the cabinet may distinguish between types, classes,
and ages of underground storage tanks*.
(3) It is the intent of the General Assembly that the cabinet shall estab-
lish a program to regulate underground storage tanks which implements
federal regulatory requirements for underground storage tanks. The cabi-
net shall develop and implement a program and promulgate administrative
regulations for underground storage tanks which shall be submitted for
approval to the United State Environmental Protection Agency pursuant to
federal regulations.
(4) KRS 224.60-105 to 224.60-160 and administrative regulations pro-
mulgated under authority of KRS 224.60-105 to 224.60-160 shall supercede
and preempt all local laws, ordinances, and regulations pertaining to petro-
Jeum underground storage tanks, except:
(a) Any applicable fire marshal regulations or local building permit pro-
cedures for petroleum storage tank installations;
(b) Any local law, ordinance, or regulation promulgated before July 15,
1990; or
(c) Any local restrictions or conditions imposed pursuant to KRS Chapter
100. (Enact. Act 1986, ch. 237, § 7, effective July 15, 1986; 1990, ch. 370,
§ 3, effective April 9, 1990.)
Compiler's Notes. This section was for-
merly compiled as KRS 224.814.
224.60-110. Legislative findings and intent. — The General Assem-
bly of the Commonwealth of Kentucky finds and declares that:
(1) Significant quantities of petroleum and petroleum products are being
stored in petroleum storage tanks in the state to meet the needs of its
citizens and to foster economic growth and development and the overall
quality of life in the state;
(2) Spills, leaks, discharges, and other releases into the environment
from petroleum storage tanks, however, have occurred, are occurring, or
will occur, and such releases may pose a threat to public health and safety
and the environment;
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224.60-115
PUBLIC HEALTH
414
(3) Adequate financial resources must be readily available to provide a
means for investigation and cleanup of contamination without delay;
(4) In recent years, petroleum storage tank owners or operators have
been unable to obtain affordable pollution liability insurance coverage to
pay for corrective action measures;
(5) It is in the best interests of the state to protect public health and
safety and the environment by creating a fund for corrective action mea-
sures for releases into the environment from petroleum storage tanks;
(6) Commercial insurers may increase the availability and affordability
of pollution liability insurance coverage for petroleum storage tanks if a
comprehensive and efficient financial responsibility program for tanks is
established;
(7) An efficient program of financial responsibility should include correc-
tive action requirements that encourage petroleum storage tank owners or
operators to take corrective action measures in the first instance;
(8) An efficient program of financial responsibility for petroleum storage
tanks should minimize disputes over the causation of and responsibility for
releases into the environment from petroleum storage tanks;
(9) It is necessary and essential that the state use all practical means to
control or eliminate pollution hazards posed by leaking petroleum storage
tanks; and
(10) It is the intent of the General Assembly that a state fund be created
to assist petroleum storage tank owners or operators in complying with the
federal financial responsibility requirements promulgated under federal
regulations and to assist petroleum storage tank owners or operators in
cleaning up contamination caused by a release. (Enact. Acts 1990, ch. 370,
§ 1, effective April 9, 1990.)
Compiler's Notes. The section was for-
merly compiled as KRS 224.815.
224.60-115. Definitions for KRS 224.60-120 to 224.60-150. — As used
in KRS 224.60-120 to 224.60-150, unless the context otherwise requires:
(1) "Bodily injury and property damage" means only those actual eco-
nomic losses to an individual or the individual's property resulting from
bodily injuries and damages to property caused by a release into the envi-
ronment from a petroleum storage tank;
(2) "Cabinet" means the Natural Resources and Environmental rrotec-
tion Cabinet;
(3) "Claim" means any demand in writing for a certain sum;
(4) "Commission" means the Petroleum Storage Tank Environmental
Assurance Fund Commission;
(5) "Corrective action" means those actions necessary to protect human
health and the environment in the event of a release from a petroleum
storage tank. Corrective action includes initial responses taken pursuant to
KRS 224.60-135, remedial actions to clean up contaminated groundwater,
surface waters, or soil, actions to address residual effects after initial cor-
rective action is taken, and actions taken to restore or replace potable
-------
415
ENVIRONMENTAL PROTECTION
224.60-115
water supplies. Corrective action also includes actions necessary to moni-
tor, assess, and evaluate a release, as well as actions necessary to monitor,
assess, and evaluate the effectiveness of remedial action after a release has
occurred;
(6) "Dealer" means a person required to be licensed as a gasoline or
special fuels dealer as defined in KRS 138.210(2);
(7) "Facility" means, with respect to any owner or operator, all petro-
leum storage tanks which are owned or operated by an owner or operator
and are located on a single parcel of property or on any contiguous or
adjacent property;
(8) "Federal regulations" means regulations for underground petroleum
storage tanks promulgated by the United States Environmental Protection
Agency pursuant to Subtitle I of the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery Act;
(9) "Free product" means a regulated substance that is present as a non-
aqueous phase liquid;
(10) "Fund" means the petroleum storage tank environmental assurance
fund established pursuant to KRS 224.60-140;
(11) "Gasoline" means gasoline as defined in KRS 138.210(4);
(12) "Occurrence" means an accident, including continuous or repeated
exposure to conditions, which result in a release into the environment from
a petroleum storage tank;
(13) "Person" means an individual, trust, firm, joint stock company, cor-
poration, the state, a municipality, commission, or political subdivision of
the state. The term includes a consortium, a joint venture, or a commercial
-entity;
(14) "Petroleum" and "petroleum products" means crude oil, or any frac-
tion thereof, which is liquid at standard conditions of temperature and
pressure, which means at sixty (60) degrees Fahrenheit and 14.7 pounds
per square inch absolute. The term includes motor gasoline, gasohol, other
alcohol-blended fuels, diesel fuel, heating oil, special fuels, lubricants, and
used oil;
(15) "Petroleum storage tank" means an underground storage tank, as
defined by KRS 224.60-100, which contains petroleum or petroleum prod-
ucts but shall not include petroleum storage tanks used exclusively for
storage of fuel used in the operation of a commercial ship or vessel or tanks
used exclusively for storage of fuel used for the purposes of powering loco-
motives;
(16) "Petroleum storage tank operator" means any person in control of,
or having responsibility for, the daily operation of a petroleum storage
tank;
(17) "Petroleum storage tank owner" means the person who owns a pe-
troleum storage tank, except that petroleum storage tank owner does not
include any person who, without participation in the management of a
petroleum storage tank, holds indicia of ownership primarily to protect a
security interest in the tank;
(18) "Received" means the same as defined in KRS 138.210(5);
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224.60-120
PUBLIC HEALTH
416
(19) "Release" means any spilling, leaking, emitting, discharging, escap-
ing, leaching or disposing from a petroleum storage tank into groundwater,
surface water, or surface or subsurface soils. The term shall not include
releases that are permitted or authorized by the state or federal law; and
(20) "Special fuels" means special fuels as defined in KRS 138.210(4).
(Enact. Acts 1990, ch. 370, § 2, effective April 9, 1990.)
Compiler's Notes. This section was for- and Recovery Act, referred to in subdivision
merly compiled as KRS 224.816. (8) of this section is compiled as 42 U.S.C.
Subtitle I of the Solid Waste Disposal Act, §§ 6901, 6902-6907.
as amended by the Resource Conservation
224.60-120. Financial responsibility of petroleum storage tank
owner or operator.,— (1) Each petroleum storage tank owner or operator
shall establish and maintain evidence of financial responsibility, as pro-
vided for in this section, for taking corrective action and for compensating
third parties for bodily injury and property damage.
(a) For petroleum storage tank owners or operators of six (6) or more
tanks, the level of financial responsibility to be established and maintained
shall be twenty-five thousand dollars ($25,000) per occurrence for taking
corrective action and twenty-five thousand dollars ($25,000) per occurrence
for compensating third parties for bodily injury and property damage.
(b) For petroleum storage tank owners or operators of five (5) or less
tanks, the level of financial responsibility to be established and maintained
shall be ten thousand dollars ($10,000) per occurrence for taking corrective
action and ten thousand dollars ($10,000) per occurrence for compensating
third parties for bodily injury and property damage.
(2) Evidence of financial responsibility may be established by any combi-
nation of the following:
(a) Commercial or private insurance, including risk retention groups;
(b) Qualification as a self-insurer;
(c) A guarantee, surety bond, or letter of credit; or
(d) Any other reasonable and economically practicable means in a form
acceptable to the commission.
(3) To qualify as a self-insurer the petroleum storage tank owner or
operator shall demonstrate a net worth equal to or in excess of the amounts
specified in subsection (1) of this section. "Net worth" shall mean the mone-
tary value of assets that remain after deducting liabilities. "Assets" shall
mean all existing and all probable future economic benefits obtained or
controlled by a particular entity as a result of past transactions.
(4) The total liability of any guarantor under KRS 224.60-105 to
224.60-160 is limited to the aggregate amount which the guarantor has
provided as evidence of financial responsibility to the petroleum storage
tank owner or operator pursuant to this section. This subsection does not
limit any other state or federal statutory, contractual, or common law lia-
bility of a guarantor to a petroleum storage tank owner or operator, includ-
ing, but not limited to, the liability of the guarantor for bad faith either in
negotiating or in failing to negotiate the settlement of any claim. "Guaran-
tor" shall mean any person, other than the petroleum storage tank owner
-------
417
ENVIRONMENTAL PROTECTION
224.60-130
or operator, who provides evidence of financial responsibility for a petro-
leum storage tank owner or operator pursuant to this section.
(5) It is the intent of the General Assembly that the fund established
pursuant to KRS 224.60-140, combined with the financial responsibility
required by this section, may be used by petroleum storage tank owners or
operators to demonstrate their compliance with any financial responsibility
requirements promulgated under federal regulations.
(6) The commission shall promulgate administrative regulations to im-
plement this section. In promulgating administrative regulations, the com-
mission shall not restrain or limit the use of any of the means of establish-
ing financial responsibility specified in this section. (Enact. Acts 1990, ch.
370, § 4, effective April 9, 1990.)
Compiler's Notes. This section was for-
merly compiled as KRS 224.817.
224.60-125. Petroleum Storage Tank Environmental Assurance
Fund Commission. — (1) There is created a Petroleum Storage Tank
Environmental Assurance Fund Commission which shall be composed of
nine (9) members, appointed by the Governor, as follows:
(a) A representative of the Kentucky Petroleum Marketers Association;
(b) A representative of the Kentucky Gasoline Dealers Association;
(c) A representative of the Kentucky Petroleum Council;
(d) A representative of the Kentucky Chamber of Commerce;
(e) A representative of environmental interests;
(f) The Kentucky state fire marshal or a designated representative;
(g) The commissioner of the Department for Environmental Protection
or a designated representative, who shall serve as chairperson of the com-
mission; and
(h) Two (2) at-large members.
(2) The members shall serve four (4) year terms and until successors are
appointed.
(3) Members of the commission shall be reimbursed for expenses for at-
tendance at meetings of the commission.
(4) There shall be no liability on the part of, and no cause of action of any
nature shall arise against the commission, or their agents or employees for
any action taken in the performance of their powers and duties under KRS
224.60-105 to 224.60-160. (Enact. Acts 1990, ch. 370, § 5, effective April 9,
1990.)
Compiler's Notes. This section was for-
merly compiled as KRS 224.818.
224.60-130. Duties of commission. — (1) The commission shall be
created within sixty (60) days from April 9, 1990.
(2) The commission shall:
(a) Establish by administrative regulation the policy, guidelines, and
procedures to administer the petroleum storage tank environmental assur-
ance fund. At a minimum, the commission shall promulgate administrative
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224.60-130
PUBLIC HEALTH
418
regulations that will insure an unobligated balance in the fund adequate to
meet financial assurance requirements and corrective action requirements
of KRS 224.60-135(2) and (4). If the unobligated balance in the fund is not
adequate to meet the requirements of this paragraph, the commission shall
obligate funds necessary to meet these requirements;
(b) Establish criteria to be met by a petroleum storage tank owner or
operator to be eligible to participate in the fund and receive reimbursement
from the fund. At a minimum, the qualifications shall include a reasonable
assurance that the petroleum storage tank owner or operator substantially
complied with all applicable federal and state laws and regulations in effect
at the time of any release;
(c) Hear complaints brought before the commission regarding the pay-
ment of claims from the fund;
(d) Establish and maintain necessary offices within this state, appoirft
employees and agents as necessary and prescribe their duties and compen-
sation;
(e) Employ, in accordance with the procedures found in KRS 45A.690 to
45A.725 for awarding personal service contracts, a qualified actuary to
perform' an actuarial study, no less than every two (2) years, that recom-
mends to the commission an actuarially sound entry level to the fund prior
to two (2) years from April 9, 1990. The commission, shall by administra-
tive regulation, set the entry level based upon the actuarial recommenda-
tion;
(f) Authorize expenditures from the fund to carry out the purpose of KRS
224.60-105 to 224.60-160 including reasonable costs of administering the
fund and the procurement of legal services; and
(g) Be attached to the Natural Resources and Environmental Protection
Cabinet for administrative purposes.
(3) The commission shall hold at least four (4) regular meetings each
calendar year at a place and time to be fixed by the commission. The
commission shall also meet at the request of the chairman of the commis-
sion or upon a written request of three (3) members of the commission. Five
(5) members constitute a quorum, and a quorum may act for the commis-
sion in all matters.
(4) The commission may advise the cabinet on the promulgation of ad-
ministrative regulations concerning petroleum storage tanks.
(5) The commission may sue and be sued in its own name. (Enact. Acts
1990, ch. 370, § 6, effective April 9, 1990.)
Legislative Research Commission Note.
(9/11/91): The former reference to KRS
45.700 to 45.720 contained in paragraph (e)
of subsection (2) of this section has been
changed by the Reviser of Statutes to KRS
45A.690 to 45A.725 pursuant to KRS
7.136(1). KRS 45.700 to 45.720 were repealed
in 1990 (1990 Kentucky Acts Ch. 496, § 67)
and new procedures were created for the
awarding of personal service contracts in
KRS 45A.690 to 45A.725 (Kentucky Acts Ch.
496, §§ 14-21).
Compiler's Notes. This section was for-
merly compiled as KRS 224.819.
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419
ENVIRONMENTAL PROTECTION
224.60-140
,224.60-135. Corrective action for a release into the environment
from a petroleum storage tank. — (1) As required under administrative
regulations of the cabinet, a petroleum storage tank owner or operator
Bfinll commence, or contract for, corrective action for a release into the
environment from a petroleum storage tank.
'2) If a petroleum storage tank owner or operator fails or refuses to take
corrective action, the cabinet may draw funds from the unobligated balance
of the fund to initiate, or contract for, corrective action pursuant to KRS
224.60-105 to 224.60-160 in accordance with subsection (3) of the section.
(3) Except as provided in subsection (4) of this section, before initiating,
or, contracting for, corrective action, the cabinet shall make a reasonable
effort to notify and provide to the petroleum storage tank owner or operator
an opportunity to comply with the requirements of this section.
(4) The cabinet may draw funds from the unobligated balance of the fund
to undertake, or contract for, corrective action necessary to prevent or rem-
edy an emergency situation threatening'public health, safety, or the envi-
ronment, resulting from a release into the environment from a petroleum
storage tank unless a petroleum storage tank owner or operator is taking
appropriate action to abate emergency situations in accordance with ad-
ministrative regulations of the cabinet.
(5) Within six (6) months from April 9,1990, the state fire marshall shall
promulgate administrative regulations which require any person or organi-
zation who installs, repairs, closes, or removes an underground storage
tank for a petroleum storage tank owner or operator to demonstrate finan-
cial capability, including the maintenance of pollution liability insurance,
and technical competency and proficiency. (Enact. Acts 1990, ch. 370, § 7,
^effective April 9, 1990.)
Legislative Research Commission Note.
(9/21/90) Pursuant to KRS 7.136, a change
has been made in subsection (5) of this stat-
ute to correct a manifest clerical or typo-
graphical error. The words "for a petroleum
storage tank" were in Senate Committee
Amendment No. 2 to House Bill 194 (1990
Acts Chapter 370) but were inadvertently
omitted in the enrolled bill.
Compiler's Notes. This section was for-
merly compiled as KRS 224.820.
224.60-140. Petroleum storage tank environmental assurance
fund. — (1) There is hereby created the petroleum storage tank environ-
mental assurance fund. The fund shall be maintained as a separate and
distinct interest-bearing account. All of the following amounts shall be
deposited in the fund:
(a) All fees collected pursuant to KRS 224.60-150;
(b) Any interest earned upon money deposited in the fund;
(c) Money appropriated by the General Assembly for deposit in the fund;
(d) Any money recovered by the fund pursuant to this section; and
(e) Any money collected in the form of penalties levied pursuant to KRS
224.60-155.
(2) Money in the fund may be used by the commission for the following
purposes:
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224.60-140
PUBLIC HEALTH
420
(a) To reimburse petroleum storage tank owners or operators for the
costs, expenses, and other obligations incurred for corrective action as the
result of a release into the environment from a petroleum storage tank;
(b) For payment of or reimbursement for any third-party claims of any
nature including without limitation, claims for bodily injury and property
damage and damage to natural resources which are asserted against a
petroleum storage tank owner or operator as a result of a release into the
environment from a petroleum storage tank; and
(c) To pay the reasonable costs incurred by the commission in adminis-
tering the fund.
(3) The use of the fund for corrective action and compensating third
parties for bodily injury and property damage shall not exceed one million
dollars ($1,000,000) per occurrence.
(4) Money in the fund may be used by the cabinet for costs incurred by
the cabinet for corrective action taken pursuant to KRS 224.60-135(2) and
(4).
(5) The fund shall be used to guarantee payment of reasonable costs and
expenses to a contractor performing corrective action under contract with a
petroleum storage tank owner or operator subject to deductible amounts
payable by the petroleum storage tank owner or operator. Money in the
fund shall be obligated to secure the guarantee.
(6) A petroleum storage tank owner or operator may apply to the com-
mission for reimbursement from the fund of costs to perform corrective
action, except that the petroleum storage tank owner or operator shall be
responsible for and shall not be reimbursed for an amount equal to the
entry level into the fund as set pursuant to KRS 224.60-120(1).
(7) The commission or its designated agent shall issue all decisions made
on claims filed pursuant to this section in writing; with notification to all
appropriate parties, within ninety (90) days after submission of the claim,
unless all parties to the claim agree in writing to an extension of time.
(8) Except as provided in subsection (9) any costs incurred and payable
from the fund for corrective action taken pursuant to KRS 224.60-135(2)
shall be recovered by the commission from the petroleum storage tank
owner or operator which released the petroleum or petroleum products into
the environment.
(9) The liability of a petroleum storage tank owner or operator subject to
a cost recovery under this section shall not exceed an amount equal to the
entry level into the fund, the commission's cost incurred in the cost recov-
ery, and any penalties applied in accordance with KRS 224.60-155. This
amount shall include any expenditures made by the petroleum storage
tank owner or operator for the release into the environment from the petro-
leum storage tank that is the subject of the cost of recovery.
(10) The amount of costs determined pursuant to subsection (8) of this
section shall be recoverable in a civil action. This subsection does not de-
prive a party of any defense the party may have.
(11) Money recovered by the commission pursuant to this section shall be
deposited in the fund.
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421
ENVIRONMENTAL PROTECTION
224.60-145
(12) Upon motion and sufficient showing by any party, the court shall
join to the action any person who may be liable for costs or expenditures
recoverable pursuant to this section.
(13)(a) Any party found liable for any costs or expenditures recoverable
under this section who establishes that only a portion of those costs or
expenditures are attributable to their actions, shall pay only for that por-
tion.
(b) If the trier of fact finds the evidence insufficient to establish each
party's portion of costs or expenditures pursuant to subsection (12) of this
section, the court shall apportion those costs or expenditures, to the extent
practicable according to equitable principles among the defendants.
(c) The fund shall pay any portion of the judgment in excess of the aggre-
gate amount of costs or expenditures apportioned under paragraphs (a) and
(b) of this subsection.
(14)(a) No indemnification, hold harjnless, conveyance, or similar agree-
ment shall be effective to transfer any liability for costs recoverable under
this section. This subsection shall not bar any agreement to insure, hold
harmless, or indemnify a party to the agreement for any costs under KRS
224.60-105 to 224.60-160.
(b) The entry of judgment against any party to the action shall not bar
any future action by the fund against any other person who is later discov-
ered to be potentially liable for costs paid from the fund.
(c) Payment of any claim by the fund pursuant to KRS 224.60-105 to
224.60-160 shall be subject to the state acquiring by subrogation the rights
of the claimant to recover those costs of corrective action for which it has
compensated the claimant from the person responsible or liable for the
release.
(15) This section shall not be construed as authorizing recovery for costs
of corrective action resulting from any release authorized or permitted
pursuant to state or federal law.
(16) The cabinet shall attempt, to the maximum extent practicable, to
secure or obtain funds that may be available for corrective actions under
federal laws. However, nothing in this subsection shall prevent the cabinet
from expending any funds available under KRS 224.60-105 to 224.60-160 if
such federal funds are determined to be unavailable. (Enact. Acts 1990, ch.
370, § 8, effective April 9, 1990.)
Compiler's Notes. This section was for-
merly compiled as KRS 224.821.
224.60-145. Petroleum environmental assurance fee. — (1) Except
as provided in subsection (2) of this section, there is established a petro-
leum environmental assurance fee to be paid by dealers on each gallon of
gasoline and special fuels received in this state.
(2) All deductions detailed in KRS 138.240(2), gasoline and special fuels
sold for agricultural purposes, and special fuels sold exclusively to heat a
personal residence are exempt from the fee. If a dealer has on file, pursuant
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224.60-150
PUBLIC HEALTH
422
to KRS Chapter 138, a statement supporting a claimed exemption, an addi-
tional statement shall not be required for claiming exemption from the fee.
(3) The fee shall be reported and paid to the Revenue Cabinet at the
same time and in the same manner as is required for the reporting and
payment of the gasoline and special fuels taxes as provided by law.
(4) The petroleum environmental assurance fee shall be set at a rate of
four-tenths of one cent ($0,004) for each gallon until the unobligated bal-
ance of the fund reaches ten million dollars ($10,000,000) and shall drop at
the beginning of the next calendar quarter to a rate that the commission
determines is necessary to maintain a ten million dollar ($10,000,000) bal-
ance. The rate shall be increased at the beginning of the next calendar
quarter after the unobligated fund balance drops to six million dollars
($6,000,000) or less and remain at the higher amount not to exceed four-
tenths of one cent ($0,004) until the unobligated fund balance reaches ten
million dollars ($10,000,000).
(5) The commission shall review the unobligated fund balance at least
quarterly and report to the Revenue Cabinet the rate of the fee to be ap-
plied for the next quarter. The notice shall be given by the commission to
the secretary of the Revenue Cabinet not later than the first day of the
month immediately preceding the quarterly period to which the rate ap-
plies.
(6) All provisions of law related to the Revenue Cabinet's administration
and enforcement of the gasoline and special fuels tax and all other powers
generally conveyed to the Revenue Cabinet by the Kentucky Revised Stat-
utes for the assessment and collection of taxes shall apply with regard to
the fee levied by KRS 224.60-105 to 224.60-160.
(7) The Revenue Cabinet shall refund the fee imposed by KRS
224.60-145 (1) to any person who paid the fee provided they are entitled to a
refund of motor fuel tax under KRS 138.344 to KRS 138.355 and to any
person who paid the fee on transactions exempted under KRS
224.60-145(2). (Enact. Acts 1990, ch. 370, § 9, effective April 9, 1990.)
Compiler's Notes. This section was for-
merly compiled as KRS 224.822.
224.60-150. Funding for administration of underground storage
tank program. — The cabinet shall levy and collect annual fees in the
amount of thirty dollars ($30) per tank from the owners or operators of
underground storage tanks containing regulated substances for the purpose
of funding the administration of the underground storage tank program.
(Enact. Acts 1990, ch. 370, § 10, effective April 9, 1990.)
Compiler's Notes. This section was for-
merly compiled as KRS 224.823.
224.60-155. Penalty. — (1) Any underground storage tank owner or
operator who fails to comply with KRS 224.60-105 or regulations promul-
gated thereto shall be subject to a civil penalty not to exceed five thousand
dollars ($5,000) for each day of violation.
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423
ENVIRONMENTAL PROTECTION
224.70-100
(2) In determining the civil penalty to be imposed pursuant to this sec-
tion, the cabinet or court shall consider all relevant circumstances includ-
ing, but not limited to, the extent of harm or potential harm caused by the
violation, the nature and duration of the violation, the number of past
violations, and any corrective action taken by the underground tank owner
or operator.
(3) 'No civil penalty may be imposed under this section if the under-
ground storage tank owner or operator already has been penalized for the
same violation under federal regulations.
(4) The United States Environmental Protection Agency, for purposes of
collecting civil penalties, is not a third-party claimant under any of the
provisions of KRS 224.60-105 to 224.60-160. (Enact. Acts 1990, ch. 370,
§11, effective April 9, 1990.)
Compiler's Notes. This section was for-
merly compiled as KRS 224.824.
224.60-160. Severability. — If any of the provisions of KRS 224.60-105
to 224.60-160 are invalidated by any court of competent jurisdiction, the
remainder of the provisions shall not be affected. (Enact. Acts 1990, ch. 370,
§ 12, effective April 9, 1990.)
Compiler's Notes. This section was for-
merly compiled as KRS 224.825.
Subchapter 70. Water Quality
224.70-100. Policy and purpose as to water quality. — (1) It is
Hereby declared to be the policy of this Commonwealth to conserve the
waters of the Commonwealth for public water supplies, for the propagation
offish and aquatic life, for fowl, animal wildlife and arboreous growth, and
for agricultural, industrial, recreational and other legitimate uses; to pro-
vide a comprehensive program in the public interest for the prevention,
abatement and control of pollution; to provide effective means for the exe-
cution and enforcement of such program; and to provide for cooperation
with agencies of other states or of the federal government in carrying out
these objectives.
(2) The following are among the purposes of KRS Chapter 224: to safe-
guard from pollution the uncontaminated waters of the Commonwealth; to
prevent the creation of any new pollution of the waters of the Common-
wealth; and to abate any existing pollution. (Enact. Acts 1950, ch. 69, §§ 1,
2; 1978, ch. 384, § 87, effective June 17, 1978.)
Compiler's Notes. This section was origi-
nally compiled as KRS 220.590 and was re-
numbered as KRS 224.020 prior to being re-
numbered as this section.
Cross-References. Fish and wildlife re-
sources, KRS Ch. 150.
Forestry, KRS Ch. 149.
Kentucky Law Journal. Begley and Wil-
liams, Coal Mine Water Pollution: An Acid
Problem with Murky Sollutions, 64 Ky. L.J.
506 (1975-76).
Opinions of Attorney General. The pro-
posed administrative regulation WP-6-2 enti-
tled "Effluent Limitations and Compliance,"
presented to the environmental quality com-
mission on April 23, 1973, is illegal and in
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224.60-115
PUBLIC HEALTH
124
(Enact. Acts 1990, ch. 368, § 13, effective January 16, 1991; 1994, ch. 415,
§ 2, effective July 15, 1994.)
Subchapter 60. Underground Storage Facilities
224.60-115. Definitions for KRS 224.60-120 to 224.60-150.
As used in KRS 224.60-120 to 224.60-150, unless the context otherwise
requires:
(1) "Bodily injury and property damage" means only those actual economic
losses to an individual or the individual's property resulting from bod-
ily injuries and damages to property caused by a release into the envi-
ronment from a petroleum storage tank;
(2) "Cabinet" means the Natural Resources and Environmental Protection
Cabinet;
(3) "Claim" means any demand in writing for a certain sum;
(4) "Commission" means the Petroleum Storage Tank Environmental As-
surance Fund Commission;
(5) "Corrective action" means those actions necessary to protect human
health and the environment in the event of a release from a petroleum
storage tank. Corrective action includes initial responses taken pursu-
ant to KRS 224.60-135, remedial actions to clean up contaminated
groundwater, surface waters, or soil, actions to address residual effects
after initial corrective action is taken, and actions taken to restore or
replace potable water supplies. Corrective action also includes actions
necessary to monitor, assess, and evaluate a release, as well as actions
necessary to monitor, assess, and evaluate the effectiveness of remedial
action after a release has occurred;
(6) "Dealer" means a person required to be licensed as a gasoline or special
fuels dealer as defined in KRS 138.210(2);
(7) "Facility" means, with respect to any owner or operator, all petroleum
storage tanks which are owned or operated by an owner or operator
and are located on a single parcel of property or on any contiguous or
adjacent property;
(8) "Federal regulations" means regulations for underground petroleum
storage tanks promulgated by the United States Environmental Pro-
tection Agency pursuant to Subtitle I of the Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act;
(9) "Free product" means a regulated substance that is present as a non-
aqueous phase liquid;
(10) "Fun3" means the petroleum storage tank environmental assurance
fund established pursuant to KRS 224.60-140;
(11) "Gasoline" means gasoline as defined in KRS 138.210(4);
(12) "Occurrence" means an accident, including continuous or repeated
exposure to conditions, which result in a release into the environment
from a petroleum storage tank;
(13) "Person" means an individual, trust, firm, joint stock company, federal
agency, corporation, the state, a municipality, commission, or political
subdivision of the state. The term includes a consortium, a joint ven-
ture, the United States government, or a commercial entity;
(14) "Petroleum" and "petroleum products" means crude oil, or any frac-
tion thereof, which is liquid at standard conditions of temperature and
pressure, which means at sixty (60) degrees Fahrenheit and 14.7
pounds per square inch absolute. The term includes motor gasoline,
gasohol, other alcohol-blended fuels, diesel fuel, heating oil, special
fuels, lubricants, and used oil;
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125 ENVIRONMENTAL PROTECTION 224.60-120
'Petroleum storage tank" means an underground storage tank, as
bfined by KRS 224.60-100, which contains petroleum or petroleum
products but, for the purpose of participation or eligibility for the fund,
shall not include petroleum storage tanks used exclusively for storage
of fuel used in the operation of a commercial ship or vessel or tanks
used exclusively for storage of fuel used for the purposes of powering
locomotives or tanks owned by a federal agency or the United States
government;
(16) 'Petroleum storage tank operator" means any person in control of, or
having responsibility for, the daily operation of a petroleum storage
tank;
(17) "Petroleum storage tank owner" means the person who owns a petro-
leum storage tank, except that petroleum storage tank owner does not
include any person who, without participation in the management of a
petroleum storage tank, holds inaicia of ownership primarily to protect
a security interest in the tank;
(18) "Received" means the same as defined in KRS 138.210(5);
(19) "Release" means any spilling, leaking, emitting, discharging, escap-
ing, leaching, or disposing from a petroleum storage tank into ground-
water, surface water, or surface or subsurface soils. The term snail not
include releases that are permitted or authorized by the state or fed-
law* and
(20) "Special fuels" means special fuels as defined in KRS 138.210(4).
(Enact. Acts 1990, ch. 370, § 2, effective April 9, 1990; 1992, ch. 450, § 1,
effective April 13, 1992; 1994, ch. 419, § 1, effective April 11, 1994.)
Legislative Research Commission Note. Acts ch. 370, sec. 2. The 1992 amendment to
(2/9/93) When this statute was created in this statute, however, did not include this
1990, the introductory phrase "As used in language. See 1992 Ky. Acts ch. 450, sec. 1.
KRS 224.60-120 to 224.60-150, unless the This erroneous omission has been corrected
context otherwise requires:" appeared before by restoring the language in question as re-
subsection (1) of the statute. See 1990 Ky. quired by KRS 446.280.
-120. Financial responsibility of petroleum storage tank
owner or operator.
(1) Each petroleum storage tank owner or operator shall establish and
maintain evidence of financial responsibility, as provided for in this
section, for taking corrective action and for compensating third parties
for bodily injury and property damage.
(a) For petroleum storage tank owners or operators of eleven (11) or
more tanks, the level of financial responsibility to be established
and maintained shall be twenty-five thousand dollars ($25,000)
per occurrence for taking corrective action and twenty-five thou-
sand dollars ($25,000) per occurrence for compensating third par-
ties for bodily injury and property damage.
(b) For petroleum storage tank owners or operators of six (6) to ten (10)
tanks who have not been issued a closure letter from the cabinet,
the level of financial responsibility to be established and main-
tained shall be five thousand dollars ($5,000) per occurrence for
taking corrective action and five thousand ($5,000) dollars per
occurrence for compensating third parties for bodily injury and
property damage.
(.cj for petroleum storage tank owners or operators of five (5) or less
tanks who have not been issued a closure letter from the cabinet,
the level of financial responsibility to be established and main-
tained shall be one thousand dollars ($1,000) per occurrence for
taking corrective action and for compensating third parties for
bodily injury and property damage.
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224.60-125 PUBLIC HEALTH 126
(2) Evidence of financial responsibility may be established by any combi-
nation of the following:
(a) Commercial or private insurance, including risk retention groups;
(b) Qualification as a self-insurer;
(c) A guarantee, surety bond, or letter of credit; or
(d) Any other reasonable and economically practicable means in a
form acceptable to the commission.
(3) To qualify as a self-insurer the petroleum storage tank owner or opera-
tor shall demonstrate a net worth in excess of the amounts specified in
subsection (1) of this section. "Net worth" shall mean the monetary
value of assets that remain after deducting liabilities. "Assets" shall
mean all existing and all probable future economic benefits obtained or
controlled by a particular entity as a result of past transactions.
(4) The total liability of any guarantor under KRS 224.60-105 to
224.60-160 is limited to the aggregate amount which the guarantor has
provided as evidence of financial responsibility to the petroleum stor-
age tank owner or operator pursuant to this section. This subsection
does not limit any other state or federal statutory, contractual, or com-
mon law liability of a guarantor to a petroleum storage tank owner or
operator, including, but not limited to, the liability of the guarantor for
bad faith either in negotiating or in failing to negotiate the settlement
of any claim. "Guarantor" shall mean any person, other than the petro-
leum storage tank owner or operator, who provides evidence of finan-
cial responsibility for a petroleum storaee tank owner or operator pur-
suant to this section.
(5) It is the intent of the General Assembly that the fund established pur-
suant to KRS 224.60-140, combined with the financial responsibility
required by this section, may be used by petroleum storage tank
owners or operators to demonstrate their compliance with any finan-
cial responsibility requirements promulgated under federal regula-
tions.
(6) The commission shall promulgate administrative regulations to imple-
ment this section. In promulgating administrative regulations, the
commission shall not restrain or limit the use of any of the means of
establishing financial responsibility specified in this section.
(Enact. Acts 1990, ch. 370, § 4, effective April 9, 1990; 1992, ch. 450, § 2,
effective April 13, 1992; 1994, ch. 421, § 4, effective July 15, 1994.)
224.60-125. Petroleum Storage Tank Environmental Assurance
Fund Commission.
(1) There is created a Petroleum Storage Tank Environmental Assurance
Fund Commission which shall be composed of eleven (11) members,
appointed by the Governor, as follows:
(a) A representative of the Kentucky Petroleum Marketers Associa-
tion;
(b) A representative of the Kentucky Gasoline Dealers Association;
(c) A representative of the Kentucky Petroleum Council;
(d) A representative of the Kentucky Chamber of Commerce;
(e) A representative of environmental interests;
(f) The Kentucky state fire marshal or a designated representative;
(g) The commissioner of the Department for Environmental Protection
or a designated representative;
(h) A person trained and experienced in financial risk management;
(i) A representative of the Attorney General's Office; and
(j) Two (2; at-large members.
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127 ENVIRONMENTAL PROTECTION 224.60-130
£21 The members of the commission shall elect a chairperson and vice
phairperson to serve a one (1) year term at the first regular meeting of
the commission conducted after September 1 of each year.
T&r Jpon expiration of the terms of the current members of the commission
who are not public officials, their successors shall be appointed for
terms as follows:
(a) The representative of the Kentucky Petroleum Marketers Associa-
tion and one (1) of the at-large members shall be appointed for
terms of four (4) years;
(b) The representative of the Kentucky Gasoline Dealers Association
and one (1) of the at-large members shall be appointed for terms of
three (3) years;
(c) The representative of the Kentucky Petroleum Council, the repre-
sentative of the environmental interests, and the representative of
the Attorney General's Office shall be appointed for terms of two
(2) years; and
(d) The representative of the Kentucky Chamber of Commerce and the
person trained and experienced in financial risk management
shall be appointed for terms of one (1) year. Thereafter, the mem-
bers shall serve four (4) year terms, and until successors are ap-
pointed.
(4) Members of the commission shall be reimbursed for expenses for atten-
dance at meetings of the commission.
(5) There shall be no liability on the part of, and no cause of action of any
nature shall arise against the commission, or their agents or employees
for any action taken in the performance of their powers and duties
under KRS 224.60-105 to 224.60-160.
(Enact. Acts 1990, ch. 370, § 5, effective April 9, 1990; 1994, ch. 421, § 1,
effective July 15, 1994.)
224.60-130. Duties of commission.
he commission shall be created within sixty (60) days from April 9,
[1990.
'he commission shall:
(a) Establish by administrative regulation the policy, guidelines, and
procedures to administer the petroleum storage tank environmen-
tal assurance fund. In adopting administrative regulations to
carry out this section, the commission may distinguish between
types, classes, and ages of petroleum storage tanks. The commis-
sion shall establish a range of amounts to oe paid from the fund
and shall establish criteria to be met by persons who contract to
perform corrective action to be eligible for reimbursement from the
fund. Persons who contract with petroleum storage tank owners or
operators shall not be paid more than the amount authorized by
the commission for reimbursement from the fund for the perfor-
mance of corrective action. At a minimum, the commission shall
promulgate administrative regulations that will insure an unobli-
gated balance in the fund adequate to meet financial assurance
requirements and corrective action requirements of KRS
224.60-135(2) and (4). If the unobligated balance in the fund is not
adequate to meet the requirements of this paragraph, the commis-
sion shall obligate funds necessary to meet these requirements;
(b) Establish by administrative regulation the criteria to be met tc be
eligible to participate in the fund and receive reimbursement from
the fund. The commission may establish eligibility criteria based
upon the financial ability of the petroleum storage tank owner or
operator. In promulgating administrative regulations to carry out
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224.60-130 PUBLIC HEALTH 128
this section, the commission may distinguish between types,
classes, and ages of petroleum storage tanks and the degree of
compliance of the facility with any administrative regulations of
the cabinet promulgated pursuant to KRS 224.60-105 or applicable
federal regulations;
(c) Establish a financial responsibility account within the fund which
may be used by petroleum storage tank owners and operators to
demonstrate financial responsibility as required by administrative
regulations of the cabinet or the federal government for petroleum
storage tanks, consistent with the intent of the General Assembly
as set forth in KRS 224.60-120(5). The amount to be maintained in
this account shall be established by the commission. To be eligible
to use this account to demonstrate compliance with financial re-
sponsibility requirements of the cabinet or federal regulations, or
to receive reimbursement from this account for taking corrective
action and for compensating third parties for bodily .injury and
property damage, the petroleum storage tank owner or operator
shall meet the eligibility requirements established by administra-
tive regulation promulgated by the commission;
(d) Establish a small operator assistance account within the fund
which may be used by the commission to make or participate in
the making of loans, to purchase or participate in the purchase of
the loans, which purchase may be from eligible lenders, or to in-
sure loans made by eligible lenders;
(e) Establish a petroleum storage tank account within the fund to be
used to pay the costs of corrective action due to a release from a
petroleum storage tank not eligible for reimbursement from the
financial responsibility account. This account shall not be used to
compensate third parties for bodily injury and property damage.
The commission shall establish a ranking system to be used for the
distribution of amounts from this account for the purpose of correc-
tive action. In promulgating administrative regulations to carry
out this section, the commission shall consider the financial ability
of the petroleum storage tank owner or operator to perform correc-
tive action and the extent of damage caused by a release into the
environment from a petroleum storage tank;
(f) Hear complaints brought before the commission regarding the pay-
ment of claims from the fund;
(g) Establish and maintain necessary offices within this state, appoint
^employees and agents as necessary and prescribe their duties and
compensation;
(h) Employ, in accordance with the procedures found in KRS 45A.690
to 45A.725 for awarding personal service contracts, a qualified
actuary to perform an actuarial study, no less than every two (2)
years, that recommends to the commission an actuarially sound
entry level to the fund prior to two (2) years from April 9, 1990.
The commission, shall by administrative regulation, set the entry
level for participation in the fund;
(i) Authorize expenditures from the fund to carry out the purpose of
KRS 224.60-105 to 224.60-160, including reasonable costs of ad-
ministering the fund and the procurement of legal services; and
(j) Be attached to the Natural Resources and Environmental Protec-
tion Cabinet for administrative purposes.
(3) The commission shall hold at least four (4) regular meetings each calen-
dar year at a place and time to be fixed by the commission. The com-
mission shall also meet at the request of the chairman of the commis-
sion or upon a written request of three (3) members of the commission.
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129
ENVIRONMENTAL PROTECTION
224.60-135
Five (5) members constitute a quorum, and a quorum may act for the
mmission in all matters.
( e commission may advise the cabinet on the promulgation of admin-
—~*rative regulations concerning petroleum storage tanks.
(5) The commission may sue and be sued in its own name.
(Enact. Acts 1990, ch. 370, § 6, effective April 9, 1990; 1992, ch. 450, § 3,
effective April 13, 1992.)
Budget Reference. See Appendix to KRS (1st Ex. Sess.), ch. 5, Part IX, Item 38(a) and
Ch. 47,1994-96 Executive Budget (Acts 1994, Final Budget Memorandum, p. 380).
224.60-135. Corrective action for a release into the environment
from a petroleum storage tank.
(1) As required under administrative regulations of the cabinet, a petro-
leum storage tank owner or operator shall commence, or contract for,
corrective action for a release into the environment from a petroleum
storage tank.
(2) If a petroleum storage tank owner or operator fails or refuses to take
corrective action, the cabinet may draw>funds from the unobligated
balance of the fund to initiate, or contract for, corrective action pursu-
ant to KRS 224.60-105 to 224.60-160 in accordance with subsection (3)
of the section.
(3) Except as provided in subsection (4) of this section, before initiating, or
contracting for, corrective action, the cabinet shall make a reasonable
effort to notify and provide to the petroleum storage tank owner or
operator an opportunity to comply with the requirements of this sec-
tion.
(4) The cabinet may draw funds from the unobligated balance of the fund
to undertake, or contract for, corrective action necessary to prevent or
remedy an emergency situation threatening public health, safety, or
the environment, resulting from a release into the environment from a
'troleum storage tank unless a petroleum storage tank owner or oper-
|r is taking appropriate action to abate emergency situations in ac-
. "dance with administrative regulations of the cabinet.
(5) Within six (6) months from April 9, 1990, the state fire marshall shall
promulgate administrative regulations which require any person or
organization who installs, repairs, closes, or removes an underground
storage tank for a petroleum storage tank owner or operator to demon-
strate financial capability, including the maintenance of pollution lia-
bility insurance, and technical competency and proficiency.
(Repealed, reenact., and amend. Acts 1994, ch. 279, § 4, effective July 15,
1994.)
Compiler's Notes. The history of this sec-
tion prior to the 1994 repeal and reenactment
was (Enact. Acts 1990, ch. 370, § 7, effective
April 9, 1990).
Acts 1994, ch. 279, § 7 provides, "In enact-
ing Sections 1 to 4 of this Act, the General
Assembly ratifies and confirms any prior ac-
tions on statutes contained in those sections
by the Reviser of Statutes acting pursuant to
the authority established by KRS 7.140 and
7.136. Nothing in Sections 1 to 6 of this Act
shall be construed under KRS 7.123(4) as ap-
pearing to effect any substantive law in the
statute law of Kentucky, and the repeal and
reenactments contained in Sections 1 to 5 of
this Act shall not operate under KRS 446.260
to defeat any amendments in other Acts of
this session to the statutes contained in those
sections."
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224.60-137 PUBLIC HEALTH 130
224.60-137. Standards for corrective action for release from petro-
leum storage tank — Administrative regulations.
(1) The commission shall have a study performed to identify appropriate
standards for corrective action for a release into the environment from
a petroleum storage tank. The study shall address, but not be limited
to, standards for levels of petroleum contamination, including lead,
requiring corrective action to adequately protect human health, safety,
ana the environment consistent with accepted scientific and technical
principles and federal law. The standards shall take into account dis-
tances to environmentally sensitive features, including surface waters,
wetlands, nature preserves, protected ecological areas, springs and
wells used for domestic water supply, and well head protection areas.
The commission shall contract with a person or persons to perform the
study qualified in the areas of engineering, hydrogeology, geology, tox-
icology, epidemiology, biology, public health, chemistry, and risk as-
sessment. The commission snail provide for the October 18, 1993 study
Eerformed by the University of Kentucky to be completed within one
undred twenty (120) days of April 11, 1994, to comply with the re-
quirements of this subsection.
(2) The commission shall contract with the University of Kentucky, or
another person or persons having the qualifications established in sub-
section (1) of this section, to recommend revisions or amendments to
the study based upon new information or changes in federal law, and to
review and comment to the commission upon the consistency with the
completed study of administrative regulations proposed by the cabinet
pursuant to subsection (3) of this section. The person contracted with to
recommend revisions or amendments to the study shall identify in
writing any inconsistencies of the draft administrative regulations re-
quired by subsection (4) of this section with the completed study. The
cabinet shall comment to the commission on the completed study re-
port and any proposed revisions or amendments to the study. The com-
mission shall approve the completed study report and any revisions or
amendments to the study.
(3) The cabinet shall, by administrative regulation, establish standards for
corrective action for a release into the environment from a petroleum
storage tank. The administrative regulations shall adequately protect
human health, safety and the environment, and shall incorporate the
study performed for the commission, except as necessary to comply
with federal law or as provided in subsection (4) of this section.
(4) Within ninety (90) days of the receipt of the completed study report the
cabinet shall prepare draft administrative regulations for submission
to and review by the person performing the study. The comments re-
quired pursuant to subsection (2) of this section shall be filed with the
commission and the cabinet within sixty (60) days of receipt of the
draft administrative regulations by the commission. If any inconsisten-
cies are identified, the person conducting the review and the cabinet
shall confer to resolve the inconsistencies, and report to the commis-
sion within sixty (60) days. If the person conducting the review and the
cabinet are unable to resolve the inconsistencies, the cabinet and the
commission shall appoint an independent peer review group to resolve
the inconsistencies and recommend amendments to the draft adminis-
trative regulations within sixty (60) days of appointment. The peer
review group shall be appointed by agreement of the cabinet and the
commission. The cabinet shall amend the draft administrative regula-
tions to incorporate the amendments recommended by the peer review
group and file the administrative regulations with the Legislative Re-
search Commission within sixty (60) days of receipt. The administra-
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131
ENVIRONMENTAL PROTECTION
224.60-140
_tive regulations shall be promulgated pursuant to the provisions of
RS Chapter 13A.
^withstanding any provisions of law or KRS Chapter 13A to the
ontrary, the emergency administrative regulations filed by the cabi-
net in February 1994 shall remain in effect until the administrative
regulations required by subsection (3) of this section are adopted and
effective pursuant to the provisions of KRS 13A.330.
(Enact. Acts 1992, ch. 450, § 8, effective April 13, 1992; 1994, ch. 419, § 2,
effective April 11, 1994.)
224.60-138. Reduction of contamination levels by corrective action
or closure — Request for final determination — Hear-
ing — Effect.
(1) If corrective action for a release from or closure of a petroleum storage
tank reduces levels of contamination to less than the standards estab-
lished pursuant to the administrative regulations adopted under KRS
224.60-137, then the cabinet shall approve the corrective action or
closure and issue a notice to the owner or operator that no further
action is required to address the petroleujn contamination.
(2) A person who submits a corrective action proposal to the cabinet may
request in writing a final determination on the proposal no sooner than
thirty (30) days after its submission. When a final determination on
the proposal is requested, the cabinet shall make its final determina-
tion within sixty (60) working days from the date the request is re-
ceived by the cabinet. After a final determination has been made, the
person requesting the final determination may request a hearing pur-
suant to the provisions of KRS 224.10-420. Nothing in this subsection
shall relieve any person of any obligations imposed by law during an
environmental emergency, nor shall it require the cabinet to approve a
proposal which would violate this chapter or the administrative regu-
lations promulgated pursuant thereto.
(Er***. Acts 1994, ch. 419, § 3, effective April 11, 1994.)
23 140. Petroleum storage tank environmental assurance fund.
(1) There is hereby created the petroleum storage tank environmental as-
surance fund. The fund shall be maintained as a separate and distinct
interest-bearing account. All of the following amounts shall be depos-
ited in the fund:
(a) Any interest earned upon money deposited in the fund;
(b) Money appropriated by the General Assembly for deposit in the
fund;
(c) Any money recovered by the fund pursuant to this section; and
(d) Any money collected in the form of penalties levied pursuant to
KRS 224.60-155.
(2) Money in the fund may be used by the commission for the following
purposes:
(a) To reimburse petroleum storage tank owners or operators for the
costs, expenses, and other obligations incurred for corrective action
as the result of a release into the environment from a petroleum
storage tank;
(b) For payment of or reimbursement for any third-party claims of any
nature, including claims for bodily injury and property damage
and damage to natural resources which are asserted against a
petroleum storage tank owner or operator as a result of a release
into the environment from a petroleum storage tank;
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224.60-140
PUBLIC HEALTH
132
(c) To pay the reasonable costs incurred by the commission in adminis-
tering the fund; and
(d) Payment to the cabinet of the costs of implementing the tank regis-
tration required by KRS 224.60-142.
(3) The use of the fund for corrective action and compensating third parties
for bodily injury and property damage shall not exceed one million
dollars ($1,000,000) per occurrence.
(4) Money in the fund may be used by the cabinet for costs incurred by the
cabinet for corrective action taken pursuant to KRS 224.60-135(2) and
(4).
(5) The fund shall be used to guarantee payment of reasonable costs and
expenses to a contractor performing corrective action under contract
with a petroleum storage tank owner or operator subject to entry level
amounts payable by the petroleum storage tank owner or operator.
Money in the fund shall be obligated to secure the guarantee.
(6) A petroleum storage tank owner or operator may apply to the commis-
sion for reimbursement from the fund of costs to perform corrective
action, except that the petroleum storage tank owner or operator shall
be responsible for and shall not be reimbursed for an amount equal to
the entry level into the fund as set pursuant to administrative regula-
tion of the commission.
(7) The commission or its designated agent shall issue all decisions made
on claims filed pursuant to this section in writing, with notification to
all appropriate parties, within ninety (90) days after submission of the
claim, unless all parties to the claim agree in writing to an extension of
time.
(8) Except as provided in subsection (9), any costs incurred and payable
from the fund for corrective action taken pursuant to KRS
224.60-135(2) shall be recovered by the commission from the petroleum
storage tank owner or operator which released the petroleum or petro-
leum products into the environment.
(9) The liability of a petroleum storage tank owner or operator subject to a
cost recovery under this section shall not exceed an amount equal to
the entry level into the fund, the commission's cost incurred in the cost
recovery, and any penalties applied in accordance with KRS
224.60-155. This amount shall include any expenditures made by the
petroleum storage tank owner or operator for the release into the envi-
ronment from the petroleum storage tank that is the subject of the cost
of recovery.
(10) The ahiount of costs determined pursuant to subsection (8) of this
section shall be recoverable in a civil action. This subsection does not
deprive a party of any defense the party may have.
(11) Money recovered by the commission pursuant to this section shall be
deposited in the fund.
(12) Upon motion and sufficient showing by any party, the court shall join
to the action any person who may be liable for costs or expenditures
recoverable pursuant to this section.
(13) (a) Any party found liable for any costs or expenditures recoverable
under this section who establishes that only a portion of those
costs or expenditures are attributable to their actions, shall pay
only for that portion.
(b) If the trier of fact finds the evidence insufficient to establish each
party's portion of costs or expenditures pursuant to subsection (12)
of this section, the court shall apportion those costs or expendi-
tures, to the extent practicable according to equitable principles
among the defendants.
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133 ENVIRONMENTAL PROTECTION 224.60-145
(c) The fund shall pay any portion of the judgment in excess of the
aggregate amount of costs or expenditures apportioned under
paragraphs (a) and (b) of this subsection.
4) (a) No indemnification, hold harmless, conveyance, or similar agree-
ment shall be effective to transfer any liability for costs recover-
able under this section. This subsection shall not bar any agree-
ment to insure, hold harmless, or indemnify a party to the agree-
ment for any costs under KRS 224.60-105 to 224.60-160.
(b) The entry of judgment against any party to the action shall not bar
any future action by the fund against any other person who is later
discovered to be potentially liable for costs paid from the fund.
(c) Payment of any claim by the fund pursuant to KRS 224.60-105 to
224.60-160 shall be subject to the state acquiring by subrogation
the rights of the claimant to recover those costs of corrective action
for which it has compensated the claimant from the person respon-
sible or liable for tne release.
(15) This section shall not be construed as authorizing recovery for costs of
corrective action resulting from any release authorized or permitted
pursuant to state or federal law.
(16) The cabinet shall attempt, to the maximum extent practicable, to se-
cure or obtain funds that may be available for corrective actions under
federal laws. However, nothing in this subsection shall prevent the
cabinet from expending any funds available under KRS 224.60-105 to
224.60-160 if such federal funds are determined to be unavailable.
(17) The fund shall not be used for corrective action, reimbursement, or
third-party liability resulting from releases from petroleum storage
tanks used exclusively for storage of fuel used in the operation of a
commercial ship or vessel oil tanks used exclusively for storage of fuel
used for the purposes of powering locomotives.
(Enact. Acts 1990, ch. 370, § 8, effective April 9, 1990; 1992, ch. 450, § 4,
effective April 13, 1992.)
Opinions of Attorney General. Attorney performed is reasonably and necessarily re-
are reimbursable by the Petroleum Stor- quired for assessment or remediation efforts
Tank Environmental Assurance Com- 0f a specific site or sites. The Commission is
"Ssion where the fee represents a reason- not authorized to pay for general advice or
able cost for actual work performed, as indi- other matters which are not specifically re-
cated by complete and comprehensive invoic- quired for the cleanup effort. OAG 93-34.
ing from the attorney, and where the work
224.60-142. Registration for participation in fund — Time deadlines.
(1) To be eligible to participate in the fund, the owner of any petroleum
storage tank currently existing, or removed from the ground after Jan-
uary 1, 1974, shall register the petroleum storage tank with the cabi-
net prior to applying to the fund, and shall register the petroleum
storage tank by July 15, 1995.
(2) The commission may extend the time period to register a petroleum
storage tank from July 15, 1995, to July 15, 1996.
(Enact. Acts 1992, ch. 450, § 5, effective April 13, 1992; 1994, ch. 421, § 2,
effective July 15, 1994.)
224.60-145. Petroleum environmental assurance fee.
(1) Except as provided in subsection (2) of this section, there is established
a petroleum environmental assurance fee to be paid by dealers on each
gallon of gasoline and special fuels received in this state.
(2) All deductions detailed in KRS 138.240(2), gasoline and special fuels
sold for agricultural purposes, and special fuels sold exclusively to heat
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224.60-150 PUBLIC HEALTH 134
a personal residence are exempt from the fee. If a dealer has on file,
pursuant to KRS Chapter 138, a statement supporting a claimed ex-
emption, an additional statement shall not be required for claiming
exemption from the fee.
(3) The fee shall be reported and paid to the Revenue Cabinet at the same
time and in the same manner as is required for the reporting and
payment of the gasoline and special fuels taxes as provided by law.
(4) The petroleum environmental assurance fee shall be set at a rate up to
but not to exceed one and four-tenths cent ($0,014) for each gallon.
(5) The commission shall review the unobligated fund balance at least
quarterly and report to the Revenue Cabinet the rate of the fee to be
applied for the next quarter.
(6) All provisions of law related to the Revenue Cabinet's administration
ana enforcement of the gasoline and special fuels tax and all other
powers generally conveyed to the Revenue Cabinet by the Kentucky
Revised Statutes for the assessment and collection of taxes shall apply
with regard to the fee levied by KRS 224.60-105 to 224.60-160.
(7) The Revenue Cabinet shall refund the fee imposed by KRS
224.60-145(1) to any person who paid the fee provided they are entitled
to a refund of motor fuel tax under KRS 138.344 to KRS 138.355 and to
any person who paid the fee on transactions exempted under KRS
224.60-145(2).
(Enact. Acts 1990, ch. 370, § 9, effective April 9, 1990; 1992, ch. 450, § 6,
effective April 13, 1992; 1994, ch. 421, § 3, effective July 15, 1994.)
224.60-150. Funding for administration of underground storage
tank program.
(1) The cabinet shall levy and collect annual fees in the amount of thirty
dollars ($30) per tank from the owners or operators of underground
storage tanks containing regulated substances for the purpose of fund-
ing the administration of the underground storage tank program. The
fees shall be deposited into an interest-bearing account in the State
Treasury. Money unexpended at the close of a fiscal year shall not
lapse, but shall be carried forward to the next fiscal year or biennium
for future use.
(2) The cabinet shall recover actual and necessary expenditures incurred
in the administration of the underground storage tank program includ-
ing expenditures for corrective action. Any expenditures recovered
shall be placed in the account established by this section.
(Enact. Acts 1990, ch. 370, § 10, effective April 9, 1990; 1992, ch. 450, § 7,
effective April 13, 1992.)
Subchapter 70. Water Quality
224.70-140. Consistency of permits with Kentucky River Authority's
administrative regulations and plans.
Permits issued by the cabinet pursuant to the provisions of KRS Chapters
151, 146, or 224 shall be consistent with the administrative regulations
promulgated by the Kentucky River Authority, and the long-range water
resource plan and drought response plans developed by the authority.
(Enact. Acts 1992, ch. 453, § 3, effective July 14, 1992.)
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KENTUCKY
DIVISION OF WASTE MANAGEMENT

UNDERGROUND STORAGE TANK
REGULATIONS
Prepared by: Dept. for Environmental Protection
Division of Waste Management
14ReillyRoad
Frankfort, Kentucky 40601
(502)564-6716
INFORMATIONAL COPY - SUBJECT TO CORRECTION - PRINTED ON RECYCLED PAPER
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PREFACE
KENTUCKY ADMINISTRATIVE REGULATIONS are codified according to
the following system and are to be cited by Title, Chapter, and
Regulations number,, as follows:
Title
806
Cabinet or
Department
KAR
Kentucky Admin-
istrative Regulation
Chapter
50
Department,
Division
Board, or
Major Function
Regulation
155
Specific
Area of
Regulation
Title 4.01 contains the regulations of the Department for
Environmental Protection. Prior to March l, 1983, the waste
management regulations were codified - in 401- KAR Chapter 2.
Effective March l, 1983, the waste management - regulations were
recodified as 401 KAR Chapters 30 through.49. The waste management
regulations in 401 KAR Chapters 30 through 49 are organized by
major functions.
The text of each regulation is based on the following system
of enumeration:
Section 1.
(1 ) (this is a subsection)
(2 )
(a ) (this is a paragraph)
(b )
1 . (this is a subparagraph)
2.
a .
b. (this is a subsuboaragraoh)
(i)
(ii) (this is a subsubsubparagraph) .
Section 2.
The Kentucky Waste Management Regulations are printed by the
Natural Resources and Environmental Protection Cabinet with the
permission of the Legislative Research Commission.
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Americans with Disabilities Act Compliance
The Americans with Disabilities Act (ABA) beceime effective
January 26, 1992, for all governmental agencies of. the state of
Kentucky. The purpose of this Act is to provide a national mandate
for the elimination of discrimination against. individuals . with
disabilities. The initial phase of implementation of this Act was
completed in August, 1992 and required a self-evaluation of all
operations, including facilities, communications, publications,
public meetings, signage, employment practices and program
activities to ensure non-discrimination and accessibility for the
disabled.
The Natural Resources and Environmental Protection Cabinet
does not discriminate on the basis of race, color, national origin,
sex, religion, age or disability in employment or the provision of
services. Upon request, the Cabinet provides reasonable
accommodation including auxiliary 'aids and services necessary to
afford individuals with disabilities an equal opportunity to
participate in all programs and activities.
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Table of Contents
Title 401
Natural Resources and Environmental Protection Cabinet
Department for Environmental Protection
Division of Waste Management
Underground Storage Tank Regulations
apter 30 — General Administrative Procedures
30:005
Definitions Related to Chapter 30
30:010
Adoption Without Change
30:020
General Provisions
30:031
Environmental Performance Standards
30:040
Transfer of Regulatory Responsibility
30:070
Reference Documents
30:080
Standards for Variances
Chapter 40 — Enforcement and Compliance Monitoring
40:001
Definitions Related to Chapter 40
40:010
General Enforcement Provisions
40:020
Inspections
40:030
Hearings
40:040
Remedies
40:050
Penalties
40:060
County Enforcement Representatives
Chapter 42 — Underground Storage Tanks
42:005 Definitions Related to Chapter 42
42:011 Scope of Underground Storage Tank Program
42:020 Performance Standards for New UST Systems
42:030 General Operating Requirements
42:040 Release Detection
42:050 Release Reporting, Investigation, and Confirmation
42:060 Release Response and Corrective Action for UST Systems Containing
Petroleum or Hazardous Substances
42:070 Out-of-service UST Systems, Temporary Closure and Permanent Closure of
UST Systems, and Change-in-service of UST Systems
42:071 Voluntary Closure for Facilities that Permanently Closed UST System or Had
a Confirmed Release Prior to April 18,1994
42:080 Classification of Petroleum Underground Storage Tank Systems and Listing
of Associated Cleanup Levels
42:090 Financial Responsibility
42:200 Underground Storage Tank System Owner Registration Fees
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TITLE 401
NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET
DEPARTMENT FOR ENVIRONMENTAL PROTECTION
DIVISION OF WASTE MANAGEMENT
Chapter 30
WASTE MANAGEMENT - GENERAL ADMINISTRATIVE PROCEDURES
401 KAR 30:005 Definitions Related to 401 KAR Chapter 30
401 KAR 30:010 Adoption Without Change
401 KAR 30:020 General Provisions
401 KAR 30:031 Environmental Performance Standards
401 KAR 30:040 Transfer of Regulatory Responsibility
401 KAR 30:070 Reference Documents
401 KAR 30:080 Standards for Variances
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Effective Date - March 12,1997
401 KAR 30:005. Definitions Related to 401 KAR Chapter 30
RELATES TO: KRS 224.01,224.10,224.40,224.43,224.46,224.50,224.60,224.99,
40 CFR 260.10, and 401 KAR Chapter 30
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY AND FUNCTION: KRS 224.10-100 and the waste management provisions
of KRS Chapter 224 require the Cabinet to adopt administrative regulations for the management of
solid, special, and hazardous wastes. This chapter establishes the general administrative procedures
that are applicable to 401 KAR Chapter 30. This administrative regulation defines essential terms,
acronyms, and abbreviations used in connection with this Chapter.
Section 1. Definitions. Unless otherwise specifically defined in KRS Chapter 224 or
otherwise specifically indicated by context, terms in 401 KAR Chapter 30 shall have the meanings
given in this Section.
(1) "100-year flood" means a flood that has a one (1) percent chance of being equaled
or exceeded in any given year.
(2) "Application" means the form approved by the Cabinet for applying for a permit,
including any additions, revisions or modifications and any narrative and drawings required by 401
KAR Chapters 30 to 48. The term includes: Part A of the application (Part A); Part B of the
application (Part B); notice of intent; administrative application; special waste application; or
technical application.
(3) "Cabinet" shall have the meaning specified in KRS 224.01-010.
(4) "Coal mining waste" means earth materials which are combustible, physically
unstable, or acid-forming or toxic-forming, that are generated during and incidental to the mining
and extraction of coal and to the washing and crushing of coal. The term does not include used oil,
paints or flammable liquids. The term includes the following:
(a) Refuse which is that waste material in the raw coal which it is the object of cleaning
to remove;
(b) Overburden which includes all of the earth and other geologic materials, excluding
topsoil, which lie above a natural deposit of coal and also means such earth and other material after
removal from their natural state in the process of mining; and
(c) Coal mining by-products which include any material that is not one (1) of the primary
products of a particular coal mining operation, is a secondary and incidental product of the particular
operation and would not be solely and separately mined by the particular operation. The term does
not include an intermediate mining product which results from one (1) of the steps in a mining
process and is processed through the next step of the process within a short time. An example of a
coal mining by-product is that part of the ore deposit that is too low in grade to be of economic value
at the time, but which is stored separately in the hope that it can be profitably treated later.
401 KAR 30:005 - 1
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(5) "Contaminate" means introduce a substance that would cause:
(a) The concentration of that substance in the groundwater to exceed the maximum
contaminant level specified in 401 KAR 30:031, Sections 5 and 6 of 401 KAR 47:030, or Section
8 of 401 KAR 34:060;
(b) An increase in the concentration of that substance in the groundwater where the
existing concentration of that substance exceeds the maximum contaminant level specified in 401
KAR 30:031,401 KAR 47:030, or Section 8 of 401 KAR 34:060; or
(c) A significant increase above established background levels, for substances that do
not have an established maximum contamination level.
(6) "Contamination" means the degradation of naturally occurring water, air, or soil
quality either directly or indirectly as a result of human activities.
(7) "Destruction or adverse modification" means an alteration of critical habitat which
appreciably diminishes the likelihood of the survival and recovery of threatened or endangered
species using that habitat.
(8) "Disposal" shall have the meaning specified in KRS 224.01-010.
(9) "Endangered or threatened species" means any species listed as such pursuant to
Section 4 of the Endangered Species Act, as amended, 16 USC 1536.
(10) "Federal agency" means any department, agency, or other instrumentality of the
federal government, any independent agency or establishment of the federal government including
any government corporation, and the United States Government Printing Office.
(11) "Food chain crops" means tobacco, crops grown for human consumption, and crops
grown for feed for animals whose products are consumed by humans.
(12) "Groundwater" means the subsurface water occurring in the zone of saturation
beneath the water table, and perched water zones below the B-soil horizon, including water
circulating through fractures, bedding planes, and solution conduits.
(13) "Hazardous waste" shall have the meaning specified in KRS 224.01-010.
(14) "Hydric soils" means soils that, in their undrained condition, are saturated, flooded,
or ponded long enough during a growing season to develop an anaerobic condition that supports the
growth and regeneration of hydrophytic Vegetation.
(15) "Hydrophytic vegetation" means a plant growing either in water, or in a substrate that
is at least periodically deficient of oxygen during a growing season as a result of excessive water
content.
(16) "Karst terrain" means a type of topography where limestone, dolomite or gypsum is
present and is characterized by naturally occurring closed topographic depressions or sinkholes,
caves, disrupted surface drainage, and well developed underground solution channels formed by
dissolution of these rocks by water moving underground.
(17) "Lower explosive limit" means the lowest percent by volume of a mixture of
explosive gases which will propagate a flame in air at twenty-five (25) degrees Celsius and
atmospheric pressure.
(18) "Open burning" means the combustion of any material or solid waste without:
(a) Control of combustion air to maintain adequate temperature for efficient combustion;
401 KAR 30:005-2
-------
(b) Containment of the combustion reaction in an enclosed device to provide sufficient
residence time and mixing for complete combustion; and
(c) Control of emission of the gaseous combustion products.
(19) " Operator" means any person responsible for overall operation of an on-site or off-site
waste facility, including any private contractor conducting operational activities at a federal facility.
(20) "Owner" means any person who owns an on-site or off-site waste facility, or any part
of a facility.
(21) "Permit" means the authorization or other control document issued by the Cabinet
to implement the requirements of the waste management administrative regulations. The term permit
includes permit-by-rule, registered permit-by-rule, research, development, and demonstration permit,
and emergency permit. However, the term permit does not include draft permit or proposed permit.
(22) "Person" shall have the meaning specified in KRS 224.01-010.
(23) "Point source" means any discernible, confined, and discrete conveyance including
but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, vessel or other floating craft from which pollutants
are or may be discharged. This term does not include return flows from irrigated agriculture.
(24) "Recycling" shall have the meaning specified in KRS 224.01-010.
(25) "Sludge" means any solid, semisolid, or liquid waste generated from a municipal,
commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution
control facility exclusive of the treated effluent from a wastewater treatment plant or any other waste
having similar characteristics and effects.
(26) "Solid waste" shall have the same meaning as KRS 224.01-010.
(27) "State" means any of the fifty (50) states, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Northern Mariana Islands
or Guam but does not include any foreign country.
(28) "Storage" shall have the meaning specified in KRS 224.01-010.
(29) "Termination" shall have the meaning specified in KRS 224.01-010.
(30) "Transportation" shall have the meaning specified in ICRS 224.01-010.
(31) "Washout" means the carrying away of waste by waters as a result of flooding.
(32) "Waste" shall have the meaning specified in KRS 224.01-010.
(33) "Water" or "Waters of the Commonwealth" shall have the meaning specified in KRS
224.01-010.
(34) "Well" means any shaft or pit dug or bored into the earth, generally of cylindrical
form, and often walled with bricks or tubing to prevent the earth from caving in.
(35) "Wetlands" means land that has a predominance of hydric soils and is inundated or
saturated by surface or groundwater at a frequency and duration sufficient to support, and that under
normal circumstances does support, a prevalence of hydrophytic vegetation typically adapted for life
in saturated soil conditions.
Section 2. Acronyms and Abbreviations. Unless otherwise specifically indicated
by context, acronyms and abbreviations used in 401 KAR Chapter 30 shall have the meaning as
identified in Table 1 of this administrative regulation.
401 KAR 30:005 -3
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Table 1. Acronyms and Abbreviations
CFR
Code of Federal Regulations
KAR
Kentucky Administrative Regulation
KRS
Kentucky Revised Statute
PCB
Polychlorinated biphenyl
UICP
Underground Injection Control Program
use
United States Code
U.S. EPA
United States Environmental Protection Agency
401 KAR 30:005-4
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Effective Date - March 12,1997
401 KAR 30:U10. Adoption Without Change
RELATES TO: KRS 224.01,224.10,224.40,224.43,224.46,224.50,224.99,40 CFR
260.10 to 260.11, Appendix X of 40 CFR Part 261
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY AND FUNCTION: KRS 224.10-100 and the waste management provisions
of KRS Chapter 224 require the Cabinet to adopt administrative regulations for the management of
solid, special, and hazardous wastes. This chapter establishes the general administrative procedures
that are applicable to 401 KAR Chapters 31 to 49. This administrative regulation defines essential
terms used in connection with the waste management administrative regulations.
Section 1. Definitions. The definitions previously found in this section have been
relocated to the applicable definition regulations of 401 KAR Chapters 30 through 49.
Section 2. Acronyms and Abbreviations. The acronyms and abbreviations
previously found in this section have been relocated to Section 2 in the applicable definition
regulations of 401 KAR Chapters 30 through 49.
Section 3. References.
(1) The following document is hereby adopted without change, 40 CFR 260.11 as of July
1, 1995, which incorporates SW-846 "Test Methods for the Evaluation of Solid Waste,
Physical/Chemical Methods" Third Edition (November, 1986), as amended by Updates I (July,
1992), II (September, 1994), IIA (August, 1993), and IIB (January, 1995).
(2) The document referenced in subsection (1) of this section is available for inspection
and copying, subject to copyright law, at the Division of Waste Management, 14 Reilly Road,
Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m. eastern time, Monday through
Friday, excluding state holidays.
401 KAR 30:010 - 1
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Effective Date - May 8,1990
401 KAR 30:020. General Provisions.
RELATES TO: KRS 224.10,224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY AND FUNCTION: KRS 224.10-100 and the waste management provisions
of KRS Chapter 224 require the Cabinet to adopt rules and regulations for the generation, treatment,
storage, recycling and disposal of hazardous wastes and the disposal of solid wastes. This chapter
establishes the general administrative procedures which are applicable 401 KAR Chapters 31
through 49. This administrative regulation sets forth general provisions which apply to the waste
management regulations with regard to applicability, scope, exceptions, variances, general
prohibitions, compatibility, conflicting provisions, severability, availability and confidentiality of
information.
Section 1. Applicability. The waste management regulations shall apply to the
disposal of solid waste and the management of all liquid, semisolid, solid, or gaseous waste defined
or identified as hazardous in KRS Chapter 224 or the appropriate regulations (401 KAR 30:010,401
KAR Chapter 31) by all persons and state and federal agencies who engage in the generation,
treatment, storage, or disposal of such wastes, including hazardous substances spilled into the
environment, thereby meeting the criteria of hazardous waste.
(1) The waste management regulations apply to all waste disposal sites or facilities with
the following exceptions:
(a) Domestic sewage and any mixture of domestic sewage and other wastes that pass
through a sewer system to a publicly-owned treatment works for treatment. (Note: these exemptions
do not apply to sludges generated by the treatment of domestic sewage.)
(b) Industrial wastewater discharges that are point source discharges subject to regulation
under Section 402 of the Clean Water Act, as amended through November 1988. (Note: these
exemptions do not apply to sludges generated by the treatment of industrial wastewater.)
(c) Solid or dissolved materials in irrigation return flows.
(d) Source special nuclear or by-product material as defined by the Atomic Energy Act,
as amended through September 1988.
(e) Materials subjected to in situ mining techniques which are not removed from the
ground as part of the extraction process.
(2) Any waste that is not excepted by subsection (1) of this section and that is identified
or listed under 401 KAR Chapter 31 is subject to the waste management regulations pertaining to
hazardous waste.
(3) Any waste which is not excepted by subsection (1) of this section or granted a
variance under the conditions of 401 KAR 30:080, or Sections 8 and 9 of 401 KAR 31:010, and
which is not subject to subsection (2) of this administrative regulation is subject to the waste
management regulations pertaining to solid waste except for:
401 KAR 30:020- 1
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(a) Agricultural wastes including manures and crop residues, returned to the soil as
fertilizers or soil conditioners.
(b) Overburden resulting from mining operations intended for return to the mine site and
coal mining wastes, refuse, overburden and coal mining by-products.
(c) The location and operation of septic tanks. These regulations do, however, apply to
the disposal of septic tank pumpings.
(d) Disposal of waste by underground well injection subject to the Underground Injection
Control Program (UICP) under the Safe Drinking Water Act, as amended through October 1988.
Section 2. Variance. A variance, except as provided in 401 KAR Chapter 38, is a
written waiver from any provision of the waste management regulations, upon the finding by the
Cabinet that the absence of such provision(s) shall provide adequate protection to health and the
environment in a manner consistent with the purpose of the waste management regulations and KRS
Chapter 224. Variances may be granted for recycling operations in accordance with the standards
contained in 401 KAR 30:080.
(1) The Cabinet may grant a variance or permit modification from the requirements of
the waste management regulations if a waste permit requirement, or the process and equipment used
is determined by the Cabinet to be either:
(a) Insignificant as a potential hazard to public health or the environment because of its
small quantity; low concentration; physical, biological, or chemical characteristics; or method of
operation used; or
(b) Handled, processed, or disposed of pursuant to regulations of another governmental
agency, providing the regulations of other agencies meet the requirements of the waste management
regulations, including federal exemption rule-making actions pertaining to hazardous waste
management.
(2) A request for variance from a requirement of the waste management regulations shall
be submitted in a report as prescribed by the Cabinet in sufficient detail to describe clearly the
analyses, procedures, controls, and other pertinent data necessary to support the request. The
granting of such a request by the Cabinet shall be in writing and shall specify appropriate conditions
such as duration, limitations, and review procedures.
(3) The Cabinet shall not grant any request for a variance which:
(a) Would make the hazardous waste program less stringent than the federal hazardous
waste management program; or
(b) Would be in conflict with Kentucky Revised Statutes; or
(c) Would be in conflict with a regulatory provision stating that no variance shall be
granted; or
(d) Would vary the requirements of 401 KAR 47:030; or
(e) Would vary the financial responsibility requirements in a manner conflicting with
Section 1 of 401 KAR 34:080 or Section 1 of
401 KAR 35:080.
Section 3. Compatibility with the Federal Acts. The regulations promulgated
pursuant to the waste management provisions of KRS Chapter 224 are intended to be compatible
401 KAR 30:020 - 2
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with federal regulations adopted pursuant to Public Law 94-580, the "Resource Conservation and
Recovery Act of 1976," as amended through November 1988.
Section 4. Conflicting Provisions. The provisions of the waste management
regulations are to be construed as being compatible with and complimentary to each other. In the
event that any of these regulations are found to be contradictory, the more stringent provisions shall
apply.
Section 5. Severability. In the event that any provision of KRS Chapter 224 or
any regulation promulgated pursuant thereto is found to be invalid, the remaining waste management
regulations in 401 KAR Chapters 30 through 49 shall not be affected or diminished thereby.
Section 6. Use of Number and Gender. As used in 401 KAR Chapters 30
through 49:
(1) Words in masculine gender also include the feminine and neuter genders; and
(2) Words in the singular include the plural; and
(3) Words in the plural include the singular.
Section 7. Applicability of Regulations.
(1) At the time of permit issuance, the applicable regulations shall be those waste
management regulations which are in effect upon the date of permit issuance except as provided in
401 KAR 47:080, Section 6(3).
(2) Unless otherwise provided in 401 KAR 47:080, Section 6(3), for permit
modifications, revocation and reissuance, or termination, the applicable regulations shall be those
regulatory provisions which are in effect upon the date that the Cabinet makes a final determination
(i.e., approval of a permit modification) upon the permit action and are applicable to those specific
permit conditions being modified or revoked and reissued. The procedures which shall be used for
permit modifications, revocation and reissuance, or termination shall be those regulatory procedures
which are in effect upon the date of the Cabinet's final determination.
Section 8. Availability of Information; Confidentiality of Information.
(1) Any information provided to the Cabinet under 401 KAR Chapters 30 through 49
shall be made available to the public to the extent and in the manner authorized by the Freedom of
Information Act (1966), as amended through November 1974, 5 U.S.C. section 552, KRS 224.10-
100 and 224.10-212 and Chapter 61 and 400 KAR 1:060 as applicable.
(2) Any person who submits information to the Cabinet in accordance with 401 KAR
Chapters 30 through 49 and 400 KAR 1:060 may assert a claim of business confidentiality or trade
secret covering part or all of that information by following the procedures set forth in 400 KAR
1:060. Information covered by such a claim shall be disclosed by the Cabinet only to the extent, and
by means of the procedures, set forth in 400 KAR 1:060 and KRS Chapter 61 except that
information required by Section 4(1) of 401 KAR 32:050 which is submitted in notification of intent
to export a hazardous waste shall be provided to the U.S. Department of State and the appropriate
authorities in a receiving country regardless of any claims of confidentiality. However, if no such
401 KAR 30:020-3
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claim accompanies the information when it is received by the Cabinet, it may be made available to
the public without further notice to the person submitting it.
Section 9. Compliance Deadlines. After promulgation of regulations under 401
KAR Chapter 31 identifying by its characteristics or listing any substance as hazardous waste subject
to the hazardous waste management regulations, any person generating or transporting such
substance or owning or operating a facility for treatment, storage, disposal or recycling of such
substance shall register with the Cabinet Such registration shall be filed within ninety (90) days after
promulgation or revision of the regulations unless another notification date is specified.
401 KAR 30:020-4
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Effective Date - March 12,1997
401 KAR 30:031. Environmental Performance Standards.
RELATES TO: KRS 224.01,224.10,224.40,224.43,224.46,224.50,224.70,224.99,
16 USC 1531 et. seq., 33 USC 1251 et. seq.
STATUTORY AUTHORITY: KRS 224.10-100,224.40-305
NECESSITY AND FUNCTION: KRS Chapter 224 requires the Cabinet to adopt
regulations for the treatment, storage, recycling and disposal of wastes. KRS 224.40-305 requires
that persons engaging in the treatment, storage, recycling and disposal of waste obtain a permit. This
chapter establishes the general administrative procedures that are applicable to 401 KAR Chapters
31 to 49. This administrative regulation sets forth the minimum environmental performance
standards with which all waste sites or facilities shall comply.
Section 1. Purpose, Scope and Applicability. The standards in this administrative
regulation are for use under the waste management provisions of KRS Chapter 224 in determining
which waste sites or facilities pose a reasonable probability of adverse effects on human health or
the environment. Waste sites or facilities failing to satisfy the requirements of this administrative
regulation shall be considered open dumps, which are prohibited by KRS 224.40-100. No owner or
operator shall cause, suffer, or allow a waste site or facility or any unit of a waste site or facility to
violate any provision of this administrative regulation.
Section 2. Floodplains. No waste site or facility shall restrict the flow of the 100-year
flood, reduce the temporary water storage capacity of the floodplain, or be placed in a manner likely
to result in washout of waste, so as to pose a hazard to human health, wildlife, or land or water
resources.
Section 3. Endangered Species. No waste site or facility shall:
(1) Cause or contribute to the taking of any endangered or threatened species or candidate
species listed pursuant to 16 USC 1531 et seq. (the Endangered Species Act of 1983 as amended);
or
(2) Result in the destruction or adverse modification of the critical habitat of an
endangered or threatened species or candidate species listed pursuant to 16 USC 1531 et seq. (the
Endangered Species Act of 1983 as amended).
Section 4. Surface Waters. No waste site or facility shall:
(1) Cause a discharge of pollutants into waters of the Commonwealth, including
wetlands, that violate any requirements of KRS Chapter 224, or the surface water standards of 401
KAR Chapter 5 or 8; or
401 KAR 30:031 - 1
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(2) Cause a discharge of dredged material or fill material to waters of the Commonwealth
that is in violation of the requirements under 33 USC 1251 et. seq. (Section 404 of the Clean Water
Act of 1977 as amended).
Section 5. Groundwater. No waste site or facility shall contaminate an
underground drinking water source beyond the point of compliance in excess of the maximum
contaminant levels specified in 401 KAR Chapter 8.
Section 6. Application to Land Use for the Production of Food Chain Crops. No
waste site or facility shall exist or occur that applies waste within three (3) feet of the surface of land
used for the production of food chain crops unless in compliance with all the requirements of
subsection (1) or (2) of this section:
(1 )(a) The pH of the waste and soil mixture is six and five-tenths (6.5) or greater at the time
of each waste application, except for waste containing cadmium at concentrations of two (2) mg/kg
(dry weight) or less;
(b) The annual application of cadmium from waste does not exceed 0.44 pounds per acre
on land used for production of tobacco or food chain crops. The annual cadmium application rate
does not exceed 0.44 pounds per acre; and
(c) The maximum cumulative application of cadmium from the waste does not exceed
the levels in Table 1 of this paragraph.
Table 1
Maximum cumulative application
Soil Cation
Background
Pounds/per/
Exchange
Soil pH
Acre
Capacity

(meq/lOOg)

<5
>6.5
4.46
5-15
>6.5
8.92
>15
>6.5
17.84
>15
<6.5* 4.46

*For soils with a background pH of less than six and five-tenths (6.5), the maximum cumulative
cadmium applications rate for soils with a background pH equal to or greater than six and five-tenths
(6.5) may be used if the pH of the sludge-soil mixture is adjusted to and maintained at six and
five-tenths (6.5) or greater whenever food chain crops are grown.
(2) If animal feed is the only food chain crop produced, there is no limit to the cadmium
application rate, as long as the pH of sludge and soil mixture is six and five-tenths (6.5) or greater
at the time of sludge application or at the time the crop is planted, whichever occurs later, and this
pH level is maintained whenever food chain crops are grown. A plan shall also be developed that
401 KAR 30:031 -2
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demonstrates how the animal feed shall be distributed to preclude human ingestion, and the measures
to be taken to safeguard against possible health hazards from cadmium entering the food chain,
which may result from alternative land uses. Future property owners shall also be notified by a
stipulation in the land record or property deed that states that the property received sludge at high
cadmium application rates and that food chain crops, except for animal feed, shall not be grown due
to possible health hazards.
Section 7. Polychlorinated Biphenyls. No waste site or facility shall exist or
occur that places waste containing concentrations of polychlorinated biphenyls (PCBs) equal to or
greater than one (1) mg/kg (dry weight) on the land. However, residual landfills may dispose of
PCBs in accordance with their permit, and special waste and contained landfills may dispose of
wastes containing PCBs equal to forty-nine (49) mg/kg (dry weight) or less.
Section 8. Disease.
(1) Disease vectors. No waste site or facility shall exist or occur unless the on-site
population of disease vectors is prevented or controlled through the periodic application of cover
material or other techniques as appropriate to protect human health and the environment.
(2) Sewage sludge and septic tank pumpings. No waste site or facility shall exist or occur
that applies sewage sludge or septic tank pumpings within three (3) feet of the surface of the land
unless a process to significantly reduce pathogens has been utilized.
Section 9. Air.
(1) No waste site or facility shall engage in open burning of wastes. This requirement
does not apply to infrequent burning of agricultural wastes in the field, silvicultural wastes for forest
management purposes, land-clearing debris, diseased trees, debris from emergency cleanup
operations, or ordinance.
(2) No waste site or facility shall violate applicable air pollution requirements contained
in KRS Chapter 224 or 401 KAR Chapters 50 to 63.
Section 10. Safety.
(1) Explosive gases. No waste site or facility shall allow the concentration of explosive
gases generated by the facility to exceed:
(a) Twenty-five (25) percent of the lower explosive limit for the gases in facility
structures, excluding gas control or recovery system components; and
(b) The lower explosive limit for the gases at the facility property boundary.
(2) Fires. No waste site or facility shall pose a hazard to the safety of persons or property
from fires. This may be accomplished through compliance with Section 9 of this administrative
regulation and this section, through the periodic application of cover material or other techniques
as appropriate.
(3) Access. No waste site or facility shall allow uncontrolled public access, unauthorized
vehicular traffic, or illegal dumping of wastes. This requirement to ensure protection of human
health and the environment may be met by using artificial barriers, natural barriers, or other methods
as appropriate.
401 KAR 30:031 -3
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Section 11. Public Nuisance. No waste site or facility shall result in a public
nuisance because of blowing litter, debris, or other waste or material.
Section 12. Wetlands. No new or expanded waste site or facility shall be located in
wetlands.
Section 13. Karst. No waste site or facility shall allow contamination of karst
terrain.
Section 14. Compliance. No waste site or facility shall violate any requirement of KRS
Chapter 224 or regulations promulgated pursuant thereto.
401 KAR 30:031 -4
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Effective Date - March 12,1997
401 KAR 30:040. Transfer of Regulatory Responsibility.
RELATES TO: KRS 224.10,224.40,224.43
STATUTORY AUTHORITY: KRS 224.10-100(24)
NECESSITY AND FUNCTION: KRS 224.10-100 and the waste management provisions
of KRS Chapter 224 require the Cabinet to adopt rules and regulations for the management of solid
and hazardous wastes. This chapter establishes the general administrative procedures which are
applicable to 401 KAR Chapters 31 through 49. This administrative.regulations transfers regulatory
responsibility for coal mining solid waste to the Department for Surface Mining Reclamation and
Enforcement.
Section 1. Regulatory Authority. As provided in KRS 224.50-760(1 )(c), coal
mining wastes as defined in 401 KAR 30:005 are to be regulated under KRS Chapter 350. Coal
mining solid wastes as defined in Section 1 (4) of 401 KAR 30:005 are regulated under KRS Chapter
224, as provided by KRS 224.40-100.
Section 2. Transfer of Responsibility. The Cabinet is transferring the regulatory
responsibility for coal mining solid waste disposal, which is subject to waste management
regulations, to the Department for Surface Mining Reclamation and Enforcement at sites regulated
under KRS Chapter 350. Coal mining solid waste may be disposed of in the areas regulated under
KRS Chapter 350 and is exempt from the permit requirements in 401 KAR 47:020 provided that:
(1) No hazardous waste is placed, stored, treated, disposed or otherwise managed under
the provisions of this section; and
(2) The general requirements of KRS Chapter 224 are maintained.
Section 3. Variance and Termination. This transfer of regulatory responsibility
includes the regulatoiy authority in 401 KAR 47:040, Section 1, to request information from the
applicant, and the regulatory authority to grant a variance pursuant to 401 KAR 30:020, Section 2.
This transfer of regulatory responsibility may be terminated by the Cabinet at an individual mining
site when any of the provisions of Section 2 of this administrative regulation are violated, and the
Department for Environmental Protection will reassume full regulatory responsibility for the
individual site at such time.
401 KAR 30:040 - 1
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Effective Date - March 10,1988
401 KAR 30:070. Reference Documents.
RELATES TO: KRS 224.01,224.10,224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY AND FUNCTION: KRS 224.10-100 and the waste management provisions
of KRS Chapter 224 require the Natural Resources and Environmental Protection Cabinet to
promulgate regulations for the management of solid and hazardous wastes. This chapter establishes
the general administrative procedures which are applicable to 401 KAR Chapters 30 through 49.
This regulation incorporates by reference as provided under 1 KAR 1:010 essential documents used
in connection with the waste management regulations.
Section 1. Documents Incorporated by Reference. The documents listed in
subsections (1) through (8) of this section are adopted and filed herein by reference. Copies of these
documents may be obtained from the Natural Resources and Environmental Protection Cabinet,
Department for Environmental Protection, Division of Waste Management, 18 Reilly Road,
Frankfort, Kentucky 40601.
(1) Waste Management Policy I.2.a., "Closure of Permitted Solid Waste Sites," (July 29,
1983).
(2) Waste Management Policy IV. 1.a., "Sampling Procedure -splitting Samples,"
(September 15, 1983).
(3) Waste Management Policy Vl.l.b., "Regulatory Interpretation: Sham Recycling,"
(November 8,1985).
(4) Waste Management Policy Vl.l.d., "Regulatory Interpretation: EPA Guidance on
K061 Listing," (April 6,1984).
(5) Waste Management Policy VI.I.e., "Regulatory Interpretation: Plating Waste
Generators," (April 6, 1984).
(6) Waste Management Policy Vl.l.f. (AMENDMENT), "Regulatory Interpretation:
Empty Containers," (July 9, 1984).
(7) Waste Management Policy VI. 1 .g. "Regulatory Interpretation: The Scope of the F006
Hazardous Waste Listing," (December 14,1987). This policy incorporates the December 2, 1986
(51 FR 43350-43351) Interpretive Rule adopted by the U.S. Environmental Protection Agency which
narrows the scope of the F006 waste listing.
401 KAR 30:070 - 1
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Effective Date - March 12,1997
401 KAR 30:080. Standards for Variances.
RELATES TO: KRS 224.10, 224.43,224.99
STATUTORY AUTHORITY: KRS 10-100, 224.40-310,224.46-530
NECESSITY AND FUNCTION: KRS 224.10-100 and the waste management provisions
of KRS Chapter 224 require the Cabinet to adopt rules and regulations for the generation, treatment,
storage, recycling and disposal of hazardous wastes and the disposal of solid wastes. KRS 224.46-
530 authorizes the Cabinet to exclude a waste generated at a particular facility from being regulated
as a hazardous waste and to regulate production, burning and transportation of hazardous waste
derived fuels. This chapter establishes the general administrative procedures which are applicable
to 401 KAR Chapters 31 through 49. This administrative regulation sets forth standards and
procedures which enable a recycled material to be granted a variance from classification as a waste,
and an enclosed-flame device to be classified as a boiler or an industrial furnace.
Section 1. Types of Variances.
(1) As referenced in the waste management regulations, a variance is a written waiver
from a specific regulatory requirement issued by the Cabinet. A variance must be requested in
writing and must include all appropriate information required by the Cabinet. All variances issued
by the Cabinet are subject to the conditions specified in the approved variance.
(2) Individual types of variances are specified in this administrative regulation, in Section
2 of 401 KAR 30:020, and in Sections 8 and 9 of 401 KAR 31:010.
Section 2. Variances from Classification as a Waste. In accordance with the
standards and criteria in Section 3 of this administrative regulation and the procedures in Section 6
of this administrative regulation and Section 2 of 401 KAR 30:020, the Cabinet may determine on
a case-by-case basis that the following recycled materials are not wastes:
(1) Materials that are accumulated speculatively without sufficient amounts being
recycled; or
(2) Materials that are reclaimed and then reused within the original production process
in which they were generated; or
(3) Materials that have been reclaimed but must be reclaimed further before the materials
are completely recovered.
Section 3. Standards and Criteria for Variances from Classification as a Waste.
(1) The Cabinet may grant requests for a variance from classifying as a waste those
materials that are accumulated speculatively without sufficient amounts being recycled if the
applicant demonstrates that sufficient amounts of the material will be recycled or transferred for
recycling in the following year. If a variance is granted, it is valid only for the following year,
401 KAR 30:080 - 1
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but can be renewed on an annual basis by filing a new application. The Cabinet's decision will be
based on the following criteria:
(a) The manner in which the material is expected to be recycled, when the material is
expected to be recycled, and whether this expected disposition is likely to occur (for example,
because of past practice, market factors, the nature of the material, or contractual arrangements for
recycling);
(b) The reason that the applicant has accumulated the material for one (1) or more years
without recycling seventy-five (75) percent of the volume accumulated at the beginning of the year;
(c) The quantity of material already accumulated and the quantity expected to be
generated and accumulated before the material is recycled;
(d) The extent to which the material is handled to minimize loss; and
(e) Other relevant factors.
(2) The Cabinet may grant requests for a variance from classifying as a waste those
materials that are reclaimed and then reused as feedstock within the original production process in
which the materials were generated if the reclamation operation is an essential part of the production
process. This determination will be based on the following criteria:
(a) How economically viable the production process would be if it were to use virgin
materials rather than reclaimed materials;
(b) The prevalence of the practice on an industry-wide basis;
(c) The extent to which the material is handled before reclamation to minimize loss;
(d) The time periods between generating the material and its reclamation and between
reclamation and return to the original primary production process;
(e) The location of the reclamation operation in relation to the production process;
(f) Whether the reclaimed material is used for the purpose for which it was originally
produced when it is returned to the original process and whether it is returned to the process in
substantially its original form;
(g) Whether the person who generates the material also reclaims it; and
(h) Other relevant factors,
(3) The Cabinet may grant requests for a variance from classifying as a waste those
materials that have been reclaimed but must be reclaimed further before recovery is completed if,
after initial reclamation, the resulting material is commodity-like (even though it is not yet a
commercial product, and has to be reclaimed further). This determination will be based oh the
following factors:
(a) The degree of processing the material has undergone and the degree of further
processing that is required;
(b) The value of the material after is has been reclaimed;
(c) The degree to which the reclaimed material is like an analogous raw material;
(d) The extent to which an end market for the reclaimed material is guaranteed;
(e) The extent to which the reclaimed material is handled to minimize loss; and
(f) Other relevant factors.
Section 4. Variance to be Classified as a Boiler. In accordance with the standards
and criteria in Section 1 of 401 KAR 30:005, and the procedures in Section 6 of this administrative
401 KAR 30:080 - 2
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regulation, the Cabinet may determine on a case-by-case basis that certain enclosed devises using
controlled flame combustion are boilers, even though they do not otherwise meet the definition of
boiler contained in Section 1 of 401 KAR 30:005 after considering the following criteria:
(1) The extent to which the unit has provisions for recovering and exporting thermal
energy in the form of steam, heated fluids, or heated gases;
(2) The extent to which the combustion chamber and energy recovery equipment are of
integral design;
(3) The efficiency of energy recovery, calculated in terms of the recovered energy
compared with the thermal value of the fuel;
(4) The extent to which exported energy is utilized;
(5) The extent to which the device is in common and customary use as a "boiler"
functioning primarily to produce steam, heated fluids, or heated gases; and
(6) Other factors as appropriate.
Section 5. Variance to be Classified as an Industrial Furnace. In accordance
with the standards and criteria in Section 1 of 401 KAR 30:005 (definition of "industrial furnace"),
and the procedures in Section 6 of this administrative regulation the Cabinet may determine on a
case-by-case basis that certain enclosed devices using controlled flame combustion are industrial
furnaces, even though they do not otherwise meet the definition of industrial furnace contained in
Section 1 of 401 KAR 30:005 after considering the following criteria:
(1) The design and use of the device primarily to accomplish recovery of material
products;
(2) The use of the device to burn or reduce raw materials to make a material product;
(3) The use of the device to burn or reduce secondary materials as effective substitutes
for raw materials, in processes using raw materials as principal feedstocks;
(4) The use of the device to burn or reduce secondary materials as ingredients in an
industrial process to make a material product;
(5) The use of the device in common industrial practice to produce a material product;
and
(6) Other factors, as appropriate.
Section 6. Procedures for Variances from Classification as a Waste or to be
Classified as a Boiler or an Industrial Furnace. The Cabinet will use the following procedures
in evaluating applications for variances from classification as a waste or applications to classify
particular enclosed controlled flame combustion devices as boilers or industrial furnaces:
(1) For applicants requesting a variance under Section 1 of this administrative regulation
from classification as a waste:
(a) The applicant must apply to the Cabinet; and
(b) The application must address the relevant criteria contained in Section 3,4, or 5 of
this administrative regulation.
401 KAR 30:080- 3
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(2) For persons requesting a variance for classifying a particular controlled enclosed
flame combustion device as a boiler or an industrial furnace:
(a) The applicant must apply to the Cabinet; and
(b) The application must address the relevant criteria contained in Sections 4 and 5 of this
administrative regulation.
(3) The Cabinet will evaluate the application and issue a draft notice tentatively granting
or denying the application. Notification of this tentative decision will be provided by newspaper
advertisement or radio broadcast in the locality where the recycler is located. The Cabinet will accept
comment on the tentative decision for thirty (30) days and may also hold a public hearing upon
request or at its discretion. The Cabinet will issue a decision after receipt of comments and after the
hearing, if any.
401 KAR 30:080 - 4
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TITLE 401
NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET
DEPARTMENT FOR ENVIRONMENTAL PROTECTION
DIVISION OF WASTE MANAGEMENT
Chapter 40
WASTE MANAGEMENT - ENFORCEMENT AND COMPLIANCE MONITORING
401
KAR 40:001
Definitions Related to 401 KAR Chapter 40
401
KAR 40:010
General Enforcement Provisions
401
KAR 40:020
Inspections
401
KAR 40:030
Hearings
401
KAR 40:040
Remedies
401
KAR 40:050
Penalties
401
KAR 40:060
County Enforcement Representatives
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Effective Date - March 12, 199"1
401 KAR 40:001. Definitions Related to 401 KAR Chapter 40
RELATES TO: KRS 224.01,224.10, 224.40,224.43, 224.46, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100,224.46-520,224.46-530, 224.99-010
NECESSITY AND FUNCTION: This chapter establishes standards for enforcement and
compliance monitoring of hazardous waste and solid waste management and practices. This
administrative regulation defines essential terms that are used in this chapter.
Section 1. Definitions. Unless otherwise specifically defined in KRS Chapter 224 or
otherwise specifically indicated by context, terms in 401 KAR Chapter 40 shall have the meanings
given in this Section.
(1) "Cabinet" shall have the meaning specified in KRS 224.01-010.
(2) "Contamination" means the degradation of naturally occurring water, air, or soil
quality either directly or indirectly as a result of human activities.
(3) "Hazardous waste" shall have the meaning specified in KRS 224.01-010.
(4) "Operator" means any person responsible for overall operation of an on-site or off-site
waste facility, including any private contractor conducting operational activities at a federal facility.
(5) "Owner" means any person who owns an on-site or off-site waste facility, or any part
of a facility.
(6) "Permittee" means any person holding a valid permit issued by the Cabinet to
manage, treat, store, or dispose of waste.
(7) "Person" shall have the meaning specified in KRS 224.01-010.
(8) "Secretary" shall have the meaning specified in KRS 224.01-010.
(9) "Solid waste" shall have the same meaning as KRS 224.01-010.
Section 2. Acronyms and Abbreviations. Unless otherwise specifically indicated
by context, acronyms and abbreviations used in 401 KAR Chapter 40 shall have the meaning as
identified in Table 1 of this administrative regulation.
Table 1. Acronyms and Abbreviations
KAR Kentucky Administrative Regulation
KRS Kentucky Revised Statute
401 KAR 40:001 - 1
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Effective Date - December 2, 1983
401 KAR 40:010. General Enforcement Provisions.
RELATES TO: KRS 224.10, 224.46, 224.99
STATUTORY AUTHORITY: KRS 224.46-520
NECESSITY AND FUNCTION: KRS 224.10-100 requires the cabinet to inspect any
property or premises for the purpose of investigating either actual or suspected sources of
pollution or contamination or for the purpose of ascertaining compliance or noncompliance with
KRS Chapter 224 or the regulations promulgated pursuant thereto. KRS 224.99-010 permits the
Natural Resources and Environmental Protection Cabinet to assess civil and criminal penalties
against any person who fails to perform any duties imposed by KRS Chapter 224, the regulations
promulgated pursuant to KRS Chapter 224 or any determination or order of the cabinet. This
chapter establishes standards for enforcement and compliance monitoring of hazardous waste and
solid waste management and practices. The enforcement and compliance monitoring standards of
this chapter are for those activities and hazardous waste and solid waste sites or facilities regulated
pursuant to 401 KAR Chapters 30 through 47. This regulation establishes general enforcement
provisions for the hazardous waste management regulations.
Section 1. Enforcement. The requirements of 401 KAR Chapters 30 through
47 shall be enforced by the secretary or any duly authorized representative of the cabinet.
Enforcement of these requirements shall be in accordance with the provisions of this chapter and
KRS Chapter 224 to the extent such provisions provide fair and orderly fulfillment of the duties
and powers of the secretary and the Natural Resources and Environmental Protection Cabinet.
This chapter, however, shall in no way limit or prevent the secretary or the Natural Resources and
Environmental Protection Cabinet from exercising any power or authority granted or vested it by
the laws of the Commonwealth.
Section 2. Inspection. In accordance with the provisions of this chapter, the cabinet
shall conduct or cause to be conducted such inspections, studies, investigations or other
determinations as it deems reasonable and necessary to obtain information and evidence with
which to ensure that waste management and disposal practices are conducted in accordance with
the provisions of KRS Chapter 224, 401 KAR Chapters 30 through 40, all terms and conditions
of a permit, and any order of the secretary.
Section 3. Compliance. It shall be the duty of any person affected by the
provisions of KRS Chapter 224,401 KAR Chapters 30 through 47, any condition of a permit or
order of the secretary pertaining to hazardous or solid waste management or disposal activities to
demonstrate compliance with any such provision, condition or order. Failure or inability to
demonstrate compliance may be presumed by the secretary or any duly authorized representative
of the cabinet to mean such person has not complied with that provision, condition or order for
the purpose of proceeding with any action contemplated by this chapter.
401 KAR 40:010 - 1
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Effective Date - December 2,1983
401 KAR 40:020. Inspections.
RELATES TO: KRS 224.10, 224.46, 224.99
STATUTORY AUTHORITY: KRS 224.46-520
NECESSITY AND FUNCTION: KRS 224.10-100 requires the cabinet to inspect any
property or premises for the purpose of investigating either actual or suspected sources of
pollution or contamination or for the purpose of ascertaining compliance or noncompliance with
KRS Chapter 224 or the regulations promulgated pursuant thereto. This chapter establishes stan-
dards for enforcement and compliance monitoring of hazardous waste. The enforcement and
compliance monitoring standards of this chapter are for those activities and hazardous waste sites
or facilities regulated pursuant to 401 KAR Chapters 30 through 47. This regulation establishes
standards for inspections and notification of deficiencies.
Section 1. Inspections. In accordance with the provisions of this chapter, the cabinet
shall conduct or cause to be conducted such inspections, studies, investigations or other
determinations as it deems reasonable and necessary to obtain information and evidence with
which to ensure that solid waste and hazardous waste sites or facilities are conducted in
accordance with the provisions of KRS Chapter 224, 401 KAR Chapters 30 through 47, and all
terms and conditions of any permit.
(1) The secretary or any duly authorized representative of the cabinet upon presentation
of proper identification and authority may:
(a) Enter any premises registered to generate hazardous waste, any permitted hazardous
waste facility, any permitted solid waste facility or any premises or facility that the cabinet has
reasonable cause to believe is generating hazardous waste or constitutes an unpermitted solid or
hazardous waste facility, inspect the premises, and gather evidence on existing conditions and
procedures;
(b) Obtain from any permittee, or from any permitted or unpermitted premises,
representative samples of waste or any material believed to be polluting or contaminating the
environment;
(c) Conduct tests, analyses and evaluations to determine whether the requirements ot
the waste management regulations and KRS Chapter 224 are being met;
(d) Obtain samples of any containers and photographs or facsimiles of container labels;
(e) In the event that any samples are obtained prior to leaving the premises, a receipt
describing the samples obtained shall be given to the owner, operator, or agency in charge and
if requested, a portion of each such sample equal in volume or weight to the portion retained. A
copy of the results shall be furnished to the owner, operator or agency in charge if an analysis is
made.
(f) Inspect and copy any pertinent records, reports, information or test results relating
to the requirements of 401 KAR Chapters 30 through 47;
401 KAR 40:020 - 1
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(g) Question any person found on the premises, including employees or agents of the
owner, operator or agency in charge of the premises, concerning their duties, responsibilities, past
activities or any other matter relating to the requirements of 401 KAR Chapters 30 through 47;
and
(h) Enter and inspect any other premises in accordance with the requirements of KRS
224.033(10).
(2)(a) A report listing any deficiencies found during the inspection shall be prepared by
the inspector and shall be kept on file in the cabinet. A copy of the report shall be provided to the
owner or operator or his agent immediately upon completion of the inspection when the owner
or operator is present during the inspection. Otherwise a copy of the report shall be mailed to the
owner or operator, or his agent, at the address specified on the registration, permit application or
other document supplied to the cabinet by the owner or operator, or, when applicable, to the
address of the unauthorized owner or operator when his identity and address is discovered.
(b) Authorized representatives of the cabinet shall make and maintain written records
of inspections and other activities including observations made and factual matters discovered. A
copy of such record shall be made available to the owner or operator and shall be available for
public inspection at the main office of the Division of Waste Management in accordance with the
Kentucky Open Records Law, KRS 61.870 through KRS 61.884.
(c) Upon inspection of a facility, authorized representatives of the cabinet shall collect
evidence of every observed violation of a permit condition or requirement of KRS Chapter 224
or regulations promulgated pursuant thereto.
(d) The cabinet shall preserve collected evidence, where appropriate, in order that such
evidence may be presented at hearings held pursuant to 401 KAR 40:030.
Section 2. Timing and Conduct of Inspections.
(1) Right of entry and access. Authorized representatives of the cabinet shall have
unrestricted right of entry and access to all parts of the permit area for any purpose associated
with their proper duties pursuant to KRS Chapter 224 and 401 KAR Chapters 30 through 47,
including but not limited to the purpose of making inspections.
(2) Presentation of credentials. Authorized representatives of the cabinet shall present
credentials for identification purposes upon request by a representative of the owner or operator.
(3) Prior notice. The cabinet shall have no obligation to give prior notice that an
inspection will be conducted.
(4) Timing. Inspections shall ordinarily be conducted at irregular and unscheduled
times during normal workdays, but may be conducted at night or on weekends or holidays when
the department deems such inspections necessary to properly monitor compliance with KRS
Chapter 224, 401 KAR Chapters 30 through 47, and conditions of the permit. It shall be the
responsibility of the owner or operator to notify the cabinet at least five (S) working days prior
to crucial phases of the facility construction. Crucial phases of facility construction include, but
are not necessarily limited to, liner installation, well drilling leachate collection system
installation, and any other phase of construction identified in the conditions of the permit.
401 KAR 40:020 - 2
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Section 3. Deficiencies. The cabinet shall notify the owner or operator of any
noncompliance with the requirements of KRS Chapter 224, 401 KAR Chapters 30 through 47,
with guidelines adopted pursuant thereto, or with conditions of the permit by utilizing one (1) of
the means described in this section.
(1) The inspection report shall serve as notice to the owner or operator that a
deficiency has occurred. The inspection report may list a date on which the owner or operator (or
his agent) can reasonably be expected to correct the deficiency.
(2) The secretary or any duly authorized representative of the cabinet, upon
determining that a violation of any requirement of 401 KAR Chapters 30 through 47; KRS
Chapter 224, a permit condition or order of the secretary has occurred or is occurring may require
the owner or operator to submit to the cabinet a plan of correction to be implemented within a
time acceptable to the cabinet.
(3) If the owner/operator fails to accomplish an agreed upon step in the plan of
correction within the time period specified, or correct a deficiency by a reasonable correction date
set by the inspector as provided in subsection (1) of this section, the secretary may take action to
modify, suspend, discontinue, or revoke the owner or operator's permit(s), or seek any other
remedy provided in 401 KAR 40:040.
(4) The supervisor of any regional field office maintained by the Division of Waste
Management may hold field office conferences with the owner or operator (or his agent) of a site
or facility affected by the requirements of 401 KAR Chapters 30 through 47 or the provisions of
KRS Chapter 224 dealing with waste management or disposal practices, for the purpose of
determining a reasonable date for correcting a deficiency discovered by inspection and handled
according to subsection (l)(b) of this section. The exact nature of the violations discussed during
the conference and the dates for correcting those violations shall be set out in writing and signed
by the inspector, the field office supervisor and the owner, operator or agent attending the
conference if the parties attending the conference reach an agreement as to correction dates. This
document shall then become a permit condition of the owner or operator's permit or
permit-by-rule.
401 KAR 40:020 -3
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Effective Date - December 2,1983
401 KAR 40:030. Hearings.
RELATES TO: KRS 224.10, 224.46, 224.99
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY AND FUNCTION: KRS 224.10-100 requires the cabinet to inspect any
property or premises for the purpose of investigating either actual or suspected sources of
pollution or contamination or for the purpose of ascertaining compliance or noncompliance with
KRS Chapter 224 or the regulations promulgated pursuant thereto. KRS 224.99-010 permits the
cabinet to assess civil and criminal penalties against any person who fails to perform any duties
imposed by KRS Chapter 224, the regulations promulgated pursuant to KRS Chapter 224, or any
determination or order of the cabinet. KRS 224.10-100 authorizes the cabinet to hold hearings.
This chapter establishes standards for enforcement and compliance monitoring of hazardous waste
and solid waste management and practices. The enforcement and compliance monitoring standards
of this chapter are for those activities and hazardous waste and solid waste sites or facilities
regulated pursuant to 401 KAR Chapters 30 through 47. This regulation establishes the hearing
procedures.
Section 1. Request for Hearings. Except for special hearings pursuant to KRS
224.10-410, any person or state or federal agency aggrieved by the actions of the cabinet may by
written notice request that a hearing be conducted by the cabinet. The right to demand such a
hearing shall be limited to a period of thirty (30) days after the applicant has had actual notice of
the action, or could reasonably have had such notice. Unless the request is frivolous, the cabinet
shall schedule a hearing before the cabinet not less than twenty-one (21) days after notice of
demand for such a hearing, unless the person complained against waives in writing the twenty-one
(21) day period. The notice of hearing shall include a statement of the time, place, and nature of
the hearing; the legal authority for the hearing; reference to the statutes and regulations involved;
and a short statement of the reason for the granting of the hearing.
Section 2. Prehearing Conference. Prior to the formal hearing, and upon seven
(7) days written notice to all parties, delivered personally or by certified mail with return receipt
requested, the hearing officer may hold a prehearing conference to consider simplification of the
issues, admissions of fact and documents which will avoid unnecessary proof, limitations of the
number of witnesses and such other matters as will aid in the disposition of the matter. Disposition
of the matter may be made at the prehearing conference by stipulation, agreed settlement, consent
order, or default for nonappearance.
Section 3. Administrative Hearing Procedure.
(1) Any party to a hearing may be represented by counsel, may make oral or written
argument, offer testimony, cross-examine witnesses, or take any combination of such actions. A
401 KAR 40:030- 1
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hearing officer shall preside at the hearing in accordance with reasonable administrative practice.
(2) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. When
necessary to ascertain facts not reasonably susceptible of proof under judicial rules of evidence,
evidence not admissible thereunder may be admitted (except where precluded by statute) if it is
of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.
Hearing officers shall give effect to the rules of privilege recognized by law. Objections to
evidentiary offers may be made and shall be noted in the record. Subject to these requirements,
when a hearing will be expedited and the interests of the parties will not be prejudiced
substantially, any part of the evidence may be received in written form. Documentary evidence
may be received in the form of copies or excerpts if the original is not readily available. Upon
request, parties shall be given an opportunity to compare the copy with the original. A party may
conduct cross-examinations required for a full and true disclosure of the facts. Notice may be
taken of generally recognized technical or scientific facts within the cabinet's specialized
knowledge. Parties shall be notified either before or during the hearing, or by reference in
preliminary reports or otherwise, of the material noticed, including any staff memoranda or data
and they shall be afforded an opportunity to contest the material so noticed. The cabinet's
experience, technical competence, and specialized knowledge may be utilized in the evaluation
of the evidence.
(3) It will be within the hearing officer's discretion to require official transcripts or to
set up other procedures of taking evidence, including but not limited to the use of mechanical
recording devices for recording the testimony. The record of such hearing, consisting of all
pleadings, motions, rulings, documentary and physical evidence received or considered, a
statement of matters officially noticed, questions and offers of proof, objections and rulings
thereon, proposed findings and recommended order, and legal briefs, shall be open to public
inspection and copies thereof shall be made available to any person upon completion of the
hearing process upon payment of the actual cost of reproducing the original except as provided
in KRS 224.10-210 or 224.10-212. The cabinet may cause the mechanical recording of the
testimony to be transcribed. When certified as a true and correct copy of the testimony by the
hearing officer, the transcript shall constitute the official transcript of the evidence.
(4) The hearing officer shall* within thirty (30) days of the closing of the hearing
record, make a report and a recommended order to the secretary. The order shall contain the
appropriate findings of fact and conclusions of law. If the secretary finds upon written request of
the hearing officer that additional time is needed, then the secretary may grant a reasonable
extension. The hearing officer shall serve a copy of his report and recommended order upon all
parties. The parties may file within seven (7) days of service of the hearing officer's report and
recommended order exceptions to the recommended order. The secretary shall consider the report
and recommended order and exceptions. The secretary may remand to the hearing officer the
matter for further deliberation, adopt the Opinion of the hearing officer and the cabinet or issue
his own written order based on the report and recommended order.
(5) After completion of the hearing and filing of exceptions, the cabinet shall notify
the applicant in writing, certified mail with return receipt requested, of the final decision of the
cabinet. If any extension of time is granted by the secretary for a hearing officer to complete his
report, the cabinet shall notify all parties at the time of the granting of the extension.
401 KAR 40:030 - 2
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(6) The secretary shall not grant extensions of time to the hearing officer for more than
thirty (30) days for any one (1) extension, and no more than two (2) such extensions shall be
granted.
(7) A final order of the cabinet shall be based on substantial evidence appearing in the
record as a whole and shall set forth the decision of the cabinet and the facts and law upon which
the decision is based.
(8) There shall be no ex parte communications between a hearing officer and parties
to the action.
(9) Any person aggrieved by a final order of the cabinet may have recourse to the
courts as set forth in KRS 224.10-470.
401 KAR 40:030 - 3
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Effective Date - December 2,1983
401 KAR 40:040. Remedies.
RELATES TO: KRS 224.10, 224.46, 224.99
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY AND FUNCTION: KRS 224.10-100 requires the cabinet to inspect any
property or premises for the purpose of investigating either actual or suspected sources of
pollution or contamination or for the purpose of ascertaining compliance or noncompliance with
KRS Chapter 224 or the regulations promulgated pursuant thereto. KRS 224.99-010 permits the
cabinet to assess civil and criminal penalties against any person who fails to perform any duties
imposed by KRS Chapter 224, the regulations promulgated pursuant to KRS Chapter 224, or any
determination or order of the cabinet. This chapter establishes standards for enforcement and
compliance monitoring of hazardous waste and solid waste management and practices. The
enforcement and compliance monitoring standards of this chapter are for those activities and
hazardous waste and solid waste sites or facilities regulated pursuant to 401 KAR Chapters 30
through 47. This regulation establishes remedies for solid waste and
hazardous waste violations.
Section 1. Modification, Suspension and Revocation of a Permit. The cabinet may
modify, suspend or revoke a permit issued under 401 KAR Chapters 30 through 47 for:
(1) Violation of any requirement of KRS Chapter 224 or the respective regulations
promulgated pursuant thereto.
(2) Aiding, abetting or permitting the violation of any provisions of 401 KAR Chapters
30 through 47.
(3) Any action or omission associated with maintenance and operation of the facility
that could or does create a threat to public health or the environment.
(4) Violations of a condition or a variance of the hazardous waste site or facility permit
or a solid waste site or facility permit.
(5) Misrepresentation or omission of a significant fact by the operator either in the
application for the permit or in information subsequently reported to the cabinet.
(6) Failure to comply with an order issued by the cabinet.
Section 2. Order for Discontinuance, Abatement, or Alleviation. The secretary
may, when he finds after investigation that it would be prejudicial to the interests of the people
of the state to delay action, issue an order for discontinuance, abatement, or alleviation of a
condition or activity without prior hearing as provided in KRS 224.10-410.
Section 3. Discontinuance of a Permit.
(1) The secretary may order the discontinuance of a permit prior to any hearing when
he determines such action is necessary to protect public health and safety and the environment
401 KAR 40:040 - 1
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from imminent danger.
(2) The secretary, or his authorized designee, shall notify the owner or operator of the
hazardous waste site or facility or of the solid waste site or facility of the discontinuance and the
effective date thereof and, at the same time, shall provide the owner or operator with an
explanation for the basis of the discontinuance.
(3) The owner or operator shall take prompt action to correct the deficiencies cited by
the cabinet.
(4) The suspension shall remain in effect until the deficiencies are corrected to the
satisfaction of the cabinet or until the cabinet makes a final determination based on the outcome
of a hearing held in accordance with the requirements of KRS 224.10-410. The determination may
result in termination of the order, suspension, or modification of the permit, or revocation of the
permit.
Section 4. Petition for Reinstatement. An owner or operator whose permit
has been suspended or revoked may petition the cabinet for reinstatement after thirty (30) days
or more have elapsed from the effective date of the suspension or revocation or from the date of
the denial of a similar petition or immediately after the conditions of Section 3(4) of this
regulation have been met.
401 KAR 40:040 - 2
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Effective Date - December 2, 1983
401 KAR 40:050. Penalties.
RELATES TO: KRS 224.10, 224.46, 224.99
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY AND FUNCTION: KRS 224.99-010 permits the cabinet to assess civil
and criminal penalties against any person who fails to perform any duties imposed by KRS
Chapter 224, the regulations promulgated pursuant to KRS Chapter 224 or any determination or
order of the cabinet. This chapter establishes standards for enforcement and compliance
monitoring of hazardous waste and solid waste management and practices. The enforcement and
compliance monitoring standards of this chapter are for those activities and hazardous waste and
solid waste sites or facilities regulated pursuant to 401 KAR Chapters 30 through 47. This
regulation establishes the policy for determining penalties.
Section 1. Penalties. Any person or state or federal agency who violates any of
the applicable provisions of KRS Chapter 224 or who violates any determination, order, or
regulation adopted pursuant thereto, shall be subject to civil or criminal penalties as set forth in
KRS 224.99-010.
401 KAR 40:050 - 1
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Effective Date - May 8, 1990
401 KAR 40:060. County Enforcement Representative.
RELATES TO: KRS 224.01, 224.10, 224.18, 224.40, 224.43, 224.46, 224.99
STATUTORY AUTHORITY: KRS 109.042, 224.10-100, 224.43-310
NECESSITY AND FUNCTION: KRS 109.042 requires the cabinet to promulgate
administrative regulations for local government inspection of solid waste landfills and enforcement
procedures. This regulation establishes the minimum requirements for appointment as a county
enforcement representative, establishes standards for compliance monitoring and establishes
reporting requirements.
Section 1. Position Requirements. When a county or urban county government
elects to employ a county enforcement representative under the provisions of KRS 109.042, the
individual employed in the position shall, at a minimum, meet the following requirements:
(1) The representative shall be a graduate of a college or university with a bachelors
degree including fifteen (15) semester equivalent hours in the physical or biological sciences.
Professional experience in environmental management may substitute for the educational
requirements on a year-for-year basis.
(2) The individual appointed to the position of county enforcement representative shall
within one (1) year of appointment complete the manager portion of the Kentucky Landfill
Operator Certification Program and successfully complete the certified landfill manager test as
outlined in 401 KAR 47:070.
Section 2. Inspection Requirements.
(1) The comity enforcement representative shall conduct inspections or investigations
in a manner that is reasonable and necessary. The county enforcement representative shall obtain
information and evidence with which to determine the compliance of the facilities identified in
Section 5 of this regulation with the provisions of relative KRS Chapter 224, 401 KAR Chapters
47 and 48, terms and conditions of a permit and any order of the secretary. Inspections shall be
conducted in accordance with procedures approved by the cabinet using forms approved by the
cabinet.
(2) The county enforcement representative upon presentation of proper identification
and authority may:
(a) Enter any permitted facility identified in Section 5 of this regulation located in the
county, to inspect the premises and gather evidence on existing conditions and procedures;
(b) Obtain representative samples of waste or any material believed to be polluting or
contaminating the environment;
(c) Conduct tests, analyses and evaluations to determine compliance with the
requirements of KRS Chapter 224, 401 KAR Chapters 47 and 48, terms and conditions of a
permit and any order of the secretary;
401 KAR 40:060 - 1
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(d) Obtain samples of any containers and photographs or facsimiles of container labels;
(e) Inspect and copy any pertinent records, reports, information or test results relating
to the requirements of KRS Chapter 224 and 401 KAR Chapters 47 and 48, terms and conditions
of the permit and any order of the secretary; and
(f) Question any person found on the premises, including but not limited to employees
or agents of the owner, operator or agency in charge of the premises, concerning their duties,
responsibilities, past activities or any other matter relating to the requirements of KRS Chapter
224 and 401 KAR Chapters 47 through 48.
(3) In the event that any samples are obtained prior to leaving the premises, a receipt
describing the samples obtained shall be given to the owner, operator, or agency in charge and,
if requested, a portion of each such sample equal in volume or weight to the portion retained. A
copy of the results shall be furnished to the owner, operator or agency in charge if an analysis is
made.
Section 3. Timing and Conduct of Inspections.
(1) The county enforcement representative shall have unrestricted right of entry and
access to all parts of any facility identified in Section 5 of this regulation located in the county for
any purpose associated with their proper duties pursuant to 401 KAR Chapters 47 and 48.
(2) Presentation of credentials. The county enforcement representative shall present
credentials for identification purposes upon request by a representative of the owner or operator.
(3) The county enforcement representative shall not be required by the cabinet or the
owner or operator to schedule inspections or to give prior notice that an inspection shall be
conducted.
(4) The county enforcement representative shall only be authorized to inspect inside
the boundaries of the county or urban county government that elected to implement KRS 109.042.
Section 4. Reporting Requirements.
(1) A report listing any deficiencies found during the inspection shall be prepared by
the inspector and shall be kept on file in the county. A copy of the inspection report shall be
provided to the owner or operator or his agent immediately upon completion of the inspection.
(2) The county enforcement representatives shall make and maintain written records
of inspections or investigations including observations made and factual matters discovered. A
copy of such record shall be made available to the owner or operator and shall be available for
public inspection.
(3) The county enforcement representative shall notify the cabinet of any
noncompliances with the requirements of KRS Chapter 224 and 401 KAR Chapters 47 and 48,
the terms and conditions of the permit, and any order of the secretary upon completion of the
inspection. The notification shall be by submittal of an inspection report to the cabinet including
documentation of the deficiency(ies) noted. The cabinet shall respond to the county enforcement
representative concerning the deficiency report within three (3) working days of receipt. When
such response is by telephone, it shall be followed up by a written reply.
401 KAR 40:060 - 2
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Section 5. Applicability.
(1) The provisions of this regulation apply to county enforcement officers hired by
county or urban county governments under the provisions of KRS 109.042 and KRS 68.178 to
inspect contained, construction/demolition and residual landfills; registered permit-by-rule which
entail disposal, and residential and inert facilities through the transition period located within the
county's geographical boundary.
(2) Notification procedures. The county shall notify the cabinet in writing of the county
enforcement officer's name and hiring date within thirty (30) days of his employment.
401 KAR 40:060 - 3
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Title 401
Natural Resources and Environmental Protection Cabinet
Department for Environmental Protection
Division of Waste Management
Chapter 42
Management - Underground Storage Tanks
Definitions Related to 401 KAR Chapter 42
Scope of Underground Storage Tank Program
Performance Standards for New UST Systems
• 40 CFR 280 Subpart B
• Notification of Underground Storage Tank System Form
DEP5024/07/95
401 KAR 42:030 General Operating Requirements
• 40 CFR 280 Subpart C
401 KAR 42:040 Release Detection
• 40 CFR 280 Subpart D
• Underground Storage Tank System Site Assessment Outline for
External Release Detection Methods (Groundwater, Vapor, and
Interstitial Monitoring) (October 1995)
• Kentucky Underground Storage Tank System (External Release
Detection) Monitoring Well Form DEP8047/07/95
Waste
401 KAR 42:005
401 KAR 42:011
401 KAR 42:020
401 KAR 42:050 Release Reporting, Investigation, and Confirmation
• 40 CFR 280 Subpart E
401 KAR 42:060 Release Response and Corrective Action for UST Systems Containing
Petroleum or Hazardous Substances
40 CFR 280 Subpart F
• Underground Storage Tank System Site Check Outline (October
1995)
• Underground Storage Tank System Site Investigation Outline
(October 1995)
• Underground Storage Tank System Corrective Action Plan
Outline (October 1995)
• Underground Storage Tank System Release Response and Initial
Abatement Requirements Outline (October 1995)
• UST Groundwater Sample Analyses Form DEP2013/09/05/95
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401 KAR 42:070 Out-of-service UST Systems, Temporary Closure and Permanent
Closure of UST Systems, and Change-in-service of UST Systems
• Underground Storage Tank System Closure Outline (October
1995)
• Notice of Intent to Permanently Close Underground Storage
Tank System Form DEP5025/07/95
• Closure Assessment Report Form DEP4058/07/95
• Kentucky Underground Storage Tank Assessment Well Form
DEP5033/07/95
401 KAR 42:071 Voluntary Closure for Facilities that Permanently Closed UST System
or Had a Confirmed Release Prior to April 18, 1994
• Pre April 18, 1994 Underground Storage Tank (UST) System
Voluntary Closure Outline (October 1995)
401 KAR 42:080 Classification of Petroleum Underground Storage Tank Systems and
Listing of Associated Cleanup Levels
• Petroleum Underground Storage Tank System Facility
Classification Outline (October 1995)
• Classification Guide DEP6053/10/95
• Affected Property Owner Consent Form DEP6054/10/95
401 KAR 42:090
401 KAR 42:200
Adoption of Federal Regulations Without Change
• 40 CFR 280 Subpart H
Underground Storage Tank System Owner Registration Fees
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Effective Date - November 14, 1995
401 KAR 42:005. Definitions Related to 401 KAR Chapter 42
RELATES TO: KRS 224.01, 224.10, and 224.60; 40 CFR Part 281; and 42 USC
6991c
STATUTORY AUTHORITY: KRS 224.01-100 and 224.60-105; 40 CFR Part 280
and Part 281; and 42 USC 6991c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs that provide for the
prevention, abatement, and control of contaminants that may threaten the environment. KRS
224.60-105(2) requires the Cabinet to regulate underground storage tank (UST) systems by
requiring notification, minimum construction and performance standards, leak detection, record
keeping, release reporting, corrective action, closure, financial responsibility, and other standards
to protect human health and the environment. KRS 224.60-105(3) requires the Cabinet to
establish a regulatory program that implements federal requirements for UST systems. This
chapter identifies requirements for UST systems. This administrative regulation defines terms
used throughout this chapter.
Section 1. Definitions. Unless otherwise specifically defined in KRS Chapter 224
or other administrative regulations of 401 KAR Chapter 42, or otherwise specifically indicated
by context, terms in 401 KAR Chapter 42 shall have the meanings given in this administrative
regulation.
(1) "Aboveground release" means any release to the surface of the land or to surface
water. This includes, but is not limited to, releases from the above ground portion of a UST
system and aboveground releases associated with overfills and transfer operations as the regulated
substance moves to or from a UST system.
(2) "Ancillary equipment" means any devices" including, but not limited to, such
devices as piping, fittings, flanges, valves, and pumps used to distribute, meter, or control the
flow of regulated substances to and from a UST system.
(3) "Background" means the concentration of substances consistently present in the
environment at, or regionally proximate to, a release, but outside of the influence of the release.
There are two (2) types of background as follows:
(a) "Natural background" means the amount of naturally-occurring substances in the
environment, exclusive of that from anthropogenic sources; and
(b) "Ambient background" means the amount of both naturally-occurring substances
and ubiquitous anthropogenic substances in the environment at levels that are representative of the
region surrounding the site and at levels not attributable to activities on the property.
(4) "Belowground release" means any release to the subsurface of the land or to
groundwater. This includes, but is not limited to, releases from the belowground portions of a
UST system and belowground releases associated with overfills and transfer operations as the
401 KAR 42:005 - 1
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regulated substance moves to or from a UST system.
(5) "Beneath the surface of the ground" means, for purposes of identifying an
underground storage tank system as set forth in KRS 224.60-100, beneath the ground surface or
otherwise covered with earthen materials.
(6) "Cathodic protection" means a technique to prevent corrosion of a metal surface
by making that surface the cathode of an electrochemical cell. For example, a UST system can
be cathodically protected through the application of either galvanic anodes or impressed current.
(7) "Cathodic protection tester" means a person accredited or certified as a cathodic
protection tester by the National Association of Corrosion Engineers (NACE International).
(8) "CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 USC 9601 et seq.).
(9) "Change in service" means continued use of a UST system to store a non-regulated
substance.
(10) "Compatible" means the ability of two (2) or more substances to maintain their
respective physical and chemical properties upon contact with one another for the design life of
the UST system under conditions likely to be encountered in the UST system.
(11) "Connected piping" means all underground piping including valves, elbows, joints,
flanges, and flexible connectors attached to a UST system through which regulated substances
flow. For the purpose of determining how much piping is connected to any individual UST
system, the piping that joins two (2) UST systems shall be allocated equally between them.
(12) "Consumptive use" means, with respect to heating oil, consumed on the premises
where stored.
(13) "Contamination" means degradation in the quality of surface water, sediment,
groundwater, air, soil, or bedrock as a result of human activities.
(14) "Corrective action" means those actions necessary to protect human health and the
environment in the event of a release from a UST system.
(15) "Corrosion expert" means a person accredited or certified as being a corrosion
expert by the National Association of Corrosion Engineers (NACE International), or a
professional engineer registered by the Kentucky State Board of Registration for Professional
Engineers and Land Surveyors with certification or licensing that includes education and
experience in corrosion control of buried or submerged metal piping systems and metal tanks.
(16) "Dielectric material" means a material that does not conduct direct electrical
current.
(17) "Domestic-use well, spring, cistern, or well head protection area" means a well,
spring, cistern, or well head protection area currently used or potentially used by humans for
personal, commercial, or agriculture purposes.
(18) "Electrical equipment" means underground equipment containing dielectric fluid
used for the operation of equipment such as transformers and buried electrical cable.
(19) "Empty" means all regulated substances have been removed from the UST system
using commonly employed practices so that no more than 2.5 centimeters (one (1) inch) of
residue, or 0.3 percent by weight of the total capacity of the UST system, remain in the system.
(20) "Environmentally sensitive feature" means surface waters and wetland areas. The
term shall not include road-side ditches or man-made drainage ways that do not discharge to
401 KAR 42:005 - 2
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surface waters or wetland areas.
(21) "EPA identification number" means the number assigned by the U.S. EPA or the
Cabinet to each hazardous waste generator; transporter; and treatment, storage, or disposal
facility.
(22) "Excavation zone" means the volume containing the UST system and backfill
material bounded by the ground surface, walls, and floor of the pit and trenches into which the
UST system is placed at the time of installation.
(23) "Existing UST system" means a UST system used to contain an accumulation of
regulated substances or for which installation has commenced on or before December 22, 1988.
Installation is considered to have commenced if:
(a) The owner or operator has obtained all federal, state, and local approvals or
permits necessary to begin physical construction of the site or installation of the UST system; and
(b)l. A continuous on-site physical construction or installation program has begun; or
2. The owner or operator has entered into contractual obligations, that cannot be
canceled or modified without substantial loss, for physical construction at the site or installation
of the UST system to be completed within a reasonable time.
(24) "Facility" or "site" means the property on which the UST system is located.
(25) "Farm tank" means a tank located on a tract of land devoted to the production of
crops (including nurseries) or raising animals (including fish hatcheries) and associated residences
and improvements.
(26) "Federal agency" means any department, agency, or other instrumentality of the
federal government, any independent agency or establishment of the federal government, including
any government corporation, and the U.S. Government Printing Office.
(27) "Flow-through process tank" means a tank that forms an integral part of a
production process through which there is a steady, variable, recurring, or intermittent flow of
materials during the operation of the process. Flow-through process tanks do not include tanks
used for the storage of materials prior to their introduction into the production process or for the
storage of finished products or by-products from the production process.
(28) "Free product" means a regulated substance that is present as a nonaqueous phase
liquid (for example, liquid not dissolved in water).
(29) "Gathering lines" means pipelines, equipment, facilities, and buildings used in the
transportation of oil or gas during oil or gas production or gathering operations.
(30) "Groundwater" means the subsurface water occurring in the zone of saturation
beneath the water table, and perched water zones below the B-soil horizon, including water
circulating through fractures, bedding planes, and solution conduits.
(31) "Hazardous substance UST system" means a UST system that:
(a) Contains a hazardous substance identified in Section 101(14) of CERCLA (but not
including any substance regulated as a hazardous waste under 401 KAR Chapters 31 through 39),
or contains a mixture of such a hazardous substance and petroleum; and
(b) Is not a petroleum UST system.
(32) "Heating oil" means petroleum that is No. 1, No. 2, No. 4-light, No. 4~heavy,
No. 5—light, No. 5— heavy, and No. 6 technical grades of fuel oil; other residual fuel oils
(including Navy Special Fuel Oil and Bunker C); and other fuels when used as substitutes for one
401 KAR 42:005 - 3
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of these fuel oils. Heating oil is typically used in the operation of heating equipment, boilers, or
furnaces.
(33) "Hydraulic lift tank" means a tank holding hydraulic fluid for a closed-loop
mechanical system that uses compressed air or hydraulic fluid to operate lifts, elevators, and other
similar devices.
(34) "Hydrogeologically downgradient" means in the direction from a point of higher
hydrostatic pressure to a point of lower hydrostatic pressure, as defined by wells or piezometers
constructed to the same depth, or in the direction from a point where a higher water table
elevation exists to a point where a lower water table elevation exists, as defined by wells or
piezometers.
(35) "Hydrogeologically upgradient" means in the direction from a point of lower
hydrostatic pressure to a point of higher hydrostatic pressure, as defined by wells or piezometers
constructed to the same depth, or in the direction from a point where a lower water table elevation
exists to a point where a higher water table elevation exists, as defmed by wells or piezometers.
(36) "Leak-detection system" means a method of monthly monitoring capable of
detecting a failure in a UST system of either the primary or secondary containment system, or
capable of detecting the presence of a release of a regulated substance outside the UST system.
(37) "Liquid trap" means a sump, well cellar, or other trap used in association with oil
and gas production, gathering, and extraction operations (including gas production plants) for the
purpose of collecting oil, water, and other liquids.
(38) "Maintenance" means the normal operational upkeep to prevent a UST system from
releasing a regulated substance.
(39) "Monitoring" means the act of systematically collecting and accessing data on
operational parameters or on the quality of the air, soil, bedrock, groundwater, sedimeni, or
surface water.
(40) "Motor fuel" means petroleum or a petroleum-based substance that is motor
gasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or any grade of gasohol, and is typically
used as a fuel in the operation of a motor or engine.
(41) "Newly discovered UST system" means a UST system at a facility that would not
have been discovered by the owner or operator by the exercise of ordinary diligence.
(42) "New UST system" means a UST system that will be used to contain an
accumulation of regulated substances and for which installation has commenced after December
22, 1988.
(43) "Noncommercial purposes" means, with respect to motor fuel, not for resale.
(44) "Off-site" means any property other than the facility.
(45) "Operation" means the storage and dispensing of a regulated substance from a UST
system.
(46) "On the premises where stored" means, with respect to heating oil, UST systems
located on the same property where the stored heating oil is used.
(47) "Operational life" means the period beginning when installation of the UST system
has commenced and ending when the UST system is closed under 401 KAR 42:070 or 401 KAR
42:071.
(48) "Operator" means any person in control of, or having responsibility for, the daily
401 KAR 42:005 - 4
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operation of the UST system.
(49) "Overfill release" means a release that occurs when a UST system is filled beyond
its capacity, resulting in a discharge of the regulated substance to the environment.
(50) "Owner" means:
(a) In the case of a UST system in use on November 8, 1984, or brought into use after
that date, any person who owns a UST system used for storage, use, or dispensing of a regulated
substance; and
(b) In the case of any UST system in use before November 8, 1984, but no longer in
use on that date, any person who owned the UST system immediately before the discontinuation
of its use.
(51) "Permanent closure" means either removing the UST system from the ground or
filling the UST system with an inert solid material or a combination of both methods.
(52) "Permanently closed" means a UST system was:
(a) Closed prior to December 22, 1988 in accordance with the requirements of the
Kentucky Fire Marshal, in accordance with applicable industry standards at the time of closure,
and in such a manner as to prevent any future use of the UST system;
(b) Closed after December 22, 1988, but prior to December 19, 1990, in accordance
with 40 CFR 280.71 through 40 CFR 280.74;
(c) Closed after December 19, 1990, but prior to April 18, 1994, in accordance with
administrative regulations in effect at that time;
(d) Closed after April 18, 1994, but prior to January 1, 1996, in accordance with the
emergency administrative regulations that took effect on February 15, 1994; or
(e) Closed after January 1, 1996 in accordance with 401 KAR 42:070 or 401 KAR
42:071 in effect at that time.
(53) "Person" means an individual, trust, firm, joint stock company, federal agency,
corporation, state, municipality, commission, or political subdivision of a state. The term also
includes a consortium, a joint venture, the United States Government, or a commercial entity.
(54) "Petroleum" means crude oil or any fraction thereof that is liquid at standard
conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch
absolute). The term includes, but is not limited to, petroleum and petroleum-based substances
comprised of a complex blend of hydrocarbons derived from crude oil though processes of
separation, conversion, upgrading, and finishing, such as motor fuels, jet fuels, distillate fuel oils,
residual fuel oils, lubricants, petroleum solvents, and used oils.
(55) "Petroleum UST system" means a UST system that contains petroleum or a mixture
of petroleum with de minimis quantities of other regulated substances. The term includes those
containing motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum
solvents, and used oils.
(56) "Pipe" or "Piping" means a hollow cylinder or tubular conduit that is constructed
of non-earthen materials (for example, concrete, steel, plastic, or a combination of such
materials).
(57) "Pipeline facilities (including gathering lines)" means new and existing pipe rights-
of-way and any associated equipment, facilities, or buildings.
(58) "Point of compliance" means the property boundaries of the facility.
401 KAR 42:005 - 5
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(59) "Regulated substance" shall have the meaning specified in KRS 224.60-100.
(60) "Release" means any spilling, leaking, emitting, discharging, escaping, leaching,
or disposing of a regulated substance into groundwater, surface water, surface or subsurface soils,
or interstitial space between a UST system and its secondary barrier or secondary containment.
The term shall not include spilling, leaking, emitting, discharging, escaping, leaching, or
disposing that is permitted or authorized by Kentucky or federal law.
(61) "Release detection" means a method of determining whether a release of a
regulated substance has occurred from the UST system into the environment or into the interstitial
space between a UST system and its secondary barrier or secondary containment.
(62) "Repair" means to restore a UST system component that has caused a release of
a regulated substance from a UST system.
(63) "Residential tank" means a tank located on property used primarily for dwelling
purposes.
(64) "Residual tank materials" means any accumulated tank water, bottom sediments,
mixture of product and water, or other material remaining in a tank after removal of tank
contents.
(65) "SARA" means the Superfund Amendments and Reauthorization Act of 1986.
(66) "Septic tank" means a water-tight covered receptacle designed to receive or
process, through liquid separation or biological digestion, the sewage discharged from a building
sewer. The effluent from the receptacle is distributed for disposal through the soil, and settled
solids and scum from the tank are pumped out periodically and hauled to a treatment facility.
(67) "Storm-water or wastewater collection system" means piping, pumps, conduits,
and any other equipment used to collect or transport the flow of surface water run-off resulting
from precipitation or domestic, commercial, or industrial wastewater to or from retention areas
or any areas where treatment is designated to occur.
(68) "Surface impoundment" means a natural topographic depression, man-made
excavation, or diked area formed primarily of earthen materials (although it may be lined with
man-made materials) that is not an injection well.
(69) "Surface water" means those waters having well-defined banks and beds, either
constantly or intermittently flowing; lakes and impounded waters; marshes and wetlands; and any
subterranean waters flowing in well-defined channels and having a demonstratable hydrologic
connection to the surface. Effluent ditches and lagoons used for waste treatment that are situated
on property owned, leased, or under valid easement by a permitted discharger are not considered
to be surface waters of the Commonwealth.
(70) "Tank" means a stationary device designed to contain an accumulation of regulated
substances and constructed of non-earthen materials (for example, concrete, steel, plastic, or a
combination of such materials) that provide structural support.
(71) "Tank contents" means any accumulated tank water, bottom sediments, or mixture
of product and water that is removed from a tank at one (1) time by the same method and that is
accepted by a recycling facility.
(72) "Temporary closure" means taking a UST system out of operation pursuant to the
requirements of 401 KAR 42:070 Section 3.
(73) "Underground area" means an underground room, such as a basement, cellar, shaft
401 KAR 42:005 - 6
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or vault, providing enough space for physical inspection of the exterior of the UST system situated
on or above the surface of the floor.
(74) "Underground utility conduits" means any man-made underground conduit installed
for utility purposes either on or off site.
(75) "Upgrade" means the addition of or retrofitting of UST system components to
improve the ability of a UST system to prevent the release of a regulated substance. Examples
of upgrades include the addition of cathodic protection, improvements to the interior lining, and
improvements of spill and overfill controls.
(76) "U.S. EPA" or "EPA" means the United States Environmental Protection Agency.
(77) "UST system", "tank system", or "underground storage tank system" means an
underground storage tank (as defined in KRS 224.60-100), connected underground piping,
underground ancillary equipment, and containment system, if any.
(78) "Wastewater treatment tank" means a tank that is designed to receive and treat an
influent wastewater through physical, chemical, or biological methods.
401 KAR 42:005 - 7
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Effective Date - November 14, 1995
401 KAR 42:011. Scope of Underground Storage Tank Program.
RELATES TO: KRS 224.10 and 224.60, 40 CFR Part 280 Subpart A and Part 281,
and 42 USC 6991c
STATUTORY AUTHORITY: KRS 224.10-100 and 224.60-105, 40 CFR Part 280
Subpart A and Part 281, and 42 USC 6991c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs that provide for the
prevention, abatement, and control of contaminants that may threaten the environment. KRS
224.60-105(2) requires the Cabinet to regulate underground storage tank (UST) systems by
requiring notification, minimum construction and performance standards, leak detection, record
keeping, release reporting, corrective action, closure, financial responsibility, and other standards
to protect public health and the environment. KRS 224.60-105(3) requires the Cabinet to establish
a regulatory program that implements federal requirements for UST systems. This chapter
identifies requirements for UST systems. This administrative regulation establishes the scope of
the Cabinet's underground storage tank program, including provisions for exclusions, deferrals,
and interim prohibitions.
Section 1. Applicability, Exclusions, and Deferrals. The requirements of this chapter
apply to all owners and operators of UST systems, except as provided in subsections (1) and (2)
of this section. Any UST system listed in subsection (2) of this section shall meet the
requirements of Section 2 of this administrative regulation.
(1) Exclusions. The following UST systems are excluded from the requirements of
this chapter:
(a) UST systems containing wastes identified as hazardous in 401 KAR Chapter 31,
and UST systems containing mixtures of hazardous waste and other regulated substances;
(b) Wastewater treatment tank systems that are part of a wastewater treatment facility
regulated under the Clean Water Act, as amended (33 USC 1251 et seq.)\
(c) Equipment and machinery containing regulated substances for operational purposes,
such as hydraulic lift tanks and electrical equipment tanks;
(d) UST systems having a capacity of 110 gallons or less;
(e) UST systems containing a de minimis concentration of regulated substances;
(f) Emergency spill or overflow containment UST systems that are emptied
immediately after use; and
(g) UST systems excluded from the definition of "underground storage tank" provided
in KRS 224.60-100.
(2) Deferrals. This subsection identifies UST systems that are deferred from
compliance with some of the requirements of 401 KAR Chapter 42.
(a) 401 KAR 42:040 does not apply to UST systems that store fuel solely for use by
401 KAR 42:011 - 1
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emergency power generators.
(b) 401 KAR 42:020, 401 KAR 42:030, 401 KAR 42:040, and 401 KAR 42:050 do
not apply to the following UST systems:
1. Wastewater treatment tank systems that are not part of a wastewater treatment
facility regulated under the Clean Water Act, as amended (33 USC 1251 et seq.);
2. UST systems containing radioactive material that are regulated under the Atomic
Energy Act of 1954, as amended (42 USC 2011 et seq.)\
3. UST systems that are part of an emergency generator system at a nuclear power
generation facility regulated by the Nuclear Regulatory Commission under Appendix A of 10 CFR
Part 50;
4. Airport hydrant fuel distribution systems; and
5. UST systems with field-constructed tanks.
Section 2. Interim prohibition for deferred UST systems.
(1) Except as provided in subsection (2) of this section, no person shall install a UST
system listed in Section 1(2) of this administrative regulation for the purpose of storing regulated
substances unless the system (whether of single- or double-wall construction):
(a) Will prevent releases due to corrosion or structural failure for the operational life
of the UST system;
(b) Is cathodically protected against corrosion, constructed of noncorrodible material,
steel clad with a noncorrodible material, or designed in a manner to prevent the release of any
stored substance; and
(c) Is constructed or lined with material that is compatible with the stored substance.
(2)(a) A UST system without corrosion protection may be installed at a site that is
determined by a corrosion expert not to be corrosive enough to cause it to have a release due to
corrosion during its operating life.
(b) Owners and operators shall maintain records that demonstrate compliance with
paragraph (a) of this subsection for the remaining life of the tank.
(3) The document incorporated by reference in Section 3 of this administrative
regulation shall be used in meeting the requirements of subsection (1) and (2) of this section.
Section 3. Incorporation by Reference.
(1) The following document is hereby incorporated by reference: The National
Association of Corrosion Engineers Standard RP0285-95, Item Number 21030, "Corrosion
Control of Underground Storage Tank Systems by Cathodic Protection" (Revised February 1995).
(2) The document referenced in subsection (1) of this section is available for inspection
and copying, subject to copyright law, at the Underground Storage Tank Branch of the Division
of Waste Management, 14 Reilly Road, Frankfort, KY 40601, (502) 564-6716, from 8:00 a.m.
to 4:30 p.m. eastern time, Monday through Friday, excluding state holidays.
401 KAR 42:011 -2
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Effective Date - November 14, 1995
401 KAR 42:020. Performance Standards for New UST Systems.
RELATES TO: KRS 224.10 and 224.60, 40 CFR Part 280 Subpart B and Part 281,
and 42 USC 6991c
STATUTORY AUTHORITY: KRS 224.10-100 and 224.60-105, 40 CFR Part 280
Subpart B and Part 281, and 42 USC 6991c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs that provide for the
prevention, abatement, and control of contaminants that may threaten the environment. KRS
224.60-105(2) requires the Cabinet to regulate underground storage tank (UST) systems by
requiring notification, minimum construction and performance standards, leak detection, record
keeping, release reporting, corrective action, closure, financial responsibility, and other standards
to protect public health and the environment. KRS 224.60-105(3) requires the Cabinet to establish
a regulatory program that implements federal requirements for UST systems. This chapter
identifies requirements for UST systems. This administrative regulation establishes requirements
concerning performance standards, notification, and alternatives for upgrading existing UST
systems.
Section 1. Adoption of Federal Regulations.
(1) The requirements concerning performance standards, notification, and alternatives
for upgrading UST systems are governed by 40 CFR Part 280, Subpart B (1994).
(2) 40 CFR 280.22(b) allows for state forms to be used in lieu of federal forms for
notification of UST systems. The document incorporated by reference in Section 2 of this
administrative regulation shall be used in meeting the requirements of this administrative
regulation and 401 KAR 42:200.
Section 2. Incorporation by Reference.
(1) The following document is hereby incorporated by reference: "Notification for
Underground Storage Tank System Form", DEP Form 5024 (July 1995).
(2) The document referenced in subsection (1) of this section is available for inspection
and copying, subject to copyright law, at the Underground Storage Tank Branch of the Division
of Waste Management, 14 Reilly Road, Frankfort, KY 40601, (502) 564-6716, from 8:00 a.m.
to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays.
401 KAR 42:020 - 1
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40 CFR 280
Subpart B
-------
§280.20
Subpart B—UST Systems: Design,
Construction, Installation and
Notification
§ 280.20 Performance standards for
new UST systems.
In order to prevent releases due to
structural failure, corrosion, or spills
and overfills for as long as the UST
system is used to store regulated sub-
stances, all owners and operators of
new UST systems must meet the fol-
lowing requirements.
(a) Tanks. Each tank must be prop-
erly designed and constructed, and any
portion underground that routinely
contains product must be protected
from corrosion, in accordance with a
code of practice developed by a nation-
ally recognized association or inde-
pendent testing laboratory as specified
below:
(1) The tank is constructed of fiber-
glass-reinforced plastic; or
Note: The following industry codes may be
used to comply with paragraph (a)(1) of this
section: Underwriters Laboratories Standard
1316, "Standard for Glass- Fiber-Reinforced
Plastic Underground Storage Tanks for Pe-
troleum Products"; Underwriter's Labora-
tories of Canada CAN4-S615-M83, "Standard
for Reinforced Plastic Underground Tanks
for Petroleum Products": or American Soci-
ety of Testing and Materials Standard D4021-
86, "Standard Specification for Glass-Fiber-
Reinforced Polyester Underground Petro-
leum Storage Tanks."
(2) The tank is constructed of steel
and cathodically protected in the fol-
lowing manner:
(i) The tank is coated with a suitable
dielectric material;
(ii) Field-installed cathodic protec-
tion systems are designed by a corro-
sion expert;
(iii) Impressed current systems are
designed to allow determination of cur-
rent operating status as required in
§ 280.31(c); and
(iv) Cathodic protection systems are
operated and maintained in accordance
with §280.31 or according to guidelines
established by the implementing agen-
cy; or
40 CFR Ch. I (7-1-94 Edition)
Note: The following codes and standards
may be used to comply with paragraph (a)(2)
of this section:
(A) Steel Tank Institute "Specification for
STI-P3 System of External Corrosion Pro-
tection of Underground Steel Storage
Tanks":
(B) Underwriters Laboratories Standard
1746. "Corrosion Protection Systems for Un-
derground Storage Tanks";
(C) Underwriters Laboratories of Canada
CAN4-S603-M85, "Standard for Steel Under-
ground Tanks for Flammable and Combus-
tible Liquids," and CAN4-G03.1-M85, "Stand-
ard for Galvanic Corrosion Protection Sys-
tems for Underground Tanks for Flammable
and Combustible Liquids." and CAN4-S631-
M84, "Isolating Bushings for Steel Under-
ground Tanks Protected with Coatings and
Galvanic Systems"; or
(D) National Association of Corrosion En-
gineers Standard RP-02-85, "Control of Ex-
ternal Corrosion on Metallic Buried, Par-
tially Buried, or Submerged Liquid Storage
Systems," and Underwriters Laboratories
Standard 58. "Standard for Steel Under-
ground Tanks for Flammable and Combus-
tible Liquids."
(3) The tank is constructed of a steel-
fiberglass-reinforced-plastic composite;
or
Note: The following industry codes may be
used to comply with paragraph (a)(3) of this
section: Underwriters Laboratories Standard
1746, "Corrosion Protection Systems for Un-
derground Storage Tanks," or the Associa-
tion for Composite Tanks ACT-100, "Speci-
fication for the Fabrication of FRP Clad Un-
derground Storage Tanks."
(4) The tank is constructed of metal
without additional corrosion protec-
tion measures provided that:
(i) The tank is installed at a site that
is determined by a corrosion expert not
to be corrosive enough to cause it to
have a release due to corrosion during
its operating life; and
(ii) Owners and operators maintain
records that demonstrate compliance
with the requirements of paragraphs
(a)(4)(i) for the remaining life of the
tank; or
(5) The tank construction and corro-
sion protection are determined by the
implementing agency to be designed to
prevent the release or threatened re-
lease of any stored regulated substance
in a manner that is no less protective
of human health and the environment
than paragraphs (a) (1) through (4) of
this section.
-------
Environmental Protection Agency
§280.20
(b) Piping. The piping that routinely
contains regulated substances and is in
contact with the ground must be prop-
erly designed, constructed, and pro-
tected from corrosion in accordance
with a code of practice developed by a
nationally recognized association or
Independent testing laboratory as spec-
ified below:
(1) The piping is constructed of fiber-
glass-reinforced plastic; or
Note: The following codes and standards
may be used to comply with paragraph (b)(1)
of this section:
(A) Underwriters Laboratories Subject 971,
"UL Listed Non-Metal Pipe";
(B) Underwriters Laboratories Standard
567. "Pipe Connectors for Flammable and
Combustible and LP Gas";
(C) Underwriters Laboratories of Canada
Guide ULC-107, "Glass Fiber Reinforced
Plastic Pipe and Fittings for Flammable
Liquids"; and
(D) Underwriters Laboratories of Canada
Standard CAN 4-S633-M81, "Flexible Under-
ground Hose Connectors."
(2) The piping is constructed of steel
and cathodically protected in the fol-
lowing manner:
(i) The piping is coated with a suit-
able dielectric material;
(ii) Field-installed cathodic protec-
tion systems are designed by a corro-
sion expert;
(iii) Impressed current systems are
designed to allow determination of cur-
rent operating status as required in
§280.31(c); and
(iv) Cathodic protection systems are
operated and maintained in accordance
with §280.31 or guidelines established
by the implementing agency; or
Note: The following codes and standards
may be used to comply with paragraph (b)(2)
of this section:
(A) National Fire Protection Association
Standard 30, "Flammable and Combustible
Liquids Code";
(B) American Petroleum Institute Publica-
tion 1615, "Installation of Underground Pe-
troleum Storage Systems";
(C) American Petroleum Institute Publica-
tion 1632, "Cathodic Protection of Under-
ground Petroleum Storage Tanks and Piping
Systems"; and
(D) National Association of Corrosion En-
gineers Standard RP-01-69, "Control of Ex-
ternal Corrosion on Submerged Metallic Pip-
ing Systems."
(3) The piping is constructed of metal
without additional corrosion protec-
tion measures provided that:
(i) The piping is Installed at a site
that is determined by a corrosion ex-
pert to not be corrosive enough to
cause it to have a release due to corro-
sion during its operating life; and
(ii) Owners and operators maintain
records that demonstrate compliance
with the requirements of paragraph
(b)(3)(l) of this section for the remain-
ing life of the piping; or
Note: National Fire Protection Associa-
tion Standard 30, "Flammable and Combus-
tible Liquids Code"; and National Associa-
tion of Corrosion Engineers Standard RP-01-
69, "Control of External Corrosion on Sub-
merged Metallic Piping Systems," may be
used to comply with paragraph (b)(3) of this
section.
(4) The piping construction and cor-
rosion protection are determined by
the implementing agency to be de-
signed to prevent the release or threat-
ened release of any stored regulated
substance in a manner that is no less
protective of human health and the en-
vironment than the requirements in
paragraphs (b) (1) through (3) of this
section.
(c) Spill and overfill prevention equip-
ment. (1) Except as provided in para-
graph (c)(2) of this section, to prevent
spilling and overfilling associated with
product transfer to the UST system,
owners and operators must use the fol-
lowing spill and overfill prevention
equipment:
(i) Sfeill prevention equipment that
will prevent release of product to the
environment when the transfer hose is
detached from the fill pipe (for exam-
ple, a spill catchment basin); and
(ii) Overfill prevention equipment
that will:
(A) Automatically shut off flow into
the tank when the tank is no more
than 95 percent full; or
(B) Alert the transfer operator when
the tank is no more than 90 percent
full by restricting the flow into the
tank or triggering a high-level alarm;
or
(C) Restrict flow 30 minutes prior to
overfilling, alert the operator with a
high level alarm one minute before
overfilling, or automatically shut off
flow into the tank so that none of the
-------
§280.21
40 CFR Ch. I (7-1-94 Edition)
fittings located on top of the tank are
exposed to product due to overfilling:.
(2) Owners and operators are not re-
quired to use the spill and overfill pre-
vention equipment specified in para-
graph (c)(1) of this section if:
(i) Alternative equipment is used
that is determined by the implement-
ing agency to be no less protective of
human health and the environment
than the equipment specified in para-
graph (c)(1) (i) or (ii) of this section; or
(ii) The UST system is filled by
transfers of no more than 25 gallons at
one time.
(d) Installation. All tanks and piping
must be properly installed in accord-
ance with a code of practice developed
by a nationally recognized association
or independent testing laboratory and
in accordance with the manufacturer's
instructions.
Note: Tank and piping system installation
practices and procedures described in the fol-
lowing codes may be used to comply with the
requirements of paragraph (d) of this section:
(i) American Petroleum Institute Publica-
tion 1615, "Installation of Underground Pe-
troleum Storage System"; or
(ii) Petroleum Equipment Institute Publi-
cation R.P100, "Recommended Practices for
Installation of Underground Liquid Storage
Systems"; or
(iii) American National Standards Insti-
tute Standard B31.3, "Petroleum Refinery
Piping," and American National Standards
Institute Standard B31.4 "Liquid Petroleum
Transportation Piping System."
(e) Certification of installation. All
owners and operators must ensure that
one or more of the following methods
of certification, testing, or inspection
is used to demonstrate compliance
with paragraph (d) of this section by
providing a certification of compliance
on the UST notification form in ac-
cordance with §280.22.
(1) The installer has been certified by
the tank and piping manufacturers; or
(2) The installer has been certified or
licensed by the implementing agency;
or
(3) The installation has been in-
spected and certified by a registered
professional engineer with education
and experience in UST system installa-
tion; or
(4) The installation has been in-
spected and approved by the imple-
menting agency; or
(5) All work listed in the manufactur-
er's installation checklists has been
completed; or
(6) The owner and operator have com-
plied with another method for ensuring
compliance with paragraph (d) of this
section that is determined by the im-
plementing agency to be no less protec-
tive of human health and the environ-
ment.
[53 FR 37194, Sept. 23, 1988, as amended at 56
FR 38344, Aug. 13, 1991]
§280.21 Upgrading of existing UST
systems.
(a) Alternatives allowed. Not later
than December 22, 1998, all existing
UST systems must comply with one of
the following requirements:
(1) New UST system performance
standards under § 280.20;
(2) The upgrading requirements in
paragraphs (b) through (d) of this sec-
tion; or
(3) Closure requirements under sub-
part G of this part, including applica-
ble requirements for corrective action
under subpart F.
(b) Tank upgrading requirements. Steel
tanks must be upgraded to meet one of
the following requirements in accord-
ance with a code of practice developed
by a nationally recognized association
or independent testing laboratory:
(1) Interior lining. A tank may be up-
graded by internal lining if:
(1) The lining is installed in accord-
ance with the requirements of §280.33,
and
(ii) Within 10 years after lining, and
every 5 years thereafter, the lined tank
is internally inspected and found to be
structurally sound with the lining still
performing in accordance with original
design specifications.
(2) Cathodic protection. A tank may be
upgraded by cathodic protection if the
cathodic protection system meets the
requirements of §280.20(a)(2) (ii), (iii),
and (iv) and the integrity of the tank is
ensured using one of the following
methods:
(i) The tank is internally inspected
and assessed to ensure that the tank is
structurally sound and free of corro-
sion holes prior to installing the ca-
thodic protection system; or
(ii) The tank has been installed for
less than 10 years and is monitored
-------
Environmental Protection Agency
§280.22
monthly for releases in accordance
with §280.43 (d) through (h); or
(iii) The tank has been installed for
less than 10 years and is assessed for
corrosion holes by conducting two (2)
tightness tests tha-t meet the require-
ments of §280.43(c). The first tightness
test must be conducted prior to install-
ing the cathodic protection system.
The second tightness test must be con-
ducted between three (3) and six (6)
months following the first operation of
the cathodic protection system; or
(iv) The tank is assessed for corro-
sion holes by a method that is deter-
mined by the implementing agency to
prevent releases in a manner that is no
less protective of human health and
the environment than paragraphs (b)(2)
(i) through (iii) of this section.
(3) Internal lining combined with ca-
thodic protection. A tank may be up-
graded by both internal lining and ca-
thodic protection if:
(i) The lining is installed in accord-
ance with the requirements of §280.33;
and
(ii) The cathodic protection system
meets the requirements of § 280.20(a)(2)
(ii), (iii), and (iv).
Note: The following codes and standards
may be used to comply with this section:
(A) American Petroleum Institute Publica-
tion 1631, "Recommended Practice for the In-
terior Lining of Existing Steel Underground
Storage Tanks":
(B) National Leak Prevention Association
Standard 631, "Spill Prevention, Minimum 10
Year Life Extension of Existing Steel Under-
ground Tanks by Lining Without the Addi-
tion of Cathodic Protection":
(C) National Association of Corrosion Engi-
neers Standard RP-02-85, "Control of Exter-
nal Corrosion on Metallic Buried, Partially
Buried, or Submerged Liquid Storage Sys-
tems": and
(D) American Petroleum Institute Publica-
tion 1632, "Cathodic Protection of Under-
ground Petroleum Storage Tanks and Piping
Systems."
(c) Pi-ping upgrading requirements.
Metal piping that routinely contains
regulated substances and is in contact
with the ground must be cathodically
protected in accordance with a code of
practice developed by a nationally rec-
ognized association or independent
testing laboratory and must meet the
requirements of § 280.20(b)(2) (ii), (iii),
and (iv).
Note: The codes and standards listed in the
note following §280.20(b)(2) may be used to
comply with this requirement.
(d) Spill and overfill prevention equip-
ment. To prevent spilling and overfill-
ing associated with product transfer to
the UST system, all existing UST sys-
tems must comply with new UST sys-
tem spill and overfill prevention equip-
ment requirements specified in
§ 280.20(c).
§ 280.22 Notification requirements.
(a) Any owner who brings an under-
ground storage tank system into use
after May 8, 1986, must within 30 days
of bringing such tank into use, submit,
in the form prescribed in appendix I of
this part, a notice of existence of such
tank system to the state or local agen-
cy or department designated in appen-
dix II of this part to receive such no-
tice.
Note: Owners and operators of UST sys-
tems that were in the ground on or after May
8, 1986, unless taken out of operation on or
before January 1, 1974, were required to no-
tify the designated state or local agency in
accordance with the Hazardous and Solid
Waste Amendments of 1984, Pub. L. 98-616, on
a form published by EPA on November 8, 1985
(50 FR 46602) unless notice was given pursu-
ant to section 103(c) of CERCLA. Owners and
operators who have not complied with the
notification requirements may use portions I
through VI of the notification form con-
tained in appendix I of this part.
(b) In states where state law, regula-
tions, or procedures require owners to
use forms that differ from those set
forth in appendix I of this part to fulfill
the requirements of this section, the
state forms may be submitted in lieu of
the forms set forth in Appendix I of
this part. If a state requires that its
form be used in lieu of the form pre-
sented in this regulation, such form
must meet the requirements of section
9002.
(c) Owners required to submit notices
under paragraph (a) of this section
must provide notices to the appro-
priate agencies or departments identi-
fied in appendix II of this part for each
tank they own. Owners may provide
notice for several tanks using one noti-
fication form, but owners who own
tanks located at more than one place
of operation must file a separate notifi-
-------
§280.30
cation form for each separate place of
operation.
(d) Notices required to be submitted
under paragraph (a) of this section
must provide all of the information in
sections I through VI of the prescribed
form (or appropriate state form) for
each tank for which notice must be
given. Notices for tanks installed after
December 22, 1988 must also provide all
of the information in section VII of the
prescribed form (or appropriate state
form) for each tank for which notice
must be given.
(e) All owners and operators of new
UST systems must certify in the notifi-
cation form compliance with the fol-
lowing requirements:
(1) Installation of tanks and piping
under § 280.20(e);
(2) Cathodic protection of steel tanks
and piping under §280.20 (a) and (b);
(3) Financial responsibility under
subpart H of this part; and
(4) Release detection under §§280.41
and 280.42.
(f) All owners and operators of new
UST systems must ensure that the in-
staller certifies in the notification
form that the methods used to install
the tanks and piping complies with the
requirements in § 280.20(d).
(g) Beginning October 24, 1988, any
person who sells a tank intended to be
used as an underground storage tank
must notify the purchaser of such tank
of the owner's notification obligations
under paragraph (a) of this section. The
form provided in appendix HI of this
part may be used to comply with this
requirement.
-------
Instructions for the Kentucky
NOTIFICATION FOR UNDERGROUND STORAGE TANK SYSTEM FORM (DEP5024/07/95)
GENERAL INSTRUCTIONS. ALL SECTIONS MUST BE COMPLETED TO BE ACCEPTED BY THE UNDERGROUND
"ORAGE TANK BRANCH. IF ANY APPLICABLE SECTIONS ARE NOT COMPLETED, THE ORIGINAL NOTIFICATION FOR
JDERGROUND STORAGE TANK SYSTEM FORM WILL BE RETURNED TO THE OWNER FOR CORRECTIONS. Instructions
are provided only for categories on the Notification for Underground Storage Tank System form which are not self-explanatory. If you
have any questions about any section on the form, please call the Division of Waste Management at (502) 564-6716 OR 1-800-928-4273
and ask for the Underground Storage Tank Branch. The form must be typed or printed legibly. IMPORTANT NOTE: THIS
NOTIFICATION SUPERSEDES ALL PREVIOUSLY SUBMITTED NOTIFICATION FORMS FOR YOUR FACILITY. BE SURE
TO INCLUDE ALL INFORMATION FOR EVERY ACTIVITY AT YOUR INSTALLATION, EVEN IF THIS INFORMATION WAS
PREVIOUSLY SUBMITTED ON PREVIOUS NOTIFICATION FORMS. FOR ANY FUTURE CHANGES IN INFORMATION, AN
AMENDED NOTIFICATION FORM SHALL BE SUBMITTED WITHIN THIRTY (30) DAYS OF CHANGES AND WITHIN NINETY
(90) DAYS FOR TEMPORARY CLOSURE.
OWNERSHIP OF TANK SYSTEM(S) - ALL INFORMATION IN THIS SECTION PERTAINS TO THE CURRENT LEGAL
OWNER OF THE TANK SYSTEM^ AND MUST BE COMPLETED. CURRENT OWNER OF THE TANK(S) MUST SIGN
THE OWNER CERTIFICATION PORTION OF THIS FORM ON THE LAST PAGE, (see owner certification instructions)
Owner Name: Enter Owner Name (corporation, individual, public agency, or other entity)
Mailing Address: Current owner mailing address including city, state and zip
Contact Person: Enter name of person to be contacted concerning state requirements, requests and owner responsibilities.
Telephone Number: Enter area code and telephone number of contact person.
LOCATION OF TANK SYSTEM(S)
Facility I.D. Number: Enter facility identification number (if this form is being used to register a new facility, an identification
number will be assigned and a letter will be sent advising you of the new site identification number).
Facility Name/Company: Enter name under which business and/or facility is currently operating.
Street Address: Enter exact street address including street number and/or the highway number where tanks are physically
located. DO NOT USE A POST OFFICE BOX OR ROUTE NUMBER. (Contact the appropriate post office
for the exact address of your facility)
.cy, State, Zip: Enter the city, state, and zip code where tank system is located. If in a rural location, use the city or town that
is used for your tank location mailing address.
County: Enter the name of the county where the tank system is located.
TYPE OF FACILITY
Facility Type: Please check the appropriate box for all that apply for this location.
OPERATOR OF TANK SYSTEM(S)
Operator Name: Enter name of individual, company, corporation, public agency or other entity at this facility location in charge
of daily operation of the tank system(s).
Mailing Address: Enter operators mailing address including city, state and zip.
Contact Person: Enter name of person to be contacted concerning questions related to the daily operation of the tank system(s).
Telephone Number: Enter area code and telephone number for the operator of tank system(s).
PREVIOUS TANK SYSTEM OWNER
Individual, Company: Enter the name of the individual or company from which the tank system was purchased.(If possible, attach
a copy of your signed and dated Bill of Sale or Deed.)
Mailing Address: Enter the mailing address of the Previous Owner including city, state and zip code.
Location Name: Enter the previous name of the site location, if different from the site name being used at present.
INTACT PERSON AT TANK SYSTEM LOCATION
jntact Name: Enter the name of the individual at the facility to be contacted concerning questions related to daily operations
of tank system. Please mark box if the contact person is the same as the operator.
Job Title: Enter the title of the contact person.
Telephone Number: Enter the area code and telephone number of the contact person.
-------
TYPE OF NOTIFICATION
New Notification:
Amended:
Ownership:
Technical Update:
Financial Responsibility:
Mark box X if completing this foim for a new facility not previously registered with this agency.
Marie box X if form is submitted for amendments of previous information submitted.
Mark box X if form is submitted for a change regarding ownership.
Mark box X if form is submitted for amendments in technical requirements. (See 401 KAR Chapter 42)
Mark box X if form is submitted for changes in financial responsibility. (See 401 KAR 42:090)
DESCRIPTION OF UNDERGROUND STORAGE TANK SYSTEM(S)
1. Tank Status MARK ONE BOX
Active: Tank is currently in use.
Temporarily Out of Use: If temporarily out of use, complete the additional information in the section.
2. Tank History
Date Installed:
Date Relined:
Date Purchased:
Date Last Contained
Product:
Date Removed:
List the month/day/year tank was installed.
List the month/day/year tank was relined.
List the month/day/year tank purchased. (Be sure to complete the Previous Owner Section on Page One)
List the month/day/year tank last contained product.
List the month/day/year tank was removed from the ground.
Date Closed In Place: List the month/day/year tank was filled with inert material.
Identify Inert Material: Indicate the inert material used to fill the tank.
3. Capacity:
Multi Compartment:
4. Substance Currently
or Last Stored
5. through 14:
Indicate the total gallon capacity for each tank.
Indicate Yes or No
Mark box X for all items that apply for each tank. Mark one box for each tank. NOTE: heating/fuel oil
stored & consumed on the premises are exempt. (See KRS 224.60-100 for other exemptions from die
underground storage tank regulations)
Mark appropriate box X for all that apply for each tank system.
FINANCIAL RESPONSIBILITY
15. PSTEAFC: Mark box X if the facility has been issued a Certificate of Eligibility by the Petroleum Storage Tank
Environmental Assurance Fund Commission and include the Certificate of Eligibility number.
Private Insurance: Enter name of insurance company, insurance agency and/or carrier with your policy number.
Guarantee,Surety Bond, Letter of Credit:
Mark box X if a guarantee, surety bond or a letter of credit has been obtained.
Self Insurance: Marie box X if self-insured.
Other: Marie box X if other, specify and enter amount.
Level of $1,000,000: Marie box X if facility is a petroleum marketer or nonpetroleum marketer with a monthly
use of responsibility more than 10,000 gallons.
$500,000: Mark box X if facility is a nonpetroleum marketer with a monthly use of 10,000 gallons or less.
(ANY QUESTIONS CONCERNING APPLICATIONS FOR A CERTIFICATE OF ELIGIBILITY WITH THE PETROLEUM
STORAGE TANK ENVIRONMENTAL ASSURANCE FUND COMMISSION, CALL 1-800-928-7782 OR 502-564-5981.)
16. Method of Installation Certification:
This section is to be completed for each tank installed AFTER 12/22/88 at this location.
Installer Certification Information - THIS SECTION IS TO BE COMPLETED BY THE INSTALLER FOR NEW LOCATIONS.
(ANY QUESTIONS CONCERNING INSTALLATION PLANS OR CERTIFIED CONTRACTORS, MUST BE DIRECTED
TO THE STATE FIRE MARSHAL'S OFFICE, HAZARDOUS MATERIALS SECTION AT 502-564-3626.)
OWNER CERTIFICATION
READ CAREFULLY, SIGN, DATE AND HAVE NOTARIZED. This portion must be signed bv the current owner of the facili.
ALL REGISTRATIONS MUST INCLUDE THIS NOTARIZED CERTIFICATION TO BE COMPLETE. Copied or stamped
signatures are not acceptable.
-------
DEP5024/07/95
NOTIFICATION FOR UNDERGROUND STORAGE TANK SYSTEM
FOR
TANKS
INKY
Return Completed Form To:
Division of Waste Management
Underground Storage Tank Branch
14 Reilly Road
Frankfort, KY 40601-1190
502-564-6716 OR 800-928-4273
STATE USE ONLY
Please type or print all items except signature. This form must be completed for each location containing underground storage
tanks. If more than five (5) tanks are owned at this location, photocopy the reverse side and staple continuation sheets to this
form. (Indicate number of continuation sheets )
OWNERSHIP OF TANK SYSTEM
LOCATION OF TANK SYSTEM

OWNER NAME
FACILITY ID NUMBER (UNLESS NEW LOCATION)
MAILING ADDRESS
FACILITY NAME OR COMPANY SITE IDENTIFIER
CITY
STATE ZIP CODE
STREET, COUNTY ROAD, HIGHWAY, OR STATE ROAD
CONTACT PERSON
CITY STATE ZIP CODE
AREA CODEjTELEPHONE NUMBER
COUNTY
TYPE OF FACILITY (MARK ALL THAT APPLY)
~ AIRPORT ~ BULK PLANT ~ CONVENIENCE STORE ~ FARM/NURSERY ~ FEDERAL GOVERNMENT ~ GAS STATION
~ INDUSTRY/FACTORY ~ JOBBER ~ LOCAL GOVERNMENT ~ LOCAL SCHOOL DISTRICT ~ MARINA ~ MEDICAL/HEALTH
~ PRIVATE RESIDENCE ~ QUICK LUBE ~ RAILROAD ~ STATE GOVERNMENT Q TRUCKING/TRANSPORT D TRUCKSTOP
~ UTILITIES ~ VEHICLE DEALER ~ VEHICLE LEASING ~ VEHICLE REPAIR/TIRES ~ OTHER SMALL BUSINESS
~ OTHER-PLEASE SPECIFY

OPERATOR OF TANK SYSTEM
PREVIOUS TANK SYSTEM OWNER

OPERATOR NAME (CORPORATION,INDrVTDUAWUBLIC AGENCY,OR OTHER ENTITY)
INDIVIDUAL OR COMPANY NAME
MAILING ADDRESS
MAILING ADDRESS
CITY
STATE ZIP CODE
CTTY STATE ZIP CODE
CONTACT PERSON
AREA CODE/TELEPHONE NUMBER
PREVIOUS NAME OF LOCATION
CONTACT PERSON
ATTANKIXJCATION
NAME (IF OPERATOR, MARK BOX HERE ~)
JOB TITLE AREA CODE/TELEPHONE NUMBER

-------
NOTIFICATION FORM, PAGE TWO

DEP 5024/07/95
SITE ID # LOCATION NAME
TYPE OF NOTIFICATION II
~ NEW NOTIFICATION ~ AMENDED ~ OWNERSHIP
~ TECHNICAL UPDATE
~ FINANCIAL RESPONSIBILITY
DESCRIPTION OF UNDERGROUND STORAGE TANK SYSTEM

(COMPLETE FOR EACHTANK SYSTEM AT THIS LOCATION)

Tank I.D. No. (e.g.123) or Arbitrarily Assigned Sequential No.
TANK NO.
TANK NO.
TANK NO.
TANK NO.
TANK NO.
1. Tank Status (MARK ONE x PER TANK)

Currently in Use (TAC)
~
~
~
~
~
Temporarily Out of Use (TTC)
~
~
~
~
~
IF TEMP.OUT OF USE: Estimated date (m/y) last used

Estimated Quantity of substance remaining(gallons)

2. Tank History (MARK ALL THAT APPLY)

Date installed (m/d/y)
/ /
/ /
/ /
/ /
/ /
Tank relined date (m/d/y)
/ /
/ /
/ /
/ /
/ /
Date tank was bought by this owner (m/d/y)
/ /
/ /
/ /
/ /
/ /
Date tank last contained product (m/d/y)
/ /
/ /
/ /
/ /
/ /
Date tank was removed from the ground (m/d/y)
/ /
/ /
/ /
/ /
/ /
Date tank was closed in place/filled with inert material (m/d/y)
/ /
/ /
/ /
/ /
/ /
Identify inert material (e.g., sand, concrete)

3. Estimated Total Capacity (Gallons)

Multi Compartment Tank? ~ YES ~ NO

4. Substance Currently or Last Stored In Greatest Quantity by

Volume (MARK APPROPRIATE BOX)

a. Empty (EMP)
~
~
~
~
~
b. Unknown (UNK)
~
~
~
~
~
c. Petroleum Diesel (DSL)
~
~
~
~
~
Kerosene (KER)
~
~
~
~
~
Gasoline (including alcohol blends) (GAS)
~
~
~
~
~
New Oil (NOL)
~
~
~
~
~
Used Oil (UOL)
~
~
~
~
~
Heating Oil/Fuel Oil (see instructions) (FOL)
~
~
~
~
~
Jet Fuel (JET)
~
~
~
~
~
Other, please specify (OTS)

d. Hazardous Substance (HAZ)
~
~
~
~
~
Indicate name or principal CERCLA Substance OR

Chemical Abstract Service (CAS) Number

Mark box X if tank stores a mixture of hazardous substances
~
~
~
~
~
-------
NOTIFICATION FORM, PAGE THREE

DEP 5024/07/95
ID # LOCATION NAME
. I.D. No.(e.g.l23) or Arbitrarily Assigned Sequential Number
TANK NO.
TANK NO.
TANK NO.
TANK NO.
TANK NO.
5. Material of Tank Construction (mark appropriate box)
~
~
~
~
~
Steel (SST)
~
~
~
~
~
Double Wall Steel (DST)
~
~
~
~
~
Fiberglass Reinforced Plastic (FRP)
~
~
~
~
~
Double Wall Fiberglass (DWF)
~
~
~
~
~
Steel Interior lined with Fiberglass (SIF)
~
~
~
~
~
Unknown (UNK)

Other, please specify (OTH)

6. External Corrosion Protection for Tank (mark appropriate box)

Coating & Cathodic Protection (CCP)
~
~
~
~
~
Dielectric Coated (DIE)
~
~
~
~
~
Double Wall Fiberglass (DWF)
~
~
~
~
~
Fiberglass Reinforced Plastic (FRP)
~
~
~
~
~
Field-Installed Cathodic Protection (FCP)
~
~
~
~
~
Impressed Current Cathodic Protection (ICP)
~
~
~
~
~
None (NON)
~
~
~
~
~
Unknown (UNK)
~
~
~
~
~
Other, please specify (OTH)

7. Method of Release Detection for Tank (mark appropriate box)

Automatic Tank Guaging (ATG)
~
~
~
~
~
Ground Water Monitoring (GWM)
~
~
~
~
~
Interstitial Monitoring W/Secondary Containment (IMC)
~
~
~
~
~
Interstitial Monitoring Within a Secondary Barrier (1MB)
~
~
~
~
~
Exempt from Leak Detection (LDX)
~
~
~
~
~
Manual Tank Guaging (only tanks 2,000 gallons or less) (MTG)
~
~
~
~
~
None (NON)
~
~
~
~
~
Statistical Inventory Reconciliation (SIR)
~
~
~
~
~
Daily Inventory Records W/Tank Tightness Test (TIT)
~
~
~
~
~
Vapor Monitoring (VMN)
~
~
~
~
~
Other, please specify (OTH)

8. Internal Protection for Tank (mark appropriate box)

Fiberglass/Double Wall (FDP)
~
~
~
~
~
Interior Lining (e.g. epoxy lining) (ILP)
~
~
~
~
~
None (NON)
~
~
~
~
~
Unknown (UNK)
~
~
~
~
~
Other, please specify (OTH)

9. Spill Prevention Equipment (mark appropriate box)

Catchment Basin (CCB)
~
~
~
~
~
None (NON)
~
~
~
~
~
Exempt from Spill Prevention (SPX)
~
~
~
~
~
Unknown (UNK)
~
~
~
~
~
10. Overfill Prevention Equipment (mark appropriate box)

Automatic Shutoff Device @ 95% Full (ASD)
~
~
~
~
~
Flow Restrictor at 90% Full (e.g. Ball Float Valve) (FLR)
~
~
~
~
~
High Level Alarm at 90% Full (HLA)
~
~
~
~
~
None (NON)
~
~
~
~
~
Unknown (UNK)
~
~
~
~
~
-------
NOTIFICATION FORM, PAGE FOUR

DEP 5024/07/95
SITE ID # LOCATION NAME
Tank I.D.No. (e.g. 123) or Arbitrarily Assigned Sequential No.
TANK NO.
TANK NO.
TANK NO.
TANK NO.
TANKN
11. Material of Piping Construction (mark appropriate box)

Double Wall Steel (DST)
~
~
~
~
~
Double Wall Fiberglass (DWF)
~
~
~
~
~
Fiberglass Reinforced Plastic (FRP)
~
~
~
~
~
Flexible Wall (FLX)
~
~
~
~
~
Steel (SST)
~
~
~
~
~
Unknown (UNK)
~
~
~
~
~
Other, please specify (OTH)

12. External Corrosion Protection for Piping

(MARK APPROPRIATE BOX)

Coating & Cathodic Protection (CCP)
~
~
~
~
~
Coating/Wrapping (CWR)
~
~
~
~
~
Double Wall Fiberglass (DWF)
~
~
~
~
~
Fiberglass Reinforced Plastic (FRP)
~
~
~
~
~
Field-Installed Cathodic Protection (FCP)
~
~
~
~
~
Flexible Wall (FLX)
~
~
~
~
~
Impressed Current Protection (ICP)
~
~
~
~
~
None (NON)
~
~
~
~
~
Unknown (UNK)
~
~
~
~
~
Other, please specify (OTH)

13. Type of Piping (mark appropriate box)

Pressurized (PRP)
~
~
~
~
~
Suction (SUC)
~
~
~
~
~
14. Method of Release Detection for Piping (mark appropriate box)

Automatic Line Leak Detector (ALD)Annual Line Tightness
~
~
~
~
~
Testing (ALT)
~
~
~
~
~
Check Valve/Beneath Pump (SUCTION ONLY) (CKV)
~
~
~
~
~
Electronic Leak Detection (ELD)
n
n
n
n
n
Ground Water Monitoring (GWM)
~
~
~
~
~
Interstitial Monitoring Within a Secondary Barrier (1MB)
~
~
~
~
~
Interstitial Monitoring Within Secondary Containment (IMC)
~
~
~
~
~
Exempt from Leak Detection (LDX)
~
~
~
~
~
None (NON)
~
~
~
~
~
Statistical Inventory Reconciliation (SIR)
~
~
~
~
~
Vapor Monitoring (VMN)
~
~
~
~
~
Other, please specify (OTH)

FINANCIAL RESPONSIBILITY

15.1 have financial responsibility in accordance with 401 KAR 42:090. (PLEASE SPECIFY METHOD: (MARK ALL THAT APPLY X)
n Private Insurance Insurer
Policv Number:

~ Guarantee, Surety Bond, Letter of Credit ~ Self-Insurance ~ PSTEAFC: Certificate of Eligibility #

~ Other. Dlease snecifv:

Level of Responsibility: ~ $1,000,000 ~ $300,000 ~ Other, please specify $
-------
NOTIFICATION FORM, PAGE FIVE
PEP 5024/07/95
site ID # LOCATION NAME
CERTIFICATION OF INSTALLATION (Complete for ail tank systems installed after 12/22/88 at this ideation) :
16. All new installation notifications must provide a copy of the plan submittal and plan approval by the Kentucky State Fire
Marshal's Office.
I certify that the underground storage tank system installation has been approved by the Kentucky State Fire Marshal's Office.
INSTALLER
(SIGNATURE) (DATE) (SFMO CERTIFICATION«)
(TYPE OR PRINT NAME) (POSITION/TITLE)
(COMPANY NAME)
^ : i:i "^'¦¦''4' W ¦ OWNER CERTIFICATION ' 7 .¦ "r!> , ^
THE UNDERSIGNED, FIRST BEING DULY SWORN, STATES THAT I HAVE PERSONALLY EXAMINED AND AM FAMILIAR WITH
THE INFORMATION SUBMITTED IN THIS AND ALL ATTACHED DOCUMENTS, AND THAT BASED ON MY INQUIRY OF THOSE
INDIVIDUALS RESPONSIBLE FOR OBTAINING THE INFORMATION, I BELIEVE THE SUBMITTED INFORMATION IS TRUE,
ACCURATE AND COMPLETE. THE UNDERSIGNED FURTHER ACKNOWLEDGES THAT KRS 224.99-010 PROVIDES FOR
— IALTIES FOR SUBMITTING FALSE INFORMATION.
COMPANY NAME:
NAME OF INDIVIDUAL WHOSE SIGNATURE APPEARS BELOW:
SIGNATURE*: DATE:
NOTE*: If individual signing this other than president or secretary of a corporation, attach a notarized copy of power of attorney, or resolution
of board of directors which grants individual the legal authority to represent the company, (does not apply to a single proprietorship or
partnership.)
Subscribed and sworn to before me by
This the day of , 19 .
Notary Public: My commission expires:
Commission State at Large: OR County (list county):
TKe Natural Resources and Environmental Protection Cabinet does not discriminate on the basis of race, color, national origin, sex, age,
religion, or disability and provides, on request, reasonable accommodations including auxiliary aids and services necessary to afford an
individual with a disability an equal opportunity to participate in all services, programs and activities.
-------
Effective Date - December 19, 1990
401 KAR 42:030. General Operating Requirements.
RELATES TO: KRS 224.10, 224.60,40 CFR Part 280 Subpart C, 40 CFR Part 281,
42 USC 6991c
STATUTORY AUTHORITY: KRS 224.10-100, 224.60-105, 40 CFR Part 280
Subpart C, 40 CFR Part 281, 42 USC 6991c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs which provide for the
prevention, abatement, and control of contaminants which may threaten the environment. KRS
224.60-105(2) requires the cabinet to regulate underground storage tanks by requiring notification,
minimum construction and performance standards, leak detection, recordkeeping, reporting
releases, corrective actions, closure, financial responsibility, and other requirements to protect
public health and the environment. KRS 224.60-105(3) requires the cabinet to establish a
regulatory program which implements federal requirements for underground storage tanks and to
promulgate administrative regulations for underground storage tanks which shall be submitted for
approval to the United States Environmental Protection Agency pursuant to federal regulations.
This chapter identifies requirements for underground storage tanks. This regulation establishes
requirements for spill and overfill control, operation and maintenance of corrosion protection,
compatibility, repairs, and reporting and recordkeeping.
Section 1. The requirements for spill and overflow control, operation and maintenance
of corrosion protection, compatibility, repairs, reporting and recordkeeping for underground
storage tanks are governed by 40 CFR Part 280, Subpart C (1990).
401 KAR 42:030 - 1
-------
40 CFR 280
Subpart C
-------
§280.30
40 CFR Ch. I (7-1-94 Edition)
Subpart C—General Operating
Requirements
§ 280.30 Spill and overfill control.
(a) Owners and operators must ensure
that releases due to spilling or overfill-
ing do not occur. The owner and opera-
tor must ensure that the volume avail-
able in the tank is greater than the
volume of product to be transferred to
the tank before the transfer is made
and that the transfer operation is mon-
itored constantly to prevent overfilling
and spilling.
NOTE: The transfer procedures described in
National Fire Protection Association Publi-
cation 385 may be used to comply with para-
graph (a) of this section. Further guidance
on spill and overfill prevention appears in
American Petroleum Institute Publication
1621, "Recommended Practice for Bulk Liq-
uid Stock Control at Retail Outlets," and
National Fire Protection Association Stand-
ard 30, "Flammable and Combustible Liquids
Code."
(b) The owner and operator must re-
port, investigate, and clean up any
spills and overfills in accordance with
§280.53.
§ 280.31 Operation and maintenance of
corrosion protection.
* All owners and operators of steel
UST systems with corrosion protection
must comply with the following re-
quirements to ensure that releases due
to corrosion are prevented for as long
as the UST system is used to store reg-
ulated substances:
(a) All corrosion protection systems
must be operated and maintained to
continuously provide corrosion protec-
tion to the metal components of that
portion of the tank and piping that
routinely contain regulated substances
and are in contact with the ground.
(b) All UST systems equipped with
cathodic protection systems must be
inspected for proper operation by a
qualified cathodic protection tester in
accordance with the following require-
ments:
(1) Frequency. All cathodic protection
systems must be tested within 6
months of installation and at least
every 3 years thereafter or according to
another reasonable time frame estab-
lished by the implementing agency;
and
(2) Inspection criteria. The criteria
that are used to determine that ca-
thodic protection is adequate as re-
quired by this section must be in ac-
cordance with a code of practice devel-
oped by a nationally recognized asso-
ciation.
Note: National Association of Corrosion
Engineers Standard RP-02-85, "Control of
External Corrosion on Metallic Buried, Par-
tially Buried, or Submerged Liquid Storage
Systems," may be used to comply with para-
graph (b)(2) of this section.
(c) UST systems with impressed cur-
rent cathodic protection systems must
also be inspected every 60 days to en-
-------
Environmental Protection Agency
§280.34
sure the equipment is running prop-
erly.
(d) For UST systems using cathodic
protection, records of the operation of
the cathodic protection must be main-
tained (in accordance with §280.34) to
demonstrate compliance with the per-
formance standards in this section.
These records must provide the follow-
ing:
(1) The results of the last three in-
spections required in paragraph (c) of
this section; and
(2) The results of testing from the
last two inspections required in para-
graph (b) of this section.
§ 280.32 Compatibility.
Owners and operators must use an
UST system made of or lined with ma-
terials that are compatible with the
substance stored in the UST system.
Note: Owners and operators storing alco-
hol blends may use the following: codes to
comply with the requirements of this sec-
tion:
(a) American Petroleum Institute Publica-
tion 1626. "Storing and Handling- Ethanol and
Gasoline-Ethanol Blends at Distribution Ter-
minals and Service Stations"; and
(b) American Petroleum Institute Publica-
tion 1627, "Storage and Handling of Gasoline-
Methanol/Cosolvent Blends at Distribution
Terminals and Service Stations."
§ 280.33 Repairs allowed.
Owners and operators of UST sys-
tems must ensure that repairs will pre-
vent releases due to structural failure
or corrosion as long as the UST system
is used to store regulated substances.
The repairs must meet the following
requirements;
(a) Repairs to UST systems must be
properly conducted in accordance with
a code of practice developed by a na-
tionally recognized association or an
independent testing laboratory.
Note: The following codes and standards
may be used to comply with paragraph (a) of
this section: National Fire Protection Asso-
ciation Standard 30, "Flammable and Com-
bustible Liquids Code"; American Petroleum
Institute Publication 2200, "Repairing Crude
Oil. Liquified Petroleum Gas, and Product
Pipelines"; American Petroleum Institute
Publication 1631, "Recommended Practice
for the Interior Lining of Existing Steel Un-
derground Storage Tanks"; and National
Leak Prevention Association Standard 631,
"Spill Prevention, Minimum 10 Year Life Ex-
tension of Existing Steel Underground Tanks
by Lining Without the Addition of Cathodic
Protection."
(b) Repairs to fiberglass-reinforced
plastic tanks may be made by the man-
ufacturer's authorized representatives
or in accordance with a code of prac-
tice developed by a nationally recog-
nized association or an independent
testing laboratory.
(c) Metal pipe sections and fittings
that have released product as a result
of corrosion or other damage must be
replaced. Fiberglass pipes and fittings
may be repaired in accordance with the
manufacturer's specifications.
(d) Repaired tanks and piping must
be tightness tested in accordance with
§280.43(c) and §280.44(b) within 30 days
following the date of the completion of
the repair except as provided in para-
graphs (d) (1) through (3), of this sec-
tion:
(1) The repaired tank is internally in-
spected in accordance with a code of
practice developed by a nationally rec-
ognized association or an independent
testing laboratory; or
(2) The repaired portion of the UST
system is monitored monthly for re-
leases in accordance with a method
specified in §280.43 (d) through (h); or
(3) Another test method is used that
is determined by the implementing
agency to be no less protective of
human health and the environment
than those listed above.
(e) Within 6 months following the re-
pair of any cathodically protected UST
system, the cathodic protection system
must be tested in accordance with
§280.31 (b) and (c) to ensure that it is
operating properly.
(f) UST system owners and operators
must maintain records of each repair
for the remaining operating life of the
UST system that demonstrate compli-
ance with the requirements of this sec-
tion.
§ 280.34 Reporting and recordkeeping.
Owners and operators of UST sys-
tems must cooperate fully with inspec-
tions, monitoring and testing con-
ducted by the implementing agency, as
well as requests for document submis-
sion, testing, and monitoring by the
owner or operator pursuant to section
9005 of Subtitle I of the Resource Con-
-------
§280.40
servation and Recovery Act, as amend-
ed.
(a) Reporting. Owners and operators
must submit the following information
to the implementing agency:
(1) Notification for all UST systems
(§280.22), which includes certification
of installation for new UST systems
(§ 280.20(e)),
(2) Reports of all releases including
suspected releases (§280.50), spills and
overfills (§280.53), and confirmed re-
leases (§280.61);
(3) Corrective actions planned or
taken including initial abatement
measures (§280.62), initial site charac-
terization (§280.63), free product re-
moval (§280.64), investigation of soil
and ground-water cleanup (§280.65), and
corrective action plan (§280.66); and
(4) A notification before permanent
closure or change-in-service (§280.71).
(b) Recordkeeping. Owners and opera-
tors must maintain the following infor-
mation:
(1) A corrosion expert's analysis of
site corrosion potential if corrosion
protection equipment is not used
(§ 280.20(a)(4); §280.20(b)(3)).
(2) Documentation of operation of
corrosion protection equipment
(§280.31);
(3) Documentation of UST system re-
pairs (§ 280.33(f));
(4) Recent compliance with release
detection requirements (§280.45); and
(5) Results of the site investigation
conducted at permanent closure
(§280.74).
(c) Availability and Maintenance of
Records. Owners and operators must
keep the records required either:
(1) At the UST site and immediately
available for inspection by the imple-
menting agency; or
(2) At a readily available alternative
site and be provided for inspection to
the implementing agency upon request.
(3) In the case of permanent closure
records required under §280.74, owners
and operators are also provided with
the additional alternative of mailing
closure records to the implementing
agency if they cannot be kept at the
site or an alternative site as indicated
above.
-------
Effective Date - November 14,1995
401 KAR 42:040. Release Detection.
RELATES TO: KRS 224.10 and 224.60, 40 CFR Part 280 Subpart D and Part 281,
and 42 USC 6991c
STATUTORY AUTHORITY: KRS 224.10-100 and 224.60-105, 40 CFR Part 280
Subpart D and Part 281, and 42 USC 6991c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs that provide for the
prevention, abatement, and control of contaminants that may threaten the environment. KRS
224.60-105(2) requires the Cabinet to regulate underground storage tank (UST) systems by
requiring notification, minimum construction and performance standards, leak detection, record
keeping, release reporting, corrective action, closure, financial responsibility, and other standards
to protect public health and the environment. KRS 224.60-105(3) requires the Cabinet to establish
a regulatory program that implements federal requirements for UST systems. This chapter
identifies requirements for UST systems. This administrative regulation establishes the
requirements for release detection and record keeping for all UST systems.
Section 1. Adoption of Federal Regulations.
(1) The requirements for release detection and record keeping for UST systems are
governed by 40 CFR Part 280 Subpart D (1994).
(2) The documents incorporated by reference in Section 2 of this administrative
regulation shall be used in meeting the requirements of subsection (1) of this section.
Section 2. Incorporation by Reference.
(1) The following documents are hereby incorporated by reference:
(a) "Underground Storage Tank System Site Assessment Outline for External Release
Detection Methods (Groundwater, Vapor, and Interstitial Monitoring)" (October 1995); and
(b) "Kentucky Underground Storage Tank System (External Release Detection)
Monitoring Well Form," DEP Form 8047 (July 1995).
(2) The documents referenced in subsection (1) of this section are available for
inspection and copying, subject to copyright law, at the Underground Storage Tank Branch of the
Division of Waste Management, 14 Reilly Road, Frankfort, KY 40601, (502) 564-6716, from
8:00 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays.
Section 3. Extensions. The owner or operator of a UST system may request extension
of a time frame for any report required by this administrative regulation. The extension request
shall be submitted in writing and received by the Underground Storage Tank Branch of the
Division of Waste Management prior to the deadline. The Cabinet may grant extensions, if
warranted.
401 KAR 42:040 - 1
-------
40 CFR 280
Subpart D
-------
40 CFR Ch. I (7-1-94 Edition)
Subpart D—Release Detection
§ 280.40 General requirements for all
UST systems.
(a) Owners and operators of new and
existing UST systems must provide a
method, or combination of methods, of
release detection that:
(1) Can detect a release from any por-
tion of the tank and the connected un-
derground piping that routinely con-
tains product;
(2) Is installed, calibrated, operated,
and maintained in accordance with the
manufacturer's instructions, including
routine maintenance and service
checks for operability or running con-
dition; and
(3) Meets the performance require-
ments in §280.43 or 280.44, with any per-
formance claims and their manner of
determination described in writing by
the equipment manufacturer or in-
staller. In addition, methods used after
the date shown in the following table
corresponding with the specified meth-
od except for methods permanently in-
stalled prior to that date, must be ca-
pable of detecting the leak rate or
quantity specified for that method in
the corresponding section of the rule
(also shown in the table) with a prob-
ability of detection (Pd) of 0.95 and a
probability of false alarm (Pfa) of 0.05.
Method
Section
Date after which Pd/Pfa
must be demonstrated
Manual Tank
280.43(b)
December 22. 1990.
Gauging.

Tank Tightness
280.43(c)
December 22. 1990.
Testing.

Automatic Tank
280.43(d)
December 22. 1990.
Gauging.

Automatic Line
280.44(a)
September 22. 1991.
Leak Detec-

tors.

Line Tightness
280.44(b)
December 22, 1990.
Testing.

(b) When a release detection method
operated in accordance with the per-
formance standards in §280.43 and
§280.44 indicates a release may have oc-
curred, owners and operators must no-
tify the implementing agency in ac-
cordance with subpart E.
(c) Owners and operators of all UST
systems must comply with the release
detection requirements of this subpart
by December 22 of the year listed in the
following table:
-------
Environmental Protection Agency
SCHEDULE FOR PHASE-IN OF RELEASE
Detection
Year sys-
tem was
Year when release detection is required (by
December 22 of the year indicated)
installed
1989
1990
1991
1992
1993
Before
1965 or
date un-
known.
1965-69 :.
1970-74 ..
1975-79 ..
1980-88 ..
RD
P
P/RD
P
P
P
RD
RD
RD
New tanks (after December 22) immediately upon installa-
tion.
P.Must begin release detection for alt pressurized piping as
defined in § 280.41(b)(1).
RD-Must begin release detection tor tanks and suction pip-
ing in accordance with §280.41 (a), §280.41 (b)(2), and
§280.42.
(d) Any existing UST system that
cannot apply a method of release de-
tection that complies with the require-
ments of this subpart must complete
the closure procedures in subpart G by
the date on which release detection is
required for that UST system under
paragraph (c) of this section.
[53 FR 37194, Sept. 23, 1988, as amended at 55
FR 17753, Apr. 27. 1990; 55 FR 23738, June 12,
1990; 56 FR 26, Jan. 2,1991]
§280.41 Requirements for petroleum
UST systems.
Owners and operators of petroleum
UST systems must provide release de-
tection for tanks and piping as follows:
(a) Tanks. Tanks must be monitored
at least every 30 days for releases using
one of the methods listed in §280.43 (d)
through (h) except that:
(1) UST systems that meet the per-
formance standards in §280.20 or
§280.21, and the monthly inventory
control requirements in §280.43 (a) or
(b), may use tank tightness testing
(conducted in accordance with
§ 280.43(c)) at least every 5 years until
December 22, 1998, or until 10 years
after the tank is installed or upgraded
under § 280.21(b), whichever is later;
(2) UST systems that do not meet the
performance standards in §280.20 or
§280.21 may use monthly inventory
controls (conducted in accordance with
§ 280.43(a) or (b)) and annual tank tight-
ness testing (conducted in accordance
with §280.43(c)) until December 22, 1998
when the tank must be upgraded under
§280.42
§280.21 or permanently closed under
§280.71; and
(3) Tanks with capacity of 550 gallons
or less may use weekly tank gauging
(conducted in accordance with
§ 280.43(b)).
(b) Piping. Underground piping that
routinely contains regulated sub-
stances must be monitored for releases
in a manner that meets one of the fol-
lowing requirements:
(1) Pressurized piping. Underground
piping that conveys regulated sub-
stances under pressure must:
(1) Be equipped with an automatic
line leak detector conducted in accord-
ance with § 280.44(a); and
(ii) Have an annual line tightness
test conducted in accordance with
§ 280.44(b) or have monthly monitoring
conducted in accordance with
§ 280.44(c).
(2) Suction piping. Underground piping
that conveys regulated substances
under suction must either have a line
tightness test conducted at least every
3 years and in accordance with
§ 280.44(b), or use a monthly monitoring
method conduct in accordance with
§ 280.44(c). No release detection is re-
quired for suction piping that is de-
signed and constructed to meet the fol-
lowing standards:
(i) The below-grade piping operates
at less than atmospheric pressure;
(ii) The below-grade piping is sloped
so that the contents of the pipe will
drain back into the storage tank if the
suction is released;
(iii) Only one check valve is included
in each suction line;
(iv) The check valve is located di-
rectly below and as close as practical
to the suction pump; and
(v) A method is provided that allows
compliance with paragraphs (b)(2) (ii)-
(iv) of this section to be readily deter-
mined.
§ 280.42 Requirements for hazardous
substance UST systems.
Owners and operators of hazardous
substance UST systems must provide
release detection that meets the fol-
lowing requirements:
(a) Release detection at existing UST
systems must meet the requirements
for petroleum UST systems in §280.41.
By December 22, 1998, all existing haz-
-------
§280.43
40 CFR Ch. I (7-1-94 Edition)
ardous substance UST systems must
meet the release detection require-
ments for new systems in paragraph (b)
of this section.
(b) Release detection at new hazard-
ous substance UST systems must meet
the following: requirements:
(1) Secondary containment systems
must be designed, constructed and in-
stalled to:
(1) Contain regulated substances re-
leased from the tank system until they
are detected and removed;
(ii) Prevent the release of regulated
substances to the environment at any
time during the operational life of the
UST system; and
(iii) Be checked for evidence of a re-
lease at least every 30 days.
NOTE.—The provisions of 40 CFR 265.193,
Containment and Detection of Releases, may
be used to comply with these requirements.
(2) Double-walled tanks must be de-
signed, constructed, and installed to:
(i) Contain a release from any por-
tion of the inner tank within the outer
wall; and
(ii) Detect the failure of the inner
wall.
(3) External liners (including vaults)
must be designed, constructed, and in-
stalled to:
(i) Contain 100 percent of the capac-
ity of the largest tank within its
boundary;
(ii) Prevent the interference of pre-
cipitation or ground-water intrusion
with the ability to contain or detect a
release of regulated substances; and
(iii) Surround the tank completely
(i.e., it is capable of preventing lateral
as well as vertical migration of regu-
lated substances).
(4) Underground piping must be
equipped with secondary containment
that satisfies the requirements of para-
graph (b)(1) of this section (e.g., trench
liners, jacketing of double-walled pipe).
In addition, underground piping that
conveys regulated substances under
pressure must be equipped with an
automatic line leak detector in accord-
ance with §280.44(a).
(5) Other methods of release detec-
tion may be used if owners and opera-
tors:
(i) Demonstrate to the implementing
agency that an alternate method can
detect a release of the stored substance
as effectively as any of the methods al-
lowed in §§ 280.43(b) through (h) can de-
tect a release of petroleum;
(ii) Provide information to the imple-
menting agency on effective corrective
action technologies, health risks, and
chemical and physical properties of the
stored substance, and the characteris-
tics of the UST site; and.
(iii) Obtain approval from the imple-
menting agency to use the alternate
release detection method before the in-
stallation and operation of the new
UST system.
§ 280.43 Methods of release detection
for tanks.
Each method of release detection for
tanks used to meet the requirements of
§280.41 must be conducted in accord-
ance with the following:
(~) Inventory control. Product inven-
tory control (or another test of equiva-
lent performance) must be conducted
monthly to detect a release of at least
1.0 percent of flow-through plus 130 gal-
lons on a monthly basis in the follow-
ing manner:
(1) Inventory volume measurements
for regulated substance inputs, with-
drawals, and the amount still remain-
ing in the tank are recorded each oper-
ating day;
(2) The equipment used is capable of
measuring the level of product over the
full range of the tank's height to the
nearest one-eighth of an inch;
(3) The regulated substance inputs
are reconciled with delivery receipts by
measurement of the tank inventory
volume before and after delivery;
(4) Deliveries are made through a
drop tube that extends to within one
foot of the tank bottom;
(5) Product dispensing is metered and
recorded within the local standards for
meter calibration or an accuracy of 6
cubic inches for every 5 gallons of prod-
uct withdrawn; and
(~) The measurement of any water
level in the bottom of the tank is made
to the nearest one-eighth of an inch at
least once a month.
Note: Practices described in the American
Petroleum Institute Publication 1621, "Rec-
ommended Practice for Bulk Liquid Stock
Control at Retail Outlets," may be used,
where applicable, as guidance in meeting: the
requirements of this paragraph.
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Environmental Protection Agency
§280.43
(b) Manual tank gauging. Manual
tank gauging must meet the following
requirements:
(1) Tank liquid level measurements
are taken at the beginning and ending
of a period of at least 36 hours during
which no liquid is added to or removed
from the tank;
(2) Level measurements are based on
an average of two consecutive stick
readings at both the beginning and
ending of the period;
(3) The equipment used is capable of
measuring the level of product over the
full range of the tank's height to the
nearest one-eighth of an inch;
(4) A leak is suspected and subject to
the requirements of subpart E if the
variation between beginning and end-
ing measurements exceeds the weekly
or monthly standards in the following
table:
Nominal
tank capac-
ity
Weekly standard (one
test)
Monthly standard (av-
erage of tour tests)
550 gallons
10 gallons
5 gallons.
or less.

551-1,000
13 gallons
7 gallons.
gallons.

1,001-
26 gallons
13 gallons.
2,000

gallons.

(5) Only tanks of 550 gallons or less
nominal capacity may use this as the
sole method of release detection.
Tanks of 551 to 2,000 gallons may use
the method in place of manual inven-
tory control in §280.43(a). Tanks of
greater than 2,000 gallons nominal ca-
pacity may not use this method to
meet the requirements of this subpart.
(c) Tank tightness testing. Tank tight-
ness testing (or another test of equiva-
lent performance) must be capable of
detecting a 0.1 gallon per hour leak
rate from any portion of the tank that
routinely contains product while ac-
counting for the effects of thermal ex-
pansion or contraction of the product,
vapor pockets, tank deformation, evap-
oration or condensation, and the loca-
tion of the water table.
(d) Automatic tank gauging. Equip-
ment for automatic tank gauging that
tests for the loss of product and con-
ducts inventory control must meet the
following requirements:
(1) The automatic product level mon-
itor test can detect a 0.2 gallon per
hour leak rate from any portion of the
tank that routinely contains product;
and
(2) Inventory control (or another test
of equivalent performance) is con-
ducted in accordance with the require-
ments of § 280.43(a).
(e) Vapor monitoring. Testing or mon-
itoring for vapors within the soil gas of
the excavation zone must meet the fol-
lowing requirements:
(1) The materials used as backfill are
sufficiently porous (e.g., gravel, sand,
crushed rock) to readily allow diffusion
of vapors from releases into the exca-
vation area;
(2) The stored regulated substance, or
a tracer compound placed in the tank
system, is sufficiently volatile (e.g.,
gasoline) to result in a vapor level that
is detectable by the monitoring devices
located in the excavation zone in the
event of a release from the tank;
(3) The measurement of vapors by the
monitoring device is not rendered inop-
erative by the ground water, rainfall,
or soil moisture or other known inter-
ferences so that a release could go un-
detected for more than 30 days;
(4) The level of background contami-
nation in the excavation zone will not
interfere with the method used to de-
tect releases from the tank;
(5) The vapor monitors are designed
and operated to detect any significant
increase in concentration above back-
ground of the regulated substance
stored in the tank system, a compo-
nent or components of that substance,
or a tracer compound placed in the
tank system;
(6) In the UST excavation zone, the
site is assessed to ensure compliance
with the requirements in paragraphs
(e) (1) through (4) of this section and to
establish the number and positioning
of monitoring wells that will detect re-
leases within the excavation zone from
any portion of the tank that routinely
contains product; and
(7) Monitoring wells are clearly
marked and secured to avoid unauthor-
ized access and tampering.
(f) Ground-water monitoring. Testing
or monitoring for liquids on the ground
water must meet the following require-
ments:
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§280.43
40 CFR Ch. I (7-1-94 Edition)
(1) The regulated substance stored is
immiscible in water and has a specific
gravity of less than one;
(2) Ground water is never more than
20 feet from the ground surface and the
hydraulic conductivity of the soil(s)
between the UST system and the mon-
itoring wells or devices is not less than
0.01 cm/sec (e.g., the soil should consist
of gravels, coarse to medium sands,
coarse silts or other permeable mate-
rials);
(3) The slotted portion of the mon-
itoring well casing must be designed to
prevent migration of natural soils or
filter pack into the well and to allow
entry of regulated substance on the
water table into the well under both
high and low ground-water conditions;
(4) Monitoring wells shall be sealed
from the ground surface to the top of
the filter pack;
(5) Monitoring wells or devices inter-
cept the excavation zone or are as close
to it as is technically feasible;
(6) The continuous monitoring de-
vices .or manual methods used can de-
tect the presence of at least one-eighth
of an inch of free product on top of the
ground water in the monitoring wells;
(7) Within and immediately below the
UST system excavation zone, the site
is assessed to ensure compliance with
the requirements in paragraphs (f) (1)
through (5) of this section and to estab-
lish the number and positioning of
monitoring wells or devices that will
detect releases from any portion of the
tank that routinely contains product;
and
(8) Monitoring wells are clearly
marked and secured to avoid unauthor-
ized access and tampering.
(g) Interstitial monitoring. Interstitial
monitoring between the UST system
and a secondary barrier immediately
around or beneath it may be used, but
only if the system is designed, con-
structed and installed to detect a leak
from any portion of the tank that rou-
tinely contains product and also meets
one of the following requirements:
(1) For double-walled UST systems,
the sampling or testing method can de-
tect a release through the inner wall in
any portion of the tank that routinely
contains product;
Note: The provisions outlined in the Steel
Tank Institute's "Standard for Dual Wall
Underground Storage Tanks" may be used as
guidance for aspects of the design and con-
struction of underground steel double-walled
tanks.
(2) For UST systems with a second-
ary barrier within the excavation zone,
the sampling or testing method used
can detect a release between the UST
system and the secondary barrier;
(i) The secondary barrier around or
beneath the UST system consists of ar-
tificially constructed material that is
sufficiently thick and impermeable (at
least 10~6 cm/sec for the regulated sub-
stance stored) to direct a release to the
monitoring point and permit its detec-
tion;
(ii) The barrier is compatible with
the regulated substance stored so that
a release from the UST system will not
cause a deterioration of the barrier al-
lowing a release to pass through unde-
tected;
(iii) For cathodically protected
tanks, the secondary barrier must be
installed so that it does not interfere
with the proper operation of the ca-
thodic protection system;
(iv) The ground water, soil moisture,
or rainfall will not render the testing
or sampling method used inoperative
so that a release could go undetected
for more than 30 days;
(v) The site is assessed to ensure that
the secondary barrier is always above
the ground water and not in a 25-year
flood plain, unless the barrier and mon-
itoring designs are for use under such
conditions; and,
(vi) Monitoring wells are clearly
marked and secured to avoid unauthor-
ized access and tampering.
(3) For tanks with an internally
fitted liner, an automated device can
detect a release between the inner wall
of the tank and the liner, and the liner
is compatible with the substance
stored.
(h) Other methods. Any other type of
release detection method, or combina-
tion of methods, can be used if:
(1) It can detect a 0.2 gallon per hour
leak rate or a release of 150 gallons
within a month with a probability of
detection of 0.95 and a probability of
false alarm of 0.05; or
(2) The implementing agency may ap-
prove another method if the owner and
operator can demonstrate that the
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Environmental Protection Agency
§280.50
method can detect a release as effec-
tively as any of the methods allowed in
paragraphs (c) through (h) of this sec-
tion. In comparing methods, the imple-
menting agency shall consider the size
of release that the method can detect
and the frequency and reliability with
which it can be detected. If the method
is approved, the owner and operator
must comply with any conditions im-
posed by the implementing agency on
its use to ensure the protection of
human health and the environment.
§ 280.44 Methods of release detection
for piping.
Each method of release detection for
piping used to meet the requirements
of §280.41 must be conducted in accord-
ance with the following:
(a) Automatic line leak detectors. Meth-
ods which alert the operator to the
presence of a leak by restricting or
shutting off the flow of regulated sub-
stances through piping or triggering an
audible or visual alarm may be used
only if they detect leaks of 3 gallons
per hour at 10 pounds per square inch
line pressure within 1 hour. An annual
test of the operation of the leak detec-
tor must be conducted in accordance
with the manufacturer's requirements.
(b) Line tightness testing. A periodic
test of piping may be conducted only if
it can detect a 0.1 gallon per hour leak
rate at one and one-half times the op-
erating pressure.
(c) Applicable tank methods. Any of
the methods in §280.43 (e) through (h)
may be used if they are designed to de-
tect a release from any portion of the
underground piping that routinely con-
tains regulated substances.
§ 280.45 Release detection record-
keeping.
All UST system owners and operators
must maintain records in accordance
with §280.34 demonstrating compliance
with all applicable requirements of this
subpart. These records must include
the following:
(a) All written performance claims
pertaining to any release detection sys-
tem used, and the manner in which
these claims have been justified or
tested by the equipment manufacturer
or installer, must be maintained for 5
years, or for another reasonable period
of time determined by the implement-
ing agency, from the date of installa-
tion;
(b) The results of any sampling, test-
ing, or monitoring must be maintained
for at least 1 year, or for another rea-
sonable period of time determined by
the implementing agency, except that
the results of tank tightness testing
conducted in accordance with § 280.43(c)
must be retained until the next test is
conducted; and
(c) Written documentation of all cali-
bration, maintenance, and repair of re-
lease detection equipment permanently
located on-site must be maintained for
at least one year after the servicing
work is completed, or for another rea-
sonable time period determined by the
implementing agency. Any schedules of
required calibration and maintenance
provided by the release detection
equipment manufacturer must be re-
tained for 5 years from the date of in-
stallation.
-------
401 KAR 42:040
UNDERGROUND STORAGE TANK SYSTEM
SITE ASSESSMENT OUTLINE FOR
EXTERNAL RELEASE DETECTION METHODS
(GROUNDWATER, VAPOR AND INTERSTITIAL MONITORING)

Well Number:
Date:
Driller's Certification Number
(Groundwater Wells Only)
2. General Well Construction
Start Date : Finish Date
Release Detection Method:
Groundwater Monitorina
Vanor Monitorina:
Secondary Containment:
Installation Method:
6. Well Construction Sketch
(Attach additional sheet if needed)
Surface Elevation:
Total Denth of Well:
Death to Groundwater
Seasonal Groundwater Levels:
Tank Depth (si:
3. Well Construction Information
Feet Below Surface
From To Description
7. Site Sketch Map
(Show relation of well to UST system)
4. Backfill or Lithologic Log
From To Description
8. Facility Information
Facilitv Name:
Mailing Address:

Citv:

Phone:

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Effective Date - December 19,1990
401 KAR 42:050. Release Reporting, Investigation, and Confirmation.
RELATES TO: KRS 224.033,224.10,224.60,40 CFR Part 280 Subpart E, 40 CFR
Part 281,42 USC 6991c
STATUTORY AUTHORITY: KRS 224.10-100,224.60-105,40 CFR Part280 Subpart
E, 40 CFR Part 281,42 USC 6991 c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs which provide for the
prevention, abatement, and control of contaminants which may threaten the environment. KRS
224.60-105(2) requires the cabinet to regulate underground storage tanks by requiring notification,
minimum construction and performance standards, leak detection, recordkeeping, reporting releases,
corrective actions, closures, financial responsibility, and other requirements to protect public health
and the environment. KRS 224.60-105(3) requires the cabinet to establish a regulatory program
which implements federal requirements for underground storage tanks and to promulgate
administrative regulations for underground storage tanks which shall be submitted for approval to
the United States Environmental Protection Agency pursuant to federal regulations. This chapter
identifies requirements for underground storage tanks. This regulation establishes the requirements
for reporting of suspected releases, and investigation of off-site impacts.
Section 1. The requirements for reporting of suspected releases and investigation of
off-site impacts for underground storage tank systems are governed by 40 CFR Part 280 Subpart E
(1990).
401 KAR 42:050-1
-------
40 CFR 280
Subpart E
-------
Subpart E—Release Reporting,
Investigation, and Confirmation
§ 280.50 Reporting of suspected re-
leases.
Owners and operators of UST sys-
tems must report to the implementing
agency within 24 hours, or another rea-
sonable time period specified by the
implementing agency, and follow the
procedures in §280.52 for any of the fol-
lowing conditions:
(a) The discovery by owners and oper-
ators or others of released regulated
substances at the UST site or in the
surrounding area (such as the presence
of free product or vapors in soils, base-
ments, sewer and utility lines, and
nearby surface water).
(b) Unusual operating conditions ob-
served by owners and operators (such
as the erratic behavior of product dis-
pensing equipment, the sudden loss of
product from the UST system, or an
unexplained presence of water in the
tank), unless system equipment is
found to be defective but not leaking,
and is immediately repaired or re-
placed; and,
(c) Monitoring results from a release
detection method required under
§280.41 and §280.42 that indicate a re-
lease may have occurred unless:
-------
§280.51
40 CFR Ch. I (7-1-94 Edition)
(1) The monitoring device is found to
be defective, and is immediately re-
paired, recalibrated or replaced, and
additional monitoring does not confirm
the initial result; or
(2) In the case of inventory control, a
second month of data does not confirm
the initial result.
§280.51 Investigation due to off-site
impacts.
When required by the implementing
agency, owners and operators of UST
systems must follow the procedures in
§280.52 to determine if the UST system
is the source of off-site impacts. These
impacts include the discovery of regu-
lated substances (such as the presence
of free product or vapors in soils, base-
ments, sewer and utility lines, and
nearby surface and drinking waters)
that has been observed by the imple-
menting agency or brought to its at-
tention by another party.
§ 280.52 Release investigation and con-
firmation steps.
Unless corrective action is initiated
in accordance with subpart F, owners
and operators must immediately inves-
tigate and confirm all suspected re-
leases of regulated substances requir-
ing reporting under §280.50 within 7
days, or another reasonable time pe-
riod specified by the implementing
agency, using either the following
steps or another procedure approved by
the implementing agency:
(a) System test. Owners and operators
must conduct tests (according- to the
requirements for tightness testing in
§280.43(c) and §280.44(b)) that determine
whether a leak exists in that portion of
the tank that routinely contains prod-
uct, or the attached delivery piping, or
both.
(1) Owners and operators must repair,
replace or upgrade the UST system,
and begin corrective action in accord-
ance with subpart F if the test results
for the system, tank, or delivery piping
indicate that a leak exists.
(2) Further investigation is not re-
quired if the test results for the sys-
tem, tank, and delivery piping do not
indicate that a leak exists and if envi-
ronmental contamination is not the
basis for suspecting a release.
(3) Owners and operators must con-
duct a site check as described in para-
graph (b) of this section if the test re-
sults for the system, tank, and delivery
piping do not indicate that a leak ex-
ists but environmental contamination
is the basis for suspecting a release.
(b) Site check. Owners and operators
must measure for the presence of a re-
lease where contamination is most
likely to be present at the UST site. In
selecting sample types, sample loca-
tions. and measurement methods, own-
ers and operators must consider the na-
ture of the stored substance, the type
of initial alarm or cause for suspicion,
the type of backfill, the depth of
ground water, and other factors appro-
priate for identifying the presence and
source of the release.
(1) If the test results for the exca-
vation zone or the UST site indicate
that a release has occurred, owners and
operators must begin corrective action
in accordance with subpart F;
(2) If the test results for the exca-
vation zone or the UST site do not in-
dicate that a release has occurred, fur-
ther investigation is not required.
§ 280.53 Reporting and cleanup of
spills and overfills.
(a) Owners and operators of UST sys-
tems must contain and immediately
clean up a spill or overfill and report to
the implementing agency within 24
hours, or another reasonable time pe-
riod specified by the implementing
agency, and begin corrective action in
accordance with subpart F in the fol-
lowing cases:
(1) Spill or overfill of petroleum that
results in a release to the environment
that exceeds 25 gallons or another rea-
sonable amount specified by the imple-
menting agency, or that causes a sheen
on nearby surface water; and
(2) Spill or overfill of a hazardous
substance that results in a release to
the environment that equals or exceeds
its reportable quantity under CERCLA
(40 CFR part 302).
(b) Owners and operators of UST sys-
tems must contain and immediately
clean up a spill or overfill of petroleum
that is less than 25 gallons or another
reasonable amount specified by the im-
plementing agency, and a spill or over-
fill of a hazardous substance that is
-------
Environmental Protection Agency
less than the reportable quantity. If
cleanup cannot be accomplished within
24 hours, or another reasonable time
period established by the implementing
agency, owners and operators must im-
mediately notify the implementing
agency.
Note: Pursuant to §§302.6 and 355.40. a re-
lease of a hazardous substance equal to or in
excess of its reportable quantity must also
be reported immediately (rather than within
24 hours) to the National Response Center
under sections 102 and 103 of the Comprehen-
sive Environmental Response. Compensa-
tion, and Liability Act of 1980 and to appro-
priate state and local authorities under Title
HI of the Superfund Amendments and Reau-
thorization Act of 1986.
-------
Effective Date - November 14, 1995
401 KAR 42:060. Release Response and Corrective Action for UST Systems Containing
Petroleum or Hazardous Substances.
RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, and 224.60; 40 CFR
Part 280 Subpart F and Part 281; and 42 USC 6991c
STATUTORY AUTHORITY: KRS 224.10-100, 224.60-105, and 224.60-137; 40
CFR Part 280 Subpart F and Part 281; and 42 USC 6991c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs that provide for the
prevention, abatement, and control of contaminants that may threaten the environment. KRS
224.60-105(2) requires the Cabinet to regulate underground storage tank (UST) systems by
requiring notification, minimum construction and performance standards, leak detection, record
keeping, release reporting, corrective action, closure, financial responsibility, and other standards
to protect public health and the environment. KRS 224.60-105(3) requires the Cabinet to establish
a regulatory program that implements federal requirements for UST systems. This chapter
identifies requirements for UST systems. This administrative regulation establishes the
requirements for release response, site characterization, corrective action, and public participation.
Section 1. Adoption of Federal Regulations.
(1) The requirements for release response, site characterization, corrective action, and
public participation for UST systems are governed by 40 CFR Part 280 Subpart F (1994).
(2) The documents incorporated by reference in Section 2 of this administrative
regulation shall be used in meeting the requirements of subsection (1) of this section.
Section 2. Incorporation by Reference.
(1) The following documents are hereby incorporated by reference:
(a) "Underground Storage Tank System Site Check Outline" (October 1995);
(b) "Underground Storage Tank System Site Investigation Outline" (October 1995 );
(c) "Underground Storage Tank System Corrective Action Plan Outline" (October
1995);
(d) "Underground Storage Tank System Release Response and Initial Abatement
Requirements Outline" (October 1995); and
(e) "UST Groundwater Sample Analysis Form," DEP Form 2013 (September 5,
1995).
(2) The documents referenced in subsection (1) of this section are available for
inspection and copying, subject to copyright law, at the Underground Storage Tank Branch of the
Division of Waste Management, 14 Reilly Road, Frankfort, Kentucky 40601, (502) 564-6716,
from 8:00 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays.
401 KAR 42:060 - 1
-------
Section 3. Extensions. The owner or operator of a UST system may request
extension of a time frame for any report required by this administrative regulation. The extension
request shall be submitted in writing and received by the Underground Storage Tank Branch of
the Division of Waste Management prior to the deadline. The Cabinet may grant extensions, if
warranted.
401 KAR 42:060
-2
-------
40 CFR 280
Subpart F
-------
§280.62
Subpart F—Release Response and
Corrective Action for UST Sys-
tems Containing Petroleum or
Hazardous Substances
§ 280.60 General.
Owners and operators of petroleum or
hazardous substance UST systems
must, in response to a confirmed re-
lease from the UST system, comply
with the requirements of this subpart
except for USTs excluded under
§ 280.10(b) and UST systems subject to
RCRA Subtitle C corrective action re-
quirements under section 3004(u) of the
Resource Conservation and Recovery
Act, as amended.
§ 280.61 Initial response.
Upon confirmation of a release in ac-
cordance with §280.52 or after a release
from the UST system is identified in
any other manner, owners and opera-
tors must perform the following initial
response actions within 24 hours of a
release or within another reasonable
period of time determined by the im-
plementing agency:
(a) Report the release to the imple-
menting agency (e.g., by telephone or
electronic mail);
(b) Take immediate action to prevent
any further release of the regulated
substance into the environment; and
(c) Identify and mitigate fire, explo-
sion, and vapor hazards.
§ 280.62 Initial abatement measures
and site check.
(a) Unless directed to do otherwise by
the implementing agency, owners and
operators must perform the following
abatement measures:
(1) Remove as much of the regulated
substance from the UST system as is
necessary to prevent further release to
the environment;
(2) Visually inspect any aboveground
releases or exposed belowgTound re-
leases and prevent further migration of
the released substance into surround-
ing soils and ground water;
(3) Continue to monitor and mitigate
any additional fire and safety hazards
posed by vapors or free product that
have migrated from the UST exca-
vation zone and entered into sub-
surface structures (such as sewers or
basements);
(4) Remedy hazards posed by con-
taminated soils that are excavated or
exposed as a result of release confirma-
tion, site Investigation, abatement, or
corrective action activities. If these
remedies include treatment or disposal
of soils, the owner and operator must
comply with applicable State and local
requirements;
(5) Measure for the presence of a re-
lease where contamination is most
likely to be present at the UST site,
unless the presence and source of the
release have been confirmed in accord-
ance with the site check required by
§ 280.52(b) or the closure site assess-
ment of § 280.72(a). In selecting sample
types, sample locations, and measure-
ment methods, the owner and operator
must consider the nature of the stored
substance, the type of backfill, depth
to ground water and other factors as
appropriate for identifying the pres-
ence and source of the release; and
(6) Investigate to determine the pos-
sible presence of free product, and
begin free product removal as soon as
practicable and in accordance with
§280.64.
(b) Within 20 days after release con-
firmation, or within another reason-
able period of time determined by the
implementing agency, owners and oper-
ators must submit a report to the im-
plementing agency summarizing the
initial abatement steps taken under
-------
§280.63
40 CFR Ch. I (7-1-94 Edition)
paragraph (a) of this section and any
resulting information or data.
§ 280.63 Initial site characterization.
(a) Unless directed to do otherwise by
the implementing agency, owners and
operators must assemble information
about the site and the nature of the re-
lease, including information gained
while confirming the release or com-
pleting the initial abatement measures
in §§280.60 and 280.61. This information
must include, but is not necessarily
limited to the following':
(1) Data on the nature and estimated
quantity of release;
(2) Data from available sources and/
or site investigations concerning the
following factors: surrounding popu-
lations, water quality, use and approxi-
mate locations of wells potentially af-
fected by the release, subsurface soil
conditions, locations of subsurface sew-
ers, climatological conditions, and land
use;
(3) Results of the site check required
under §280.62(aX5); and
(4) Results of the free product inves-
tigations required under §280.62(aX6),
to be used by owners and operators to
determine whether free product must
be recovered under §280.64.
(b) Within 45 days of release con-
firmation or another reasonable period
of time determined by the implement-
ing agency, owners and operators must
submit the information collected in
compliance with paragraph (a) of this
section to the implementing agency in
a manner that demonstrates its appli-
cability and technical adequacy, or in a
format and according to the schedule
required by the implementing agency.
§ 280.64 Free product removal.
At sites where investigations under
§ 280.62(a)(6) indicate the presence of
free product, owners and operators
must remove free product to the maxi-
mum extent practicable as determined
by the implementing agency while con-
tinuing, as necessary, any actions ini-
tiated under §§280.61 through 280.63, or
preparing for actions required under
§§280.65 through 280.66. In meeting the
requirements of this section, owners
and operators must:
(a) Conduct free product removal in a
manner that minimizes the spread of
contamination into previously
uncontaminated zones by using recov-
ery and disposal techniques appro-
priate to the hydrogeologic conditions
at the site, and that properly treats,
discharges or disposes of recovery by-
products in compliance with applicable
local. State and Federal regulations;
(b) Use abatement of free product mi-
gration as a minimum objective for the
design of the free product removal sys-
tem;
(c) Handle any flammable products in
a safe and competent manner to pre-
vent fires or explosions; and
(d) Unless directed to do otherwise by
the implementing agency, prepare and
submit to the implementing agency,
within 45 days after confirming a re-
lease, a free product removal report
that provides at least the following in-
formation:
(1) The name of the person(s) respon-
sible for implementing the free product
removal measures;
(2) The estimated quantity, type, and
thickness of free product observed or
measured in wells, boreholes, and exca-
vations;
(3) The type of free product recovery
system used;
(4) Whether any discharge will take
place on-site or off-site during the re-
covery operation and where this dis-
charge will be located;
(5) The type of treatment applied to,
and the effluent quality expected from,
any discharge;
(6) The steps that have been or are
being taken to obtain necessary per-
mits for any discharge; and
(7) The disposition of the recovered
free product.
§280.65 Investigations for soil and
ground-water cleanup.
(a) In order to determine the full ex-
tent and location of soils contaminated
by the release and the presence and
concentrations of dissolved product
contamination in the ground water,
owners and operators must conduct in-
vestigations of the release, the release
site, and the surrounding area possibly
affected by the release if any of the fol-
lowing conditions exist:
(1) There is evidence that ground-
water wells have been affected by the
release (e.g., as found during release
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Environmental Protection Agency
§280.67
confirmation or previous corrective ac-
tion measures);
(2) Free product is found to need re-
covery in compliance with §280.64;
(3) There is evidence that contami-
nated soils may be in contact with
ground water (e.g., as found during
conduct of the initial response meas-
ures or investigations required under
§§280.60 through 280.64); and
(4) The implementing agency re-
quests an investigation, based on the
potential effects of contaminated soil
or ground water on nearby surface
water and ground-water resources.
(b) Owners and operators must sub-
mit the information collected under
paragraph (a) of this section as soon as
practicable or in accordance with a
schedule established by the implement-
ing agency.
§ 280.66 Corrective action plan.
(a) At any point after reviewing the
information submitted in compliance
with §§280.61 through 280.63, the imple-
menting agency may require owners
and operators to submit additional in-
formation or to develop and submit a
corrective action plan for responding
to contaminated soils and ground
water. If a plan is required, owners and
operators must submit the plan accord-
ing to a schedule and format estab-
lished by the implementing agency. Al-
ternatively. owners and operators may,
after fulfilling the requirements of
§§280.61 through 280.63. choose to sub-
mit a corrective action plan for re-
sponding to contaminated soil and
ground water. In either case, owners
and operators are responsible for sub-
mitting a plan that provides for ade-
quate protection of human health and
the environment as determined by the
implementing agency, and must mod-
ify their plan as necessary to meet this
standard.
(b) The implementing agency will ap-
prove the corrective action plan only
after ensuring that implementation of
the plan will adequately protect human
health, safety, and the environment. In
making this determination, the imple-
menting agency should consider the
following factors as appropriate:
(1) The physical and chemical charac-
teristics of the regulated substance, in-
cluding its toxicity, persistence, and
potential for migration;
(2) The hydrogeologic characteristics
of the facility and the surrounding
area;
(3) The proximity, quality, and cur-
rent and future uses of nearby surface
water and ground water;
(4) The potential effects of residual
contamination on nearby surface water
and ground water;
(5) An exposure assessment; and
(6) Any information assembled in
compliance with this subpart.
(c) Upon approval of the corrective
action plan or as directed by the imple-
menting agency, owners and operators
must implement the plan, including
modifications to the plan made by the
implementing agency. They must mon-
itor, evaluate, and report the results of
implementing the plan in accordance
with a schedule and in a format estab-
lished by the implementing agency.
(d) Owners and operators may, in the
interest of minimizing environmental
contamination and promoting more ef-
fective cleanup, begin cleanup of soil
and ground water before the corrective
action plan is approved provided that
they:
(1) Notify the implementing agency
of their intention to begin cleanup;
(2) Comply with any conditions im-
posed by the implementing agency, in-
cluding halting cleanup or mitigating
adverse consequences from cleanup ac-
tivities; and
(3) Incorporate these self-initiated
cleanup measures in the corrective ac-
tion plan that is submitted to the im-
plementing agency for approval.
§ 280.67 Public participation.
(a) For each confirmed release that
requires a corrective action plan, the
implementing agency must provide no-
tice to the public by means designed to
reach those members of the public di-
rectly affected by the release and the
planned corrective action. This notice
may include, but is not limited to, pub-
lic notice in local newspapers, block
advertisements, public service an-
nouncements, publication in a state
register, letters to individual house-
holds, or personal contacts by field
staff.
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§260.70
40 CFR Ch. I (7-1-94 Edition)
(b) The implementing agency must
ensure that site release information
and decisions concerning the corrective
action plan are made available to the
public for inspection upon request.
(c) Before approving a corrective ac-
tion plan, the implementing agency
may hold a public meeting to consider
comments on the proposed corrective
action plan if there is sufficient public
interest, or for any other reason.
(d) The implementing agency must
give public notice that complies with
paragraph (a) of this section if imple-
mentation of an approved corrective
action plan does not achieve the estab-
lished cleanup levels in the plan and
termination of that plan is under con-
sideration by the implementing agen-
cy.
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401 KAR 42:060
UNDERGROUND STORAGE TANK SYSTEM
SITE CHECK OUTLINE

Total Lead
SW-846 7420, 7421, or
6010
<50 ppm or less than
established background
New Oil
PAH
Method 3540 or 3550 in
conjunction with SW-846 8100,
8270, or 8310
Ch: <15 ppm
B(a)A: <0.15 ppm
c PAH: <0.3 ppm
n PAH: <3.0 ppm
NAP: < 1.0 ppm
Other Petroleum or
Non-Petroleum
Contact the
UST Branch

Total Lead
SW-846 7420, 7421, or
6010
< 50 ppm or less than
established background
New Oil
PAH
Method 3540 or 3550 in
conjunction with SW-846 8100,
8270, or 8310
Ch: <15 ppm
B(a)A: <0.15 ppm
c PAH: <0.3 ppm
n PAH: <3.0 ppm
NAP: <1.0 ppm
Other Petroleum or
Non-Petroleum
Contact the
UST Branch

Total Lead
SW-846 7420, 7421, or 6010
<0.015 ppm or less than
established background
New Oil
c PAH
n PAH
NAP
Method 3510 or 3520 in
conjunction with SW-846
8100, 8270, 8310
c PAH: <0.005 ppm
n PAH: <3.0 ppm
NAP: <0.3 ppm
Other Petroleum or
Non-Petroleum
Contact the
UST Branch

NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET
DIVISION OF WASTE MANAGEMENT
UNDERGROUND STORAGE TANK BRANCH
14 REILLY ROAD
FRANKFORT, KENTUCKY 40601
(502) 564-6716
(800) 928-4273
October, 1995
The Natural Resources and Environmental Protection Cabinet does not discriminate on the basis
of color, national origin, sex, age, religion, or disability. Upon request, the cabinet provides
reasonable accommodations including auxiliary aids and services necessary to afford an
individual with a disability an equal opportunity to participate in all services, programs, and
activities.
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UNDERGROUND STORAGE TANK SYSTEM
CORRECTIVE ACTION PLAN OUTLINE
Natural Resources and Environmental Protection Cabinet
Division of Waste Management
Underground Storage Tank Branch
14 Reilly Road
Frankfort, Kentucky 40601
(502) 564-6716
(800)928-4273
INTRODUCTION
This document shall be used by owners and operators that are required to develop and implement
a corrective action plan (CAP) under Kentucky Administrative Regulations 401 KAR 42:060. This outline
applies to owners and operators that have submitted a Notice of Intent to Permanently Close USTs Form
(DEP5025/07/95) or have reported a release to the Cabinet on or after January 1, 1996. Owners and
operators shall submit a CAP upon acceptance of the site investigation as complete by the Division of Waste
Management.
Two (2) copies of the CAP shall be submitted within forty-five (45) days of the date of receipt of the
notice of the acceptance of the site investigation by the Division of Waste Management.
The purpose of the CAP is to outline the proposal for remediation of contaminated soils, air, surface
water, sediment groundwater, or bedrock impacted by the release of a regulated substance from a regulated
UST system. The CAP shall be designed to reduce target chemical constituents to the allowable levels
established for the site in the Facility Classification Outline, incorporated by reference in 401 KAR 42:080.
This Corrective Action Plan Outline is provided to assist owners and operators in choosing remediation options
that are appropriate to the geological and hydrogeological conditions at the site, within the context of the type
and extent of contamination present at the site, and in determining whether the remediation options proposed
are appropriate for meeting the allowable levels for target chemical constituents established for the site. For
terms not defined herein, the definitions in 401 KAR 42:005 shall apply.
The CAP shall be, at a minimum, a conceptual plan of the proposed remediation system. This
conceptual plan, shall address the following issues of concern:
the physical and chemical characteristics of the regulated substance, including its toxicity,
persistence, and potential for migration;
* the geologic and hydrogeologic characteristics of the site and the surrounding area;
* the physical characteristics of all impacted and potentially impacted media at and surrounding
the site, including soils, groundwater, surface water, sediment, air, and bedrock;
* the full extent of contamination in all impacted media;
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* how the proposed corrective action will remediate the entire extent of contamination to the
established site-specific clean up levels, including all media potentially impacted by the
release or the remediation;
* a proposed time table for the corrective action, including the anticipated time to achieve
compliance;
* the potential effects of residual contamination on nearby surface water and groundwater;
* any exposure assessment conducted;
* any information assembled in compliance with the Corrective Action Plan Outline;
* any other requirements as detailed herein.
All technical issues related to the proposed remediation technology shall be addressed in the CAP
"As built" plans are not required to be submitted with the CAP.
Presumption of Acceptability of the CAP
Once the site investigation for a facility is determined by the Cabinet to be complete, a CAP is required
to be submitted to the Cabinet within forty-five (45) days of receipt of the letter of acceptance of the site
investigation by the Cabinet. If the Cabinet has not made a final determination as to the acceptability of the
CAP within ninety (90) days of the receipt of the CAP by the UST Branch it shall be presumed that the CAP
is acceptable to the Cabinet, and the CAP shall be implemented. This section does not apply to CAPs
proposing "Risk Assessment" or "Monitoring Only" as a remedial option. Nothing in this section shall exclude
the facility from the requirements for Public Notice, Notification of implementation of the CAP, submission of
the "As Built" Plan, Monitoring Requirements, Closure Plan Requirements, Quarterly Reports, or any other
requirements of the Corrective Action Plan Outline. Nor does this preclude the possibility that the Cabinet may
impose additional requirements subsequent to the presumption of acceptability. Nothing in this section shall
relieve any person of any obligations imposed by law during an environmental emergency, nor shall it require
the Cabinet to approve or accept a proposal which would violate any statute or administrative regulation. The
presumption of acceptability applies only to corrective action plans that have been requested by the Cabinet.
Notification of Implementation of the CAP
Owners or operators shall begin implementation of the CAP within thirty (30) days of the date of
acceptance of the CAP by the Cabinet The Cabinet shall be informed in writing of the owner's or operator's
intent to implement the CAP at least seven (7) days prior to implementation.
Public Notice Requirement
Prior to the implementation of the CAP the owner or operator shall give notice of the proposed action
by publishing at least one time, a Public Notice in a newspaper having general circulation in the county where
the corrective action is to take place. One (1) copy of the invoice and two (2) copies of an affidavit of
publication shall be submitted to the Cabinet within seven (7) days of the publication. An example of the
Public Notice that shall be completed and published is included at the end of this outline.
"As Built" Plan Requirement
Within one hundred twenty (120) days of the date of acceptance of the CAP by the Cabinet and after
installation of the remediation system two (2) copies of the "As Built" plan shall be submitted to the Division.
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The "As Built" Plan shall contain all relevant technical information concerning the remediation, including:
* all equipment specifications;
site maps indicating the location of all related remediation equipment (all maps shall be to
scale and shall include a north arrow and a legend);
* the position of the remediation equipment relative to the extent of contamination;
* copies of required permits; and
* any other relevant technical information or other information required by the CAP Outline.
Monitoring Requirements
* Quarterly Reporting Requirements
Once the CAP has been implemented owners or operators shall submit a quarterly report of the
corrective action activities within thirty (30) days after the close of each calendar quarter. The first quarterly
monitoring report shall be submitted within one hundred twenty (120) days of the date of the acceptance of
the CAP. The reports will be required until the site is closed by the issuance of a closure letter from the
Cabinet. These quarterly reports shall include, but are not limited to, the following information: a site map with
sampling locations indicated sample results, chain of custody documentation, monitoring data, liquid level
data, system performance evaluations, discussion of any trends in data and/or performance, and any actions
relating to the implementation of the corrective action. Note that, unless installed by a certified monitoring well
driller in accordance with 401 KAR 6:310, piezometers shall not be used for the extraction of groundwater for
any sampling purpose.
* Groundwater Sample Analysis Form
Facilities required to remediate or monitor groundwater shall submit to the Cabinet the results of all
groundwater sample analyses using the UST Groundwater Sample Analysis Form (DEP2013 9/5/95). The
first quarterly monitoring report shall be submitted within one hundred twenty (120) days of the date of the
acceptance of the CAP. Additional groundwater monitoring reports are required to be submitted with the
quarterly report thereafter.
* Monitoring System Performance
Two (2) copies of a system performance monitoring plan shall be submitted to the Cabinet that
outlines how the performance of the remediation system is to be evaluated. In addition, a time table outlining
benchmarks for remediation shall be presented in the CAP (if applicable).
Closure Plan Requirements
Two (2) copies of a Closure Plan shall be submitted to the Cabinet outlining the procedure used in
determining that all remedial goals have been met for this site, and that any residual contamination is below
the levels established for the site. The Closure Plan shall be submitted to the Cabinet within one hundred
twenty (120) days of the last quarterly monitoring report indicating that residual levels of contamination have
met the requirements for this site as outlined in the Site Facility Classification Outline for at least four (4)
quarters. The Closure Plan shall include, at a minimum, four (4) quarters of clean groundwater samples from
representative assessment wells, obtained after the corrective action system has been inactive (if applicable),
3
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and confirmatory soil samples of the extent and perimeter of the previously delineated area of contamination.
The type(s) of remedial system(s) being used shall be considered in developing the Closure Plan. In addition,
temporal and geographic variations in site conditions must be accounted for in the proposed Closure Plan.
The Cabinet may deny or revoke acceptance of the corrective action plan for any UST facility because
of incompleteness of the CAP, or the failure of the owner or operator to demonstrate that the proposed
corrective action is appropriate, or the failure to demonstrate that the proposed corrective action will achieve
clean-up goals established for the site, or the failure to demonstrate that the proposed corrective action will
adequately protect human health, safety, and the environment.
Pursuant to 401 KAR 42:060 which incorporates 40 CFR 280.66 by reference, owners and operators
may, in the interest of minimizing environmental contamination and promoting more effective cleanup, begin
cleanup of soil and groundwater before the CAP is accepted provided that the UST Branch is notified in writing
of the intention to begin cleanup. The UST Branch may impose conditions on the implementation of the
interim actions. Owners and operators should be aware that certain types of corrective action, or a lack of
remedial measures, may distribute the contamination or allow it to migrate into areas that were not previously
effected by the release.
Pursuant to KRS 322 and KRS 322(A) any work constituting the public practice of engineering or
geology, including the development and implementation of the corrective action plan, shall be completed by
a Professional Engineer (P.E.) registered with the Kentucky Board of Registration for Professional Engineers
and Land Surveyors, or a Professional Geologist (P.G.) registered with the Kentucky Board of Registration
for Professional Geologists and the attached affidavit signed by same.
This outline provides a general format for preparing a corrective action plan. Some sites and some
corrective action remediation technologies have unique features that may require additional information. The
intent of this outline is to provide the minimum requirements for a CAP.
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PART I.
CORRECTIVE ACTION PLAN OUTLINE: GENERAL REQUIREMENTS
If the information required below has previously been submitted to the Division of Waste Management
(e.g. in the Site Investigation and Closure Assessment reports, or other reports) this same information is not
required to be resubmitted. The location of the information previously submitted (i.e. the name and date of
the report, and the page numbers where the relevant information is located) shall be indicated in the CAP and
on the CAP checklist.
1.0 SITE IDENTIFICATION AND LOCATION
1.1 Provide the site name, location, and the UST facility identification number.
1.2 Provide a topographic map depicting the location of the site. The map shall also indicate the
surrounding properties and the nearest town, city, or community. Provide the USGS
topographic quadrangle name in which the site is located.
1.3 Provide a detailed, site-specific map. The site map shall include a scale, north arrow, and
legend. The site map shall illustrate tank and piping locations, the location and depth of all
tank pits, the locations of property boundaries, adjacent properties and their land use, as well
as other pertinent features. The estimated boundaries of the contamination shall be identified
on the site map. The map shall also include any underground utility trenches, indicating the
type of service and the depth of the trench. Site maps shall include all sampling locations,
all monitoring locations (including groundwater, surface water, sediment, and air), the
locations of all parts of any existing or proposed remediation system(s) including extraction
wells, infiltration galleries, injection points, sparge nodes, soil vents, trenches, piping, pumps,
scrubbers, separators, electrical conduits, or other equipment pertinent to the remediation
system(s).
1.4 Provide the latitude and longitude for the site.
1.5 Provide original site photographs with descriptive captions, including features pertinent to the
remediation activities at the site, in the original CAP report submitted to the Cabinet The use
of color photocopies of the original photographs will be acceptable in any additional copies
of the CAP report required to be submitted.
1.6 Provide information on local population demographics of the area around the site, including
information regarding land use on site and in the immediate surrounding area.
2.0 SITE HISTORY
2.1 Provide the location of the property including the street address, city, and county.
2.2 Provide the facility owner's name, address, and telephone number.
2.3 Provide the facility operator's and the property owner's name, address, and telephone
number, if different than the facility owner's.
2.4 Provide a summary of all commercial and private activities that have been conducted at the
site.
2.5 Provide a chronological description of all investigatory and corrective action work conducted
to date.
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2.6 Provide a summary of the climatological conditions from available sources (e.g. The United
States Department of Agriculture Soil Conservation Service's Soil Survey for counties in
Kentucky) for the site.
3.0 UNDERGROUND STORAGE TANK SYSTEM(S) HISTORY
3.1 Provide the age and size of all past and present underground storage tank systems at the
site, the types of product(s) currently and previously contained in each system, the type of
material of which all tanks and piping are constructed, the date tanks were last in operation,
the conditions of all tanks and piping if they were removed, the dates of the tank and piping
removals, any systems repair history, and the date of discovery of any release.
3.2 Provide a copy of leak detection records for the three (3) months prior to the discovery of the
release or the discontinued use of tanks or piping, whichever is applicable. Present this
information in a table format. If records are not available, a written explanation shall be
submitted
4.0 SUMMARY OF SITE INVESTIGATION(S)
4.1 Provide the date(s) of any regulated substance release(s), or the date(s) of the discovery of
any such release(s), and the type and amount of product released.
4.2 Provide a summary of any emergency situations that have occurred as a result of the release
of a regulated substance, such as fumes in homes, businesses, sewers, caves, etc., drinking
water wells or lines impacted, explosions, fires, or any other emergency requiring a response.
If ERT report(s) were filed relating to this release, summarize and provide the ERT numbers
for each report.
4.3 Provide a description of the contaminants present and assess the degree of weathering of
the product, if possible. The description shall include color and odor of contamination
encountered, and shall include analytical profiles of the constituents of the contamination, if
available.
4.4 Provide a summary of any actions taken to abate the release, methods used for free product
recovery, and the amount of free product recovered.
4.5 Provide a description of methods currently being used to control migration of the contaminant
plume(s).
4.6 Provide a summary of the results of the site investigation. This summary shall include a
detailed map of the site illustrating the local topography and indicating the locations of
sampling points, borings, and monitoring wells, and indicating groundwater flow direction, if
applicable. A summary of lab and field sample analyses and "quality assurance/quality
control" (QA/QC) data shall also be submitted.
4.7 Provide a map and cross sections constructed from soil borings and/or monitoring well
borings, illustrating the horizontal and vertical contaminant gradients (e.g. isochem contours)
at the site.
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5.0 ADDITIONAL SITE CHARACTERIZATION
5.1 Provide a summary of any other physical, chemical, or biological data obtained as part of the
site investigation, for example, soil porosity and permeability data, soil moisture data, soil gas
data (e.g. C02,02, H2S), physicochemical data (e.g. pH, Eh, soil and groundwater microbe
enumeration studies, biomass calculations, or other information gathered that may be
applicable, or necessary, for individual corrective action technology applications at the site.
5.2 Provide the results of any pumping tests, slug tests, or other aquifer tests conducted to
characterize the groundwater at this site.
5.3 Provide the results of any other tests or analyses conducted to define the horizontal and
vertical extent of contamination or to further characterize the site in order to determine the
applicability or practicality of any specific remediation technology.
6.0 SOIL AND GROUNDWATER REMEDIAL OBJECTIVES
6.1 Provide the applicable proposed cleanup levels for soils at the site. These target levels shall
be based on levels specified in the Division of Waste Management's Facility Classification
Outline. Include a completed, signed, and dated copy of the Facility Classification Guide,
indicating the Class and soil cleanup levels under which this site shall achieve closure (if
applicable).
6.2 Provide the applicable cleanup levels for groundwater as determined from the Groundwater
Worksheet in the Division of Waste Management's Facility Classification Outline,
Groundwater Worksheet, incorporated in 401 KAR 42:080.
7.0 COMPARATIVE TECHNOLOGIES AND CORRECTIVE ACTION
7.1 Provide a summary of any alternative technologies given preliminary consideration for
remediation at this site. The summary shall include a discussion of the applicability of the
remediation considered, the treatability of the contaminants at the site given the contaminant
and site conditions, the potential effectiveness of each technology given consideration, and
why each technology was rejected as an alternative.
7.2 Provide a summary of any cost-effectiveness studies conducted on technologies given
consideration as well as for selected technologies.
7.3 Include summaries of any pilot tests conducted for technologies given consideration but not
selected in section 9.2. Data for pilot tests shall be submitted in an appendix.
8.0 SELECTED TECHNOLOGIES AND CORRECTIVE ACTION
8.1 Provide a summary of the technology (or technologies) selected for remediation at the facility
and include a discussion of the criteria used to select this technology (e.g. time required for
the treatment, ability to achieve cleanup levels).
8.2 Provide a schematic summary of the design and operation of the selected technology
including a description of equipment, operating and monitoring requirements, and methods
used to control discharges of air and/or water. This is intended to be a working conceptual
plan and not an "as built" plan.
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9.0 PILOT STUDIES
9.1 Provide a summary of the results of any pilot studies conducted, or models constructed, for
any technology that was selected for site remediation, including field or laboratory data
demonstrating that the technology can be expected to result in cleanup of the contamination.
Data for pilot studies shall be provided in an appendix.
9.2 Provide a summary of the results of any pilot tests conducted on other technologies not
selected for remediation at the site, which shall include field or laboratory data demonstrating
why that technology cannot effectively reduce contaminant concentrations at the site to
maximum allowable contaminant levels in soil and groundwater. Data for pilot studies shall
be provided in an appendix.
10.0 MONITORING PLAN AND TIME TABLE FOR REMEDIATION AND CLOSURE
10.1 Provide a monitoring plan that shall include:
a) a description of the parameters in soil and/or groundwater to be sampled (e.g.
contaminant concentrations, soil-gas, soil pore-water and groundwater chemistries
such as pH, Eh, 02, COD) or other methods for determining corrective action
efficacy at the site;
b) the locations of sampling points (e.g. monitoring wells, soil borings, soil gas surveys)
that will be used to determine the location of and the extent of the contaminant
plume(s), and the levels and activity within the contaminant plume;
c) a schedule for sampling selected parameters, including target contaminant
concentrations, on a frequency sufficient to determine changes in contaminant levels
and potential or real plume migration; at a minimum, required monitoring shall be
conducted on a quarterly basis;
d) pursuant to 40 CFR 260.11, recognized methods in accordance with US EPA SW-
846. These methods shall be followed for sample collection, sample preservation,
sampling equipment, decontamination procedures, sample containers, sample size,
maximum sample holding times, and sample analysis methods. Samples shall be
delivered to an appropriate materials testing laboratory for the analysis required.
The date the sample was collected, received, and analyzed by the laboratory, as well
as all the US EPA SW-846 methods used to extract and analyze the sample, shall
be indicated on the laboratory report. Refer to the Site Investigation Outline,
incorporated by reference in 401 KAR 42:060, for the appropriate maximum
acceptable reporting limits for target chemical constituent analytes.
e) chain-of-custody procedures. These procedures shall be followed to ensure the
validity of all samples. The monitoring plan shall include the submittal of the chain-
of-custody documentation that identifies who has had possession of the sample, the
time of possession, and where the sample has been from the time it was collected
until the laboratory accepts it. If the chain-of-custody is not maintained, e.g. if
someone leaves a sample unattended, the integrity of the sample is compromised.
The chain-of-custody shall follow all US EPA SW-846 requirements and shall be
attached to all sample analyses results submitted;
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f) a plan of action if the plume is determined to have migrated beyond predetermined
limits during corrective action and monitoring activity; and
g) a proposed time table for remediation, including proposed benchmarks delineating
progress toward achieving the clean-up goals established for the facility.
10.2 Provide estimates of the rate of contaminant recovery expected from soil and/or groundwater
based on pilot studies, mass balance projections, comparative analysis, or other available
information. Tabulations and calculations performed to make these estimates shall be
provided in an appendix.
10.3 Submit to the Division of Waste Management the first monitoring report within 120 days of
the date of issuance of a letter by the Division notifying the owner or operator of the
acceptance of the CAP. Monitoring reports are to be submitted minimally, on a quarterly
basis.
11.0 CLOSURE PLAN
A closure plan shall be submitted that consists of sampling soil and groundwater and
analyzing for the target contaminants in a manner sufficient to ensure that all previously
contaminated soils and groundwater are below the maximum allowable contaminant
concentration levels established for this site in accordance with 401 KAR 42:080 and that any
potentially impacted soils and/or groundwater have been sufficiently sampled to ensure that
no secondary contamination has occurred due migration of contamination and/or the
production of daughter products. The closure plan shall also demonstrate that all monitor
wells that will not be used for post-closure monitoring have been properly abandoned, upon
closure, according to 401 KAR 6:310.
12.0 WASTE HANDLING, DISCHARGE, AND DISPOSAL
12.1 Provide copies of any discharge permits (or applications, or a plan to submit any required
permits) required to perform the proposed corrective action(s), including pollution control
permits, permits to discharge water to a local sewer, a local stream, or other body of water
(Kentucky Pollutant Discharge Elimination System (KPDES)). Also, outline all anticipated
discharge and disposal activities as a result of corrective action for this site.
12.2 Provide a plan for the proper disposal of any contaminated soils, residual tank materials,
carbon filtration materials, residual waters, absorbent materials, or other materials generated
as a function of the corrective action that require proper disposal.
12.3 Provide a plan to submit all disposal receipts and manifests (if applicable) for all material
generated and disposed of during remedial activities and/or monitoring.
13.0 OFF-SITE ACCESS
Provide copies of signed contracts or other memoranda of agreement for permission to
access and perform corrective actions on properties other than the property owned by the
owner or operator of the underground storage tank system in consideration.
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14.0 HEALTH AND SAFETY
Provide a copy of the standard operating health and safety plan to be followed through the
course of the corrective action for the facility.
15.0 TECHNOLOGY-SPECIFIC CHECKLISTS AND CERTIFICATION AFFIDAVITS
15.1 Complete and submit all relevant checklist(s) and required information, specific to each
technology, to be used as part or all of the remediation activities at the site.
15.2 Submit the certification affidavit to be completed, signed, stamped, and dated by the
registered Professional Geologist (P.G.) or registered Professional Engineer (P.E.) certifying
the corrective action plan and the information contained therein.
15.3 Submit the completed affidavit to be signed by the owner or operator and notarized.
16.0 PUBLIC NOTICE AND AFFIDAVIT, NOTIFICATION OF IMPLEMENTATION
16.1 The CAP shall include a plan to publish a public notice of the proposed corrective action,
upon acceptance of the CAP by the Cabinet. The CAP shall include a plan to publish the
public notice of proposed corrective action in a newspaper with general circulation in the
county where the remediation is to take place, and shall include a plan to submit one copy
of the invoice for publication, and two copies of an affidavit of publication to the Cabinet within
seven days of the date of publication.
16.2 The CAP shall include a plan to submit to the Cabinet, in writing, a letter stating the intent of
the owner or operator to implement the CAP that has been accepted by the Cabinet or has
been presumed to be acceptable to the Cabinet
17.0 "AS BUILT PLAN
The CAP shall include a plan to submit to the Cabinet within one hundred twenty (120) days
of the date of acceptance of the CAP by the Cabinet and after installation of the remediation
system, an "As Built" Plan that includes all remediation and related equipment specifications,
a site map indicating the location of the remediation equipment relative to the extent of
contamination, copies of required permits, and any other relevant technical information.
18.0 SUBMITTAL OF THE CORRECTIVE ACTION PLAN
Two (2) copes of the CAP, including all relevant information and completed checklists, an
affidavit signed by the owner or operator, the signed professional certification, and a copy of
the public notice and two (2) copies of the affidavit of publication, shall be submitted within
forty-five (45) days of the date of acceptance of the site investigation by the Division of Waste
Management.
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FINAL CORRECTIVE ACTION PLAN (CAP) REVIEW CHECKLIST (page 1)
The Final Corrective Action Plan Review Checklist is intended to aid the owner or operator and
consultant in determining whether all the information required in the CAP is present. In addition, the intent of
this checklist is to expedite review of the CAP by the UST Branch. If the information required below has
previously been submitted to the Division of Waste Management (e.g. in the Site Investigation and Closure
Assessment reports, or other reports) this same information is not required to be resubmitted. The location
of the information previously submitted (i.e. the name and date of the report, and the page numbers where
the relevant information is located) shall be indicated in the CAP and on the CAP checklist.
Site Name County,
Location UST ID #
Instructions:
Indicate the page number next to the item included in the CAP report. Address any items not checked in the
body of the report within the specific section. The complete checklist shall be submitted with each copy of the
final report in order to expedite review of the corrective action plan.
Page # 1.0 SITE IDENTIFICATION AND LOCATION
1.1 Site name, location, and the UST facility identification number.
1.2 Site topographic map for exact location of the site (including a scale, a north arrow, legend,
USGS quadrangle name, etc).
1.3 Detailed, site-specific map(s) for site location and information regarding the site (including
scale, north arrow, legend, and locations of all pertinent features).
1.4 The latitude and longitude for site.
1.5 Original site photographs with descriptive captions.
1.6 Information on populations and land use for the site and the surrounding area.
2.0 SITE HISTORY
2.1 Site street address, city and county.
2.2 Tank owner's name, address and telephone number.
2.3 Facility operator's and property owner's name, address, and telephone number.
2.4 Summary of commercial and private activities at the site.
2.5 Chronological description of all investigatory and corrective action work conducted to date.
2.6 Climatological conditions.
3.0 UNDERGROUND STORAGE TANK HISTORY
3.1 Underground storage tank and piping information (all tanks past/present, age, size, contents,
construction materials, tank and piping removal/upgrade dates, leak discovery date, repair
history, etc.).
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FINAL CORRECTIVE ACTION PLAN (CAP! REVIEW CHECKLIST (page 2)
3.2 Leak detection records for three (3) months prior to the release.
4.0 SUMMARY OF SITE INVESTIGATIONS
4.1 Date of any release or release discovery, type and amount of product released.
4.2 Summary of emergency situations as a result of a release (e.g. explosions, fires, fumes, etc.).
Provide ERT reports and numbers.
4.3 Description of contaminants present at site and an assessment of the degree of weathering.
4.4 Summary of abatement actions, free-product recovery summary.
4.5 Description of methods used to control contaminant plume migration.
4.6 Summary of site investigation, including site map with sampling locations, borings, and
monitoring wells. A summary of lab and field analyses, and QA/QC data.
4.7 Site map and cross-sections illustrating horizontal and vertical extent of contamination.
5.0 ADDITIONAL SITE CHARACTERIZATION
5.1 Summary of site characterization conducted for prospective corrective action technologies.
5.2 Results of any pumping tests, slug tests, or other aquifer tests and characterization
conducted.
5.3 Results of any other tests, models, or analyses used to characterize the site relative to
SDecific corrective action.
6.0 SOIL AND GROUNDWATER REMEDIAL OBJECTIVES
6.1 Summary of cleanup levels for soils at the site, including a completed, signed, and dated
Facility Classification Guide, indicating soil closure class as required by 401 KAR 42:080.
6.2 Summary of cleanup levels for groundwater, including a completed, signed, and dated copy
of the groundwater worksheet checklist, as included in 401 KAR 42:080.
7.0 COMPARATIVE TECHNOLOGIES AND CORRECTIVE ACTION
7.1 .Summary of the preliminary alternative technologies considered for remediation, including
a discussion of contaminant conditions, applicability of the technologies and their treatability
of contaminants, potential effectiveness, and a discussion as to why the technologies were
rejected.
7.2 Summary of any cost-effectiveness studies conducted.
7.3 Summaries of any pilot tests conducted. (Data for pilot tests shall be included in an
appendix.)
8.0 SELECTED TECHNOLOGIES AND CORRECTIVE ACTION
8.1 Summary of proposed technology or technologies.
8.2 Schematic summary of the design and operation of the remediation system.
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FINAL CORRECTIVE ACTION PLAN (CAP) REVIEW CHECKLIST (page 3)
9.0 PILOT STUDIES
9.1 Summary of the results of any pilot test conducted on proposed remedial technologies.
9.2 Summary of the results of any pilot test conducted on alternative technologies not proposed.
10.0 MONITORING PLAN AND TIME TABLE FOR REMEDIATION AND CLOSURE
10.1 Monitoring plan for the site, including quarterly reports, sampling parameters, sampling
locations, sampling schedules, sampling methods and procedures, and alternative plan of
action.
10.2 Estimate of the rate of recovery of contaminants from the soil and/or groundwater.
10.3 Time table for establishing and meeting remedial and closure objectives.
10.4 Submission of the "As Built" Plan within 120 days of acceptance of the CAP.
11.0 CLOSURE PLAN
11.0 Submit the Closure Plan that is proposed to determine that the extent of contamination has
been remediated to the allowable levels established for the site, and monitor wells properly
abandoned.
12.0 WASTE HANDLING, DISCHARGE, AND DISPOSAL
12.1 Copies of, applications for, or plans to submit copies of any discharge permits required for
closure and/or remediation at the site.
12.2 Plan for disposal of soils, residual tank materials, absorbent materials, or other wastes
generated during closure/remediation that require proper disposal.
12.3 Plan to submit all waste disposal manifests and receipts.
13.0 OFF-SITE ACCESS
13.0 Copies of contracts, memoranda of agreement, etc., allowing permission to the owner or
operator or their agent to access and/or perform any required corrective action off site.
14.0 HEALTH AND SAFETY PLAN
14.0 Copy of the health and safety plan for the facility.
15.0 CORRECTIVE ACTION PLAN CHECKLISTS
15.1 Submit the appropriate checklists for each remedial technology to be employed at the site.
15.2 Submit the certification affidavit to be completed by the registered Professional Geologist or
registered Professional Engineer.
15.3 Submit the owner or operator's affidavit, signed and notarized.
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FINAL CORRECTIVE ACTION PLAN (CAP) REVIEW CHECKLIST (page 4)
16.0 PUBLIC NOTICE AND AFFIDAVIT
16.1 Plan to submit one (1) copy of the public notice and two (2) copies of the affidavit
16.2 Plan to submit a notice to the Cabinet of the intent to implement the Corrective Action Plan.
17.0 "AS BUILT" PLAN
17.1 Plan to submit two (2) copies of the "As Built" Plan to the Cabinet within one hundred twenty
(120) days of the date of acceptance of the CAP by the Cabinet and after installation of the
remediation system.
18.0 REPORT SUBMITTED
18.0 An original and one (1) separate copy of the complete CAP shall be submitted with the UST
facility identification number on the front page of each document
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CERTIFICATION OF THE CORRECTIVE ACTION PLAN
Under the requirements of KRS Chapters 322 and 322A, this Corrective Action Plan shall be
completed and signed by a Professional Engineer (P.E.) registered with the Kentucky Board of Professional
Engineers and Land Surveyors, or a Professional Geologist (P.G.) registered with the Kentucky Board of
Registration for Professional Geologists.
Signature Date
Name and Title (Type or Print)
Registration Number, Date, and Seal
The undersigned, first being duly sworn, states that I have personally examined and am familiar with
the information submitted in this and all attached documents, and that based on my inquiry of those individuals
responsible for obtaining the information, I believe the submitted information is true, accurate and complete.
The undersigned further acknowledges that KRS 224.99-010 provides for penalties for submitting false
information.
Company Name
Name and Title of Individual Whose
Signature Appears Below
Signature*
Date of Signature
Subscribed and swom to before me by
This Day of , 19 .
Notary Public
My Commission Expires
Location of Commission,
*NOTE: If individual signing this is someone other than the president or secretary of a corporation, attach a
notarized copy of power of attorney, or resolution of board of directors which grants individual the legal
authority to represent the company. (Does not apply to a single proprietorship or partnership.)
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PART II. TECHNOLOGY-SPECIFIC REQUIREMENTS
This section is designed to aid owners and operators and their consultants in determining whether
each technology proposed for remediation at the site has been sufficiently evaluated for its applicability to site
conditions and the full extent of contamination, and whether the corrective action plan (CAP) is complete.
Technology-specific checklists are intended to aid owners and operators and their consultants in evaluating
the completeness of the CAP. In addition, the CAP technology-specific checklists are intended to expedite
review of the CAP by the UST Branch. The appropriate checklist for each proposed remedial technology shall
be completed and submitted with the CAP.
System-specific information (e.g. equipment and operations specifications) are not required in the
CAP. The CAP Outline is intended to aid owners and operators and their consultant in developing a
reasonable and applicable 'working schematic plan' or 'conceptual model' that is based on sufficient
information to substantiate the applicability of the proposed remediation to the site.
If any technology to be used is an 'innovative' technology (no technology-specific checklist is
presented in the CAP Outline for the technology), the innovative technology checklist and any other relevant
technical information regarding the proposed technology shall be completed and submitted with the CAP.
If "Monitoring Only" is proposed as the corrective action, the "Monitoring Only" checklist shall be
completed and submitted with the CAP. "Monitoring Only" plans may be subject to review and acceptance
by the Risk Assessment Branch of the Division of Environmental Services, Department of Environmental
Protection.
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Soil Vapor Extraction (SVE) CAP Checklist
Overview
Soil vapor extraction (SVE), also known as soil venting or vacuum extraction, is an in situ remedial
technology that reduces concentrations of volatile constituents in petroleum products adsorbed to soils in the
unsaturated (vadose) zone. In this technology, a vacuum is applied to the soil matrix to create a negative
pressure gradient that causes movement of vapors toward the extraction wells. Volatile constituents can be
readily removed from the subsurface through extraction wells. The extracted vapors are then treated, as
necessary, and discharged to the atmosphere. This technology is commonly implemented as a dual-phase
extraction (groundwater and soil air) using pump and treat technology or used as dual-phase extraction using
a "liquid ring" pump.
SVE technology has been proven effective in reducing concentrations of volatile organic compounds
(VOCs) and certain semi-volatile organic compounds (SVOCs) found in petroleum products at underground
storage tank sites. SVE is generally more successful when applied to more volatile petroleum products such
as gasoline. Diesel fuel, heating oils, and kerosene, which are less volatile than gasoline, are not readily
treated by SVE but may be suitable for removal by other means (e.g. bioventing).
The closure plan shall consist of sampling soil and groundwater and analyzing for the target
contaminants in a manner sufficient to ensure that all previously contaminated soils and groundwater are
below the maximum allowable contaminant concentration levels established for this site in accordance with
401 KAR 42:080 and that any potentially impacted soils and/or groundwater have been sufficiently sampled
to ensure that no secondary contamination has occurred due to migration of contamination and/or the
production of daughter products.
This checklist is provided to help evaluate the appropriateness of SVE to the remediation of the
contamination at the site, to ensure the completeness of the CAP, and to expedite the review process. Submit
the completed checklist with the CAP. Additional information may be required to determine if SVE will
accomplish cleanup goals at this site, or a re-evaluation of alternative technologies may be required prior to
submitting the CAP.
Answer the following questions and insert the page number(s) of the CAP on which the relevant
information is included. If the relevant information is not included in the CAP, the CAP shall be amended to
include the necessary relevant information.
Permeability of Soil
Answer Page #
What is the intrinsic permeability of the soil?
What is the depth to groundwater? (If less than three (3) feet, this parameter alone
may not negate the use of SVE. However, provisions for use of a surface seal,
construction of horizontal wells, or for lowering the water table shall be incorporated
in the CAP.)
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Contaminant Constituent Volatility
Answer Page #
What Is the vapor pressure of each target contaminant?
What, if applicable, is the type of enhancement to be used to increase the volatility
of target contaminants (e.g. heated air injection)?
What are the boiling points of the target contaminants?
What is the Henry's Law constant for each target contaminant?
SVE System Design
Answer Page #
What is the radius of influence (ROI) for the proposed extraction wells?
What is the ROI calculated for each soil type at the site? (Include calculations in an
appendix.)
What are the proposed extraction flow rates? (Proposed extraction flow rates should
achieve likely cleanup in the time allotted for remediation.)
What types of wells (horizontal or vertical) are proposed for the site?
Given the ROI for soil types and the area to be remediated, is the proposed well
density appropriate?
What are the proposed well-screen intervals and do they match the soil conditions
at the site?
What, if applicable, is the component proposed to intercept condensation or product
(e.g. knockout pots) ahead of the blower?
What precautions have been taken to . prevent static buildup, static discharge,
flashing, explosion, and fire?
Optional SVE Components
Answer Page #
What type of inlet wells are proposed (e.g. air injection or passive)?
Is the proposed air injection/inlet appropriate for the site?
Are surface seals proposed?
Are the sealing materials proposed appropriate for the site?
Will groundwater table depression be necessary?
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If groundwater table depression is necessary, are the pumping wells correctly
spaced?
If groundwater is being discharged, is it necessary to treat the groundwater?
Have water discharge permits been obtained for water exiting discharge wells or the
treatment process?
Is a vapor treatment system required?
If a vapor treatment system is required, is the proposed system appropriate for
contaminant concentration at the site?
If necessary, have air discharge permits been acquired?
Operation and Monitoring Plans
Answer Page #
Does the CAP propose daily monitoring for the first 7 to 10 days of flow
measurements, vacuum readings, and vapor concentrations from each vapor
extraction well, the manifold, and the effluent stock?
Does the CAP propose weekly to monthly monitoring of flow measurements, vacuum
readings, and vapor concentrations from each vapor extraction well, the manifold,
and the effluent stack?
Does the CAP propose that manifold valve adjustments be performed throughout the
operation of the system to ensure unit stabilization and equitable vacuum extraction
from each extraction well?
Does the CAP propose to submit monitoring reports on at least a quarterly basis?
The first quarterly report shall be submitted to the Division of Waste Management
within 120 days after the issuance of a letter by the Underground Storage Tank
Branch accepting the submitted corrective action plan.
Closure Plans
Answer Page #
Does the CAP closure plan provide for testing soil-gas contaminant levels after the
system has been shut down for a period sufficient to ensure that adsorbed phase
contaminants will re-equilibrate with soil gases?
Does the CAP closure plan outline the methods for collecting and analyzing
confirmatory soil samples for closure?
Does the CAP closure sampling plan include collecting soil samples in those areas
previously shown to be contaminated? (Meaning that the previously demonstrated
horizontal and vertical extent of contamination be sufficiently sampled to determine
that contamination in the soils has been reduced to below the maximum allowable
levels for the site.)
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Does the CAP closure sampling plan include sampling locations at a distance
sufficient from extraction wells to examine the perimeter effectiveness of each
extraction well?
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Pump and Treat CAP Checklist
Overview
Pump and treat technology is commonly used to control plume migration and to remove groundwater
from the subsurface. In this technology, a vacuum is applied via pumping below the saturated zone creating
drawdown of the local groundwater table or piezometric surface and causing groundwater to move into the
extraction wells. Contaminated groundwater can be readily removed from the subsurface through extraction
wells then treated, as necessary, and discharged to streams, sewer lines, etc. or disposed at a proper facility.
This technology is used to remove and treat most types of petroleum contamination, as well as other
hazardous contaminants with groundwater. Pump and treat technology has been shown to be nearly
universally applicable at UST sites and effective in controlling plume migration and in reducing contaminant
levels over time. Pump and treat is also used to control plume migration direction, groundwater flow direction
and local groundwater elevations. Pump and treat is commonly used in conjunction with other technologies
(e.g. soil vapor extraction, dual phase extraction using liquid ring pumps) as part of corrective action
integrating multiple technologies toward achieving cleanup goals.
Pump and treat is most effective in reducing high levels of contamination over time. As a long-term
treatment option, pump and treat technology is associated with relatively costly operations and maintenance
requirements; however, this option may be necessary for the reduction of high contaminant levels in
groundwater and as the only reasonable means to recover free product, control plume migration, or lower the
local water table as necessary for other soil and groundwater remediation technologies.
The closure plan shall consist of sampling soil and groundwater and analyzing for the target
contaminants in a manner sufficient to ensure that all previously contaminated soils and groundwater are
below the maximum allowable contaminant concentration levels established for this site in accordance with
401 KAR 42:080 and that any potentially impacted soils and/or groundwater have been sufficiently sampled
to ensure that no secondary contamination has occurred due to migration of contamination and/or the
production of daughter products.
This checklist is provided to help evaluate the appropriateness of the pump and treat technology to
the remediation of the contamination at the site, to ensure the completeness of the Corrective Action Plan
(CAP), and to expedite the review process. Submit the completed checklist with the CAP. Additional
information may be required to determine if pump and treat will accomplish cleanup goals at this site, or a re-
evaluation of alternative technologies may be required prior to submitting the CAP.
Complete the checklist below by answering the following questions and insert the page number(s)
of the CAP on which the relevant information is included. If the relevant information is not included in the CAP,
the CAP shall be amended to include the necessary relevant information.
Groundwater/Aquifer Characterization
Answer Page #
Have groundwater tests, such as slug tests, pumping tests, or other tests, been
conducted to indicate whether pumping groundwater will produce the desired effect
(e.g. drawdown, or effective extraction of contaminated water?
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Have the results of aquifer tests been included in the CAP (e.g. hydraulic
conductivity, groundwater flow velocities, and storativity)? Calculations and graphs
resulting from any aquifer test conducted at the site shall be submitted in an
appendix to the CAP.
Do aquifer parameters indicate that the impacted groundwater at this site is
conducive to pump and treat technology?
Groundwater Extraction System
Answer Page #
Do groundwater analyses indicate that equipment fouling is likely to occur? If yes,
a plan for the pretreatment of groundwater shall be proposed.
Does the CAP provide maps showing the location of all extraction wells and piping?
Does the CAP describe the criteria that were used to determine the location of
extraction wells and piping, including existing on-site wells?
Does the CAP explain how the zones of influence for the extraction wells have been
determined? (Provide calculations of zones of influence in an appendix.)
Does the CAP provide the expected influent concentrations? (Include any
calculations in an appendix.)
How was the expected drawdown calculated for recovery wells? (Provide all
calculations in an appendix.)
Groundwater Treatment System
For Air Stripping
Answer Page #
What, if any, air treatment systems are proposed for the site?
What is the estimated mass-transfer coefficient? (Provide all calculations in an
appendix.)
Is the treatment to take place in a non-attainment zone?
Is a air effluent permit required and has the permit been applied for or granted?
For Carbon/Other Material Adsorption
Answer Page #
Does the CAP describe the adsorption systems?
Has a complete description of the adsorption process been included in the CAP?
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Is pretreatment to be used on groundwater entering the adsorption unit?
Has a complete description of the pretreatment process been included in the CAP?
Does the CAP describe proposed system controls for the groundwater recovery and
pretreatment and posttreatment systems?
Does the CAP include a plan for the disposal and replacement of spent carbon or
other absorbent material?
For Bioreactors
Answer Page #
Does the CAP the describe the bioreactor system, including
- estimated biomass specifications?
- estimated mass balance calculations for bioreactions?
- estimated necessary contact time?
(All calculations shall be included in an appendix.)
Is any pretreatment of groundwater entering the bioreactor necessary?
Does the CAP describe proposed system controls for the groundwater recovery and
pretreatment and posttreatment systems?
Does the CAP describe system controls, such as recovery-well pump shutoff in case
the bioreactor fails?
Does the CAP outline a plan for the disposal and replacement of the bioreactor?
Discharge Permit Applications
Answer Page #
Does the CAP propose a plan for obtaining and submitting applicable permits,
including:
- KPDES or other surface water discharge permits?
- air emissions discharge permit?
- permit to dispose of contaminated carbon?
- disposal of bioreactor sludge?
- US EPA Underground Injection Control?
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Re-injection/lnfiltration Galleries
Answer Page it
Does the CAP propose that treated groundwater will be reintroduced to the
subsurface as part of a flushing or bioremediation action? If so, the system is to be
described in detail and any calculations included in an appendix?
Does the CAP indicate that the US EPA Region IV Office, Underground Injection
Control (UIC) will be notified that construction of injection wells or infiltration galleries
is planned for this site? Generally, infiltration galleries do not require a permit;
notification is sufficient.
Operation and Monitoring Plans
Answer Page #
Does the CAP contain analyses of samples taken from each extraction well and
each monitoring well within sixty (60) days of the date of submission of the CAP?
Does the CAP propose a schedule for monitoring site conditions at start-up and
during system operation (minimally on a quarterly basis), including:
- water table contours?
- extent of free product present?
- rates of recovery from influent wells?
- water quality parameters (e.g.hardness, TSS, TDS, pH, temperature, etc.)?
Does the CAP propose a schedule for monitoring the progress of the remedial
system?
Does the CAP propose to submit monitoring reports on at least a quarterly basis?
Does the monitoring plan in the CAP propose that sample analysis of all monitoring
and extraction wells shall be submitted to the Division of Waste Management,
minimally on a quarterly basis?
Does the CAP propose to submit all groundwater analysis data using the UST
Groundwater Sample Analysis Form (DEP2013 9/5/95)?
Does the CAP contain an alternative plan if system performance monitoring indicates
that pump and treat technology will not attain cleanup levels below the maximum
allowable levels for contaminants in groundwater at the site or is not effective in
controlling migration of the contaminant plume?
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Closure Plans
Answer Page #
Does the CAP closure plan provide for analyzing groundwater contaminant levels for
a minimum of four (4) quarters after the system has been inactive?
Does the CAP closure plan outline the methods for collecting and analyzing
confirmatory groundwater samples for closure?
Does the CAP closure-sampling plan include collecting groundwater samples in
those areas previously shown to be contaminated? (Meaning that the previously
demonstrated horizontal and vertical extent of contamination in groundwater be
sufficiently sampled to determine that contamination in the groundwater has been
reduced to below the maximum allowable levels for the site.)
Does the CAP closure sampling plan include sampling locations at a distance
sufficient from extraction wells to examine the perimeter effectiveness of each
extraction well?
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Air Sparging CAP Checklist
Overview
Air sparging is an in situ remedial technology that reduces the concentration of volatile hydrocarbons
that are adsorbed to soils and dissolved in groundwater. The technology, which is also known as "in situ air
stripping" and "in situ volatilization," involves the injection of contamination-free air into the subsurface
saturated zone, enabling a phase transfer of hydrocarbons from a dissolved or adsorbed phase to a vapor
phase. The air is then vented through the unsaturated zone. Air sparging is most often used with soil vapor
extraction (SVE), but it can also be used with other remedial technologies. When air sparging is combined
with SVE, the SVE system creates a negative pressure in the unsaturated zone through a series of extraction
wells to control the vapor plume migration. This combined system is called AS/SVE. If air sparging is to be
used in conjunction with any other technologies, the checklists relevant to the other technologies used shall
also be completed and included in the CAP.
Since air-sparging technology is relatively new, there are few cases with substantial documentation
of performance. When used appropriately, air sparging has been found to be effective in reducing volatile
organic compounds (VOCs) found in petroleum products at underground storage tank (UST) sites. Air
sparging is generally more applicable to lighter gasoline constituents (e.g. benzene, toluene, ethylbenzene,
and xylenes [BTEX]), because they readily transfer from the dissolved phase to the gaseous phase. Air
sparging is less applicable to diesel fuel, kerosene, and waste oil. Effective use of air sparging may require
that it be combined with other remedial methods (e.g., SVE, bioventing, pump and treat).
The closure plan shall consist of sampling soil and groundwater and analyzing for the target
contaminants in a manner sufficient to ensure that all previously contaminated soils and groundwater are
below the maximum allowable contaminant concentration levels established for this site in accordance with
401 KAR 42.080 and that any potentially impacted soils and/or groundwater have been sufficiently sampled
to ensure that no secondary contamination has occurred due to migration of contamination and/or the
production of daughter products.
This checklist is provided to help evaluate the appropriateness of air to remediate the contamination
at the site and the completeness of the Corrective Action Plan (CAP). Submit the completed checklist with
the CAP. Additional information may be required to determine if air sparging will accomplish cleanup goals
at the site, or a re-evaluation of alternative technologies may be required prior to submitting the CAP.
Answer the questions and insert the page number(s) of the CAP on which the relevant information
is included. If the relevant information is not included in the CAP, the CAP shall be amended to include the
necessary relevant information.
Factors That Contribute to the Vapor/Dissolved Phase Partitioning of the Constituents
Answer Page #
What is the Henry's law constant for each target chemical constituent?
What is the boiling point of each chemical target constituent?
What is the vapor pressure for each chemical target constituent?
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Permeability of Soil
Answer Page #
What is the intrinsic soil permeability of impacted soils?
Is the soil permeability isotropic or anisotropic?
What is the dissolved iron concentration in groundwater?
Air Sparging System Design
Answer Page #
What is the radius of influence (ROI) for each of the proposed air sparging wells?
What is the ROI for each soil type at the site? (Submit any calculations in an
appendix.)
• Will the proposed extraction flow rates provide sufficient vapor/dissolved phase
partitioning of contaminant constituents to achieve cleanup in the time allotted for
remediation in the CAP?
Will the proposed air sparging pressure be sunicient to overcome the hydraulic head
and capillary forces?
Will the proposed air-sparging pressure cause fumes to migrate into buildings,
homes, etc.?
Are the number and placement of air sparging wells appropriate, given the total area
to be cleaned up and the radius of influence of each well?
Are the proposed well-screen intervals sufficient to impact the contaminant plumes
at the site?
Is the proposed well configuration appropriate for the site conditions present?
Have precautions been taken to prevent static buildup, static discharge, flashing,
explosion, and fire?
Operation and Monitoring Plans
Answer Page #
Does the site presently have any free product or fume problems?
Does the CAP propose operating an SVE system prior to starting the air sparging
system?
If the answer to the previous question is 'yes', is the SVE checklist included in the
CAP?
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Does the CAP contain a proposal to monitor system performance by measuring flow,
vacuum readings, vapor concentrations, groundwater depth, dissolved oxygen
levels, carbon dioxide levels, pH, or other constituents in extraction wells, monitoring
wells, the manifold, and the effluent stack on a regular basis?
Does the CAP contain a proposal for monitoring VOC vapors in nearby buildings and
other nearby enclosed spaces?
Does the CAP contain a proposal for monitoring groundwater pH and levels of
contaminants, carbon dioxide, and dissolved oxygen in groundwater on a regular
basis following startup?
Does the CAP contain a proposal for monitoring effluent stack for levels of
contaminants, oxygen, and carbon dioxide on a regular basis following startup?
Does the CAP contain a proposal to submit monitoring reports on at least a quarterly
basis?
Closure Plans
Answer Page #
Does the CAP closure plan provide for analyzing groundwater contaminant levels for
a minimum of four (4) quarters after the system has been inactive?
Does the CAP closure plan outline the methods for collecting and analyzing
confirmatory groundwater samples for closure?
Does the CAP closure-sampling plan include collecting groundwater samples in
those areas previously shown to be contaminated? (Meaning that the previously
demonstrated horizontal and vertical extent of contamination in groundwater be
sufficiently sampled to determine that contamination in the groundwater has been
reduced to below the maximum allowable levels for the site.)
Does the CAP propose to submit all groundwater analysis data using the UST
Groundwater Sample Analysis Form (DEP2013 9/5/95)?
Does the CAP closure-sampling plan include sampling locations at a distance
sufficient from sparge points to examine the perimeter effectiveness of each
extraction well?
Does the CAP contain an alternative plan if system performance monitoring indicates
that air sparging technology will not attain cleanup levels below the maximum
allowable levels for contaminants in groundwater at the site or is not effective in
controlling migration of the contaminant plume?
Does the CAP closure plan specify the methods for collecting and analyzing
confirmatory groundwater samples for closure?
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Thin-spreading of Petroleum-Contaminated Soils
or the "Registered Permit-by-Rule" CAP checklist
Overview
Thin-spreading is a potential remediation as part or ail of the corrective action at UST sites with
petroleum-contaminated soils. Thin-spreading, which is also known as "ex situ air stripping","ex situ
volatilization" and "ex situ biodegradation" involves the removal and relocation of contaminated soils to a
treatment area. The soil is generally spread in thin layers and the contaminants are reduced through the
processes of volatilization, hydrolysis, and biodegradation. Hydrocarbon-contaminated soils are commonly
mixed with nutrients, microbes, and/or oxygen enhancers. Thin-spreading ideally maintains control of surface
runoff, as well as seepage to the subsurface from the treatment area.
Thin-spreading is regulated by the Division of Waste Management, under the Registered Permit-by-
Rule Regulation: 401 KAR 47:110. Under this regulation, in order to conduct thinspreading of petroleum-
contaminated soils "Notification for a Registered Permit-by-Rule" shall be obtained from, completed, and
returned to the Division of Waste Management. To obtain a "Notification for a Registered Permit-by-Rule"
contact the Underground Storage Tank Branch at
Underground Storage Tank Branch
Division of Waste Management
14 Reilly Road
Frankfort KY 40601
(502) 564-6716
If petroleum-contaminated soils are to be treated at a permitted thin-spreading facility off site, the CAP
shall contain a copy of the permit number, or the accepted "Notification for a Registered Permit-by-Rule" for
the treatment facility. If contaminated soils are to be treated at a thin-spreading facility out of state, a receipt
of disposal from the receiving facility shall be submitted to the Cabinet within one hundred twenty (120) days
of the acceptance of the CAP.
The closure plan shall consist of sampling soil and groundwater and analyzing for the target
contaminants in a manner sufficient to ensure that all previously contaminated soils and groundwater are
below the maximum allowable contaminant concentration levels established for this site in accordance with
401 KAR 42:080 and that any potentially impacted soils and/or groundwater have been sufficiently sampled
to ensure that no secondary contamination has occurred due to migration of contamination and/or the
production of daughter products.
Complete the checklist below, answering each question and insert the page number(s) of the CAP
on which the relevant information is included. If the relevant information is not included in the CAP, the CAP
shall be amended to include the necessary relevant information.
Answer Page #
Does the CAP propose to treat petroleum-contaminated soils by a thin spreading
process?
Are petroleum-contaminated soils to be treated by thin-spreading at a permitted
facility off site?
If soils are to undergo thin-spreading at a facility off site, what is the permit number
for the facility?
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If thin-spreading of the soils is to be conducted on site, has the UST Branch been
contacted in order to receive the current requirements of the "Notification for a
Registered Permit-by-Rule"?
Does.the CAP include a copy of the "Notification for a Registered Permit-by Rule"
submitted to the Division of Waste Management?
Does the CAP include a copy of the letter of acceptance of the "Notification of
Registered Permit-by-Rule" issued by the Division of Waste Management?
Is the proposed treatment to occur in a non-attainment zone?
Is an air emissions permit required for the proposed remediation as determined by
the Division of Air Quality, and is the permit in the CAP?
Are all other required or applicable checklists complete and included in the CAP?
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Low Temperature Thermal Desorption (LTTD) CAP Checklist
Overview
Low-Temperature Thermal Desorption (LTTD), also know as low-temperature thermal volatilization
, thermal stripping, and soil roasting, is an ex-situ remedial technology that uses heat to physically separate
petroleum hydrocarbons from excavated soils. Thermal desorbers are designed to heat soils to temperatures
sufficient to cause constituents to volatilize and desorb (physically separate) from the soil. Although they are
not designed to decompose organic constituents, thermal desorbers can, depending upon the specific
organics present and the temperature of the desorber system, cause some of the constituents to completely
or partially decompose. The vaporized hydrocarbons are generally treated in a secondary treatment unit (e.g.
an afterburner, catalytic oxidation chamber, condenser, or carbon adsorption unit) prior to discharge to the
atmosphere. Afterburners and oxidizers destroy organic constituents. Condensers and carbon adsorption
units trap organic compounds for subsequent treatment or disposal.
Some pre- and post-processing of soils is necessary when using LTTD. Excavated soils are first
screened to remove large (> 2 inches in diameter) objects. These may be sized (e.g. crushed or shredded)
and then introduced back into the feed material. After leaving the desorber soils are cooled, re-moistened to
control dust, and stabilized (if necessary) to prepare them for disposal/reuse. Treated soil may be redeposited
on site, used as cover in landfills, or incorporated into asphalt.
Thermal desorption systems fall into two general classes - stationary facilities and mobile units.
Contaminated soils are excavated and transported to stationary facilities; mobile units can be operated directly
on site. Desorption units are available in a variety of process configurations including rotary desorber, asphalt
plant aggregate dryers, thermal screws, and conveyor furnaces.
LTTD has proven very effective in reducing concentration of petroleum contamination in soils,
including gasoline, jet fuels, kerosene, diesel fuel, heating oils, and lubricating oils. LTTD is applicable to
constituents that are volatile at temperatures as great as 1200°F.
The closure plan shall consist of sampling soil and groundwater and analyzing for the target
contaminants in a manner sufficient to ensure that all previously contaminated soils and groundwater are
below the maximum allowable contaminant concentration levels established for this site in accordance with
401 KAR 42:080 and that any potentially impacted soils and/or groundwater have been sufficiently sampled
to ensure that no secondary contamination has occurred due to migration of contamination and/or the
production of daughter products.
Answer the following questions and insert the page number(s) of the CAP where the relevant
information is included. If the relevant information is not included in the CAP, the CAP shall be amended to
include the necessary relevant information.
Evaluation of LTTD Effectiveness
Answer Page #
What is the plasticity of the soils to be treated?
What is the maximum diameter of soil particles to be treated?
What is the soil moisture content?
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What is the total petroleum hydrocarbon concentration by weight in the soils to be
treated?
Is the volatility of the hydrocarbons present in soil and groundwater relatively low?
Determination if soils require pretreatment
Answer Page #
What is the concentration of humic material in the soils to be treated?
What is the concentration of heavy metals (e.g. Pb, Cr) in the soils to be treated?
What are K^/s for the target chemical constituents?
Are dioxin precursors present in the soils?
It may be necessary that a pilot test or "test burn" be conducted to demonstrate that LTTD is an applicable
remedial technology.
Answer Page#
Do the results of the pilot test indicate that LTTD is applicable?
Evaluation of the Practicality of Using LTTD
Answer Page #
What is the maximum depth to which the contaminated soils extend?
Is the contaminated soil contained within the site boundaries?
Is there contamination beneath buildings or near building foundations?
Is excavation of the soil practical and cost-efficient to LTTD?
Is sufficient land area available for operation of equipment and temporary storage
(staging) of contaminated soil and treated soil to be treated on site?
What is the distance to an off-site facility?
Does surrounding land use permit operation of an on-site system?
Evaluation of the Effectiveness of Using LTTD
Answer Page #
Have an adequate number of in-situ soil samples been collected and analyzed in
order to delineate the extent of contamination?
At what frequency are treated soil samples to be collected and analyzed?
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Has the proposed desorption unit successfully treated soils with similar contaminant
concentration levels?
What is the ultimate disposal location of the soil (e.g. return to excavation, transport
to landfill for cover) proposed in the CAP?
Permitting, Monitoring, and Closure Requirements
Answer Page #
Has the Division for Air Quality been contacted to determine the current
requirements for air emissions?
Does the CAP contain a copy of the permit or acceptance letter from the Division for
Air Quality or a letter indicating that no permit is required?
Is a vapor treatment process proposed to treat emissions from the LTTD process?
Does the CAP include a proposed sampling plan of excavated soil prior to and
following treatment, using the appropriate SW-846 sampling and analysis protocols?
Does the CAP contain a plan for the proper storage and transport for the excavated
material before, during, and after treatment is included?
Does the CAP contain a closure sampling plan of the excavation(s), outlining
sampling locations and protocols, and the methods of analysis?
Does the CAP include a proposal for sampling and analysis of any water
encountered during excavation activities?
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Innovative Corrective Action Technologies CAP Checklist
Overview
This checklist shall be used for any technology for which a specific checklist is not provided in this
outline. A thorough overview of the nature, processes, and status of any innovative technology proposed to
be utilized at a LIST site undergoing corrective action, whether as the sole technology, or in tandem, or in
conjunction with any other remediation technology, shall be presented in the CAP. This discussion shall
include: a summary of the application of the technology to the conditions at the site; a thorough presentation
of the equipment and processes to be utilized; and how the system performance is to be monitored. In
addition, a plan shall be submitted outlining the requirements of the CAP for monitoring the fate and transport
of contaminants at the site during remediation. Also, a Closure Plan shall be submitted outlining a time-table
for the corrective action and closure-sampling protocols, including the analytical methods to be used. The
Division of Waste Management reserves the right to withhold approval of an innovative corrective action
technology if sufficient information has not been presented to determine the appropriateness of the technology
in relation to the site.
The closure plan shall consist of sampling soil and groundwater and analyzing for the target
contaminants in a manner sufficient to ensure that all previously contaminated soils and groundwater are
below the maximum allowable contaminant concentration levels established for this site in accordance with
401 KAR 42:080 and that any potentially impacted soils and/or groundwater have been sufficiently sampled
to ensure that no secondary contamination has occurred due to migration of contamination and/or the
production of daughter products.
Answer the questions below and insert the page number(s) of the CAP on which the relevant
information is included. If the relevant information is not included in the CAP, the CAP shall be amended to
include the necessary relevant information.
System Design
Answer Page #
Does the CAP include a thorough overview of the proposed corrective action
technology?
Does the CAP include a discussion of the applicability of the technology to the
conditions at the site?
Does the CAP include a discussion of the application of the proposed technology to
the treatability of the contamination at the site.
Does the CAP include the results of any pilot studies conducted regarding the
application of the proposed technology at the site?
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Monitoring Plan
Answer Page #
Does the CAP include a plan for the start-up and performance of the system?
Does the CAP include a plan for monitoring the levels and location of contaminants
at the site during the remediation? (Monitoring reports shall be submitted minimally
on a quarterly basis.)
Closure Plan
Answer Page #
Does the CAP include a plan outlining a time-table for remediation, which includes
closure sampling protocols and analytical methods to be used?
Does the CAP closure plan provide for analyzing groundwater contaminant levels for
a minimum of four (4) quarters after the system has been shut down?
Does the CAP closure plan outline the methods for collecting and analyzing
confirmatory groundwater samples for closure?
Does the CAP closure-sampling plan include collecting groundwater samples in
those areas previously shown to be contaminated? (Meaning that the previously
demonstrated horizontal and vertical extent of contamination in groundwater be
sufficiently sampled to determine that contamination in the groundwater has been
reduced to below the maximum allowable levels for the site.)
Does the CAP propose to submit all groundwater analysis data using the UST
Groundwater Sample Analysis Form (DEP2013 9/5/95)?
Does the CAP closure-sampling plan include sampling locations at a distance
sufficient from treatment points to examine the perimeter effectiveness of each
extraction well?
Does the CAP contain an alternative plan if system performance monitoring indicates
that the proposed technology will not attain cleanup levels below the maximum
allowable levels for contaminants in groundwater at the site or is not effective in
controlling migration of the contaminant plume?
. Does the CAP closure plan specify the methods for collecting and analyzing
confirmatory groundwater samples for closure for four (4) quarters after the system
has been inactive?
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Bioventing CAP Checklist
Overview
Bioventing is an in-situ remediation technology that uses indigenous microorganisms to biodegrade
organic constituents adsorbed to soils in the unsaturated zone. Soils in the capillary fringe and the saturated
zone are not affected. In bioventing, the activity of the indigenous bacteria is enhanced by inducing air
(oxygen) flow into the unsaturated zone (using extraction and/or injection wells) and, if necessary, by adding
nutrients.
When extraction wells are used for bioventing, the process is similar to soil vapor extraction (SVE).
However, while SVE removes constituents primarily through volatilization, bioventing systems promote
biodegradation of constituents and minimize volatilization (generally by using lower air flow rates than for
SVE). In practice, some degree of volatilization and biodegradation occurs when either SVE or bioventing is
used.
All aerobically biodegradable constituents can be treated by bioventing. In particular, bioventing has
proven to be very effective in remediating releases of petroleum products including gasoline, jet fuels,
kerosene, and diesel fuel. Bioventing is most often used at sites with mid-weight petroleum products (e.g.
diesel fuel and jet fuel) because lighter products (e.g. gasoline) tend to volatilize readily and can be removed
more rapidly using SVE. Heavier products (e.g. lubricating oils) generally take longer to biodegrade than the
lighter products.
The closure plan shall consist of sampling soil and groundwater and analyzing for the target
contaminants in a manner sufficient to ensure that all previously contaminated soils and groundwater are
below the maximum allowable contaminant concentration levels established for this site in accordance with
401 KAR 42:080 and that any potentially impacted soils and/or groundwater have been sufficiently sampled
to ensure that no secondary contamination has occurred due to migration of contamination and/or the
production of daughter products.
Answer the questions below and insert the page number(s) of the CAP on which the relevant
information is included. If the relevant information is not included in the CAP, the CAP shall be amended to
include the necessary relevant information.
Site Characteristics
Answer Page #
What is the intrinsic permeability of the soil?
Is the soil free of impermeable layers or other conditions that would disrupt air flow?
What is the heterotrophic bacteria count in dry soil?
What is the soil pH?
What is the moisture content of the soil in contaminated zones?
What is soil temperature during the proposed treatment season?
What is the intrinsic, or augmented carbon:nitrogen:phosphorus ratio?
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What is the depth to groundwater?
Constituent Characteristics
Answer Page #
Are all of the target chemical constituents sufficiently biodegradable?
What is the approximate concentration of Total Petroleum Hydrocarbons in the soils
(in ppm)?
If there are constituents with vapor pressures greater than 0.5 mm Hg, boring ranges
above 300°C, or Henry's Law constants greater than 100 atm/mole fraction, has the
CAP addressed the potential environmental impact of the volatilized constituents?
Evaluation of the Bioventing System Design
Answer Page #
What is the radius of influence (ROI) for the proposed extraction or injection wells?
What is the calculated ROI for each soil type at the site? (Include all calculations in
an appendix of the CAP.)
What types of wells (horizontal or vertical) are proposed for the site conditions?
What is the well spacing relative to the calculated ROI of the soils?
At what depths are the proposed well screen intervals?
Are air injection wells proposed?
What type of air injection well is proposed?
Are the proposed air injection rates sufficiently low to prevent migration of the
plume?
Optional Bioventing Components
Answer Page #
Is nutrient delivery proposed?
Is nutrient addition (if necessary) proposed to be controlled on a periodic or a
continuous basis?
Are surface seals proposed?
Are the proposed sealing materials appropriate for the site?
Will groundwater depression be necessary?
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If groundwater depression is necessary, are the pumping wells correctly spaced
relative to their ROI? (Include all calculations in an appendix to the CAP.)
Is a vapor treatment system required?
If a vapor treatment system is required, is the proposed system appropriate for the
contaminant concentration at the site?
Does the CAP include a copy of any required permits, letters of approval for any air
or water emissions resulting from remediation at the site? If no permit is required,
a letter indicating such shall be submitted with the CAP.
Operation and Monitoring Plan
Answer Page #
Does the system performance monitoring plan propose monitoring of emission of
VOC's and carbon dioxide concentration?
Is subsurface soil sampling proposed for tracking constituent reduction and
biodegradation conditions?
Does the CAP contain a proposal to submit monitoring reports, at a minimum, on a
quarterly basis?
Closure Plan
Answer Page #
' Does the CAP include a plan outlining a time-table for remediation, which includes
closure sampling protocols and analytical methods to be used?
Does the CAP closure plan outline the methods for collecting and analyzing
confirmatory soil samples for closure?
Does the CAP closure sampling plan include collecting soil samples in those areas
previously shown to be contaminated? (Meaning that the previously demonstrated
horizontal and vertical extent of contamination shall be sufficiently sampled to
determine that contamination in the soils has been reduced to below the maximum
allowable levels for the site.)
Does the CAP closure sampling plan include sampling locations at a distance
sufficient from extraction wells to examine the perimeter effectiveness of each
extraction well?
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Site-Specific Risk Assessment CAP Checklist
Overview
Risk assessment may be conducted, as an option to remedial action at an UST site to determine
whether the contaminant levels to remain at a UST site present an unacceptable risk to human health and the
environment.
Site-specific risk assessment is reviewed by the Risk Assessment Branch of the Division of
Environmental Services, 14 Reilly Road, Frankfort KY 40601, (502) 564-2150. Risk Assessment proposals
for UST sites shall be submitted to the UST Branch, and these proposals will be referred to the Risk
Assessment Branch for review. The UST Branch will notify the owner/operator of the findings of the Risk
Assessment Branch.
Answer the questions below and insert the page number(s) of the CAP on which the relevant
information is included. If the relevant information is not included in the CAP, the CAP shall be amended to
include the necessary relevant information. If site-specific risk assessment is to be used in tandem with any
other technology, the checklists relevant to the other proposed remediation technologies shall be completed
and included in the CAP.
Answer Page #
Has the UST Branch been contacted in order to receive a complete copy of the
appropriate documents pertaining to Risk Assessment?
Has the Risk Assessment proposed been approved by the Risk Assessment Branch
of the Division of Environmental Services?
Have all other applicable CAP checklists been completed and included in the CAP?
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Residual Landfill CAP Checklist
Overview
Residual landfill status includes leaving contamination in place. The levels of contamination allowed
to be left in place remain above the levels required for closure under the Underground Storage Tank
regulations. Residual landfills are regulated by the Division of Waste Management. The application
requirements for residual landfills are found in 401 KAR Chapters 47 and 48. The technical requirements for
residual landfills are included in 401 KAR 48:050 and 401 KAR 48:170. Residual landfills require a landfill cap
and involve monitoring at the site. If part of the CAP is to eventually close the UST site as a residual landfill,
a residual landfill permit shall be obtained from the Division of Waste Management. In order to obtain a
residual landfill permit contact:
Division of Waste Management
14 Reilly Road
Frankfort KY 40601
(502) 564-6716
Answer the questions below and insert the page numbers) of the CAP on which the relevant
information is included. If the relevant information is not included in the CAP, the CAP shall be amended to
include the necessary relevant information.
Check the appropriate box.
Answer Page #
Has the Solid Waste Branch been contacted to determine the current permit
requirements for residual landfills?
Is a copy of the residual landfill permit application submitted to the Solid Waste
Branch enclosed?
Is a copy of the residual landfill permit issued by the Solid Waste Branch enclosed?
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Enhanced Bioremediation as an Option for Corrective Action
Overview
Biodegradation means degradation of organic compounds, in soil or groundwater, by indigenous, or
introduced microbes. Enhanced Bioremediation is an application of biodegradation of organic compounds
by microbes as a remediation when natural conditions have been altered to augment biodegradation at the
site. Enhanced bioremediation may be a suitable remedial action at sites where the contaminants of concern
are readily biodegradable, site conditions are favorable, and the time necessary for bioremediation to achieve
cleanup levels in soils and groundwater is reasonable. However, limiting factors such as insufficient nutrients,
depleted oxygen levels, or insufficient time exist at the site. Therefore microbial populations and microbial
activity may require enhancement by the introduction of nutrients (e.g. nitrogen, phosphate), oxygen, other
microbes, etc., in order to reduce contaminant levels in the amount of time considered acceptable for this
corrective action, and/or to control plume migration. If artificial enhancement of microbial populations,
nutrients, soils gases, etc. are required, this is known as "enhanced" bioremediation.
Site conditions may indicate that biodegradation of the contaminants present at the site will be
sufficient to reduce contaminant levels and/or control plume migration without artificial enhancement; this is
known as "naturally occurring" or "intrinsic" bioremediation. If intrinsic bioremediation is the only remedial
method to be used at the site, the Monitoring Only CAP Checklist shall be used.
Application of enhanced bioremediation as a remediation technology requires that the site be
evaluated to ensure that the site conditions are appropriate for the technology being proposed, that the
technology proposed will not create resultant adverse conditions in the soil, air, or water, and that a sufficient
monitoring plan be developed. Bioremediation can be a long-term remediation option; requiring years or
decades to effect adequate cleanup of a site. Numerous factors affect the potential for and rate of
bioremediation at a given site, such as:
* soil moisture content
* porosity
* soil temperature
soil pH
02 availability
* production of daughter products
(e.g. MEK)
presence of suitable microbes
contaminants present and their concentrations
availability of nutrients
presence of other electron receptors
redox potential (Eh)
Because of the dependence on these factors, adequate site characterization is essential for determining the
viability of bioremediation as an option for all, or part of, the corrective action at a given site. The
characterization of a site for evaluation of bioremediation potential shall be part of the initial site investigation
and involves;
* characterization of the contaminants at a site;
* assessment of physicochemical conditions at the site and the presence of
appropriate nutrients; and
* in some cases, assessment of microbiological parameters to determine the presence
and viability of an appropriate microbial population may be necessary.
Characterization of site heterogeneity (e.g. anisotropic groundwater flow patterns, anisotropic soil permeability,
etc.) and the potential for the further migration of contaminants shall be included in the site investigation. The
number of samples necessary to adequately characterize a site for
bioremediation will vary based on the extent of contamination and the heterogeneity of the distribution of
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contamination at the site, and the heterogeneity of the soils and groundwater flow at the site.
Contaminant Characterization
Contaminants Present and Their Concentrations
It is important to identify the contaminants at a site, determine whether there is a potential for further migration
of the contaminant plume, and determine whether the contaminants are readily amenable to bioremediation.
Degradation of most volatile compounds is inhibited whenever organic vapors are present in high
concentrations in the soils and/or groundwater. Inhibited biodegradation may be due to either acute toxic
effects and/or reduced oxygen levels. Acute toxicity to microorganisms is unlikely if residual levels of volatile
organic compounds are less than several hundred mg/kg.
Biodegradabil'ity
Most petroleum hydrocarbons are readily biodegradable through aerobic metabolism. Many are also
biodegraded by anaerobic metabolism, though at lower rates. In general the following are true:
Water-soluble compounds are usually degraded faster than less soluble compounds;
* The n-alkanes, n-alkylaromatics, and aromatic compounds in the C5 to range are usually readily
biodegradable. These compound comprise a major portion of gasoline and diesel fuel;
The n-alkanes, n-alkylaromatics, and aromatic compounds above have very low water solubilities
which result in slower biodegradation rates. These compounds are found in heavier oils;
* Condensed or fused aromatic and cycloparaffinic compounds with four or more rings have very low
biodegradation rates. These include most of the PAH compounds; and
* The rate of oxidation of straight-chain aliphatic hydrocarbons is inversely proportional to hydrocarbon
chain length.
Environmental Parameters
Characterization of environmental parameters at a site is necessary to determine whether the physical and
chemical conditions at the site are amenable to bioremediation, or whether conditions at the site need to be
altered by introduced methods. The specific parameters that need to be evaluated for a given site shall be
determined on a site-specific basis. These parameters may include the following:
soil moisture content
soil moisture holding capacity/
field capacity
soil porosity
intrinsic soil permeability
bulk density of soil
soil pH
soil water dissolved oxygen
soil gas oxygen content
storativity of impacted aquifer(s)
groundwater temperature
groundwater flow rate and direction
hydraulic conductivity of impacted
aquifer(s)
porosity and permeability of
impacted aquifers
organic matter content (OM)
total organic carbon (TOC)
total organic nitrogen (TON)
soil redox potential (Eh)
inorganic nitrogen (as NH3, NOz, N03)
soluble phosphorus (o-P04)
"soluble manganese (Mn2*)
iron (Fe2*, Fe3*)
sulfate (S042)
plume migration rate and direction
hydraulic gradient
groundwater dissolved oxygen
groundwater Eh
groundwater Ph
homogeneity/heterogeneity of
groundwater flow
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* aquifer isotropy/anisotropy * availability of nutrients
* specific yield/specific retention
of impacted aquifers
Microbiological Characterization
Assessing the presence of suitable microbes for degrading specific organic contaminants at a site is critical
for implementation of bioremediation as a remedial action. Petroleum hydrocarbon-degrading microbes are
widespread in the subsurface; in most cases they can be assumed to be present. However, some site
conditions, such as marginal environmental conditions or high concentrations of contaminants or organic
vapors, make it necessary to determine whether a viable microbial population is present Based on the results
of enumeration studies it may be determined that bioremediation is unsuitable at the site or that the microbe
populations need to be enhanced by other methods.
Enumeration Studies
Microbial enumeration studies and column studies employ plate counts to determine relative numbers of total
aerobic heterotrophs and total hydrocarbon degraders as qualitative measures for "clean" versus
"contaminated" areas. These laboratory studies can provide evidence that the necessary microorganisms
are present at a site and that metabolic adaptation has occurred. However, it is difficult to directly relate these
studies to biodegradation potential, as laboratory conditions do not replicate site conditions. Enumeration
studies are probably most useful for comparison of the areas of highest contamination, where aerobic
microbial populations may be significantly reduced, to uncontaminated areas.
Respirometry
Respirometry is an indirect method for determining the presence of a viable microbial community at a site, and
provides an indication whether in situ biodegradation is occurring at the site. Soil respirometry measures 02
depletion/C02 production in the soil and can provide a measure of biological activity when compared with
background measurements outside the zone of contamination at the site. Increased 02 depletion/C02
production in the contaminated area relative to the background ratios indicates that aerobic biodegradation
is occurring.
Monitoring Requirements
If the results of the site characterization indicate that bioremediation is appropriate to the site conditions and
enhanced bioremediation is proposed as a remedial action, a monitoring plan shall be developed and
implemented in order to evaluate the progress and effectiveness of bioremediation at the site. Monitoring shall
serve several purposes:
* to sufficiently monitor the entire extent of contamination;
* to provide an indication that contaminant concentrations are decreasing over time;
* to insure that the decrease in contaminant concentration is due to degradation, or other
remedial processes ongoing at the site, and not due to contaminant migration or dilution;
* to provide information regarding degradation rates; and
* to provide data regarding the nature of biodegradation at the site.
From the standpoint of evaluating remediation effectiveness, the monitoring need not distinguish between
biodegradation and abiotic degradation or loss of contaminants (such as volatilization, etc.) resulting from
natural processes or other remedial efforts ongoing at the site (such as air sparging, soil vapor extraction,
etc.).
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Monitoring Plan
A variety of approaches and techniques are available for monitoring biodegradation and there is no set
standard. A variety of approaches and/or techniques will likely be appropriate at most sites, especially if other
remediation efforts are being used in conjunction with bioremediation. The monitoring plan shall be developed
to address the nature of the contaminants and the physical conditions at the site.
Monitoring shall be conducted to ensure that any measured loss of contaminants is not due to migration or
dilution.
The monitoring plan shall include at a minimum:
* a description of the monitoring approaches and techniques to be used;
* a description of the sampling plan (on a minimally quarterly basis);
* establish benchmarks to monitor the progress of remediation;
* the analytes to be sampled; and
* the analytical methods to be used.
Monitoring Approaches
Change in concentrations of original contaminants
Confirmatory sample analysis for the target contaminants can be completed using the appropriate SW-846
methods. Soil and water samples may be taken from temporary constructions such as bore holes or direct-
push methods. Water samples can be taken from permanent monitoring wells constructed at the site. The
sampling shall monitor previously uncontaminated zones (both below and beyond the plume to ensure that
decreases in contaminants have not been due to plume migration.
Change in concentration of co-reactants
Changes in the concentration of various nutrients (P04, NH4) NO2/NO3), electron receptors (02l N03) Fe3* 2*,
Mn 4+'3+-2+, S04), and reaction by-products (C02, CH4, N2) can potentially provide information on the type and
progress of biodegradation. These changes shall be compared to those in equivalent samples from outside
the area of contamination to provide control.
Changes in physical and physicochemical properties, appropriate to the media being sampled, can be
measured as well. These may include soil moisture content, soil/groundwater Ph, redox potentials, and
temperature. Changes in these parameters can provide information for interpreting the other monitoring
results.
All groundwater monitoring wells shall be analyzed minimally on a quarterly basis for the target contaminants,
beginning within 120 days of receipt of a letter indicating that the CAP is acceptable.
Closure Plan
The closure plan shall consist of sampling soil and groundwater and analyzing for the target contaminants
(using the appropriate SW-846 methods) in a manner sufficient to ensure that all previously contaminated soils
and groundwater are below the maximum allowable contaminant concentration levels established for this site
in accordance with 401 KAR 42:080, and that any potentially impacted soils and/or groundwater have been
sufficiently sampled to ensure that no secondary contamination has occurred due to migration of the
contaminant plume(s) and/or the production of daughter products.
44
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Enhanced Bioremediation CAP Checklist
This checklist is provided to help evaluate the appropriateness of the enhance bioremediation to the
remediation of the contamination at the site and the completeness of the Corrective Action Plan (CAP).
Submit the completed checklist with the CAP. Additional information may be required to determine how
enhanced bioremediation will accomplish cleanup goals at this site, or a re-evaluation of alternative
technologies is required prior to submitting the CAP.
Answer the questions below and insert the page numbers) of the CAP on which the relevant
information is included. If the relevant information is not included in the CAP, the CAP shall be amended to
include the necessary relevant information.
Contaminant Characterization
Answer Page #
Are the contaminants present at the site likely to migrate off site?
Has all free product been recovered?
What are the petroleum hydrocarbon contaminant concentrations in the soils at the
site?
What are the petroleum hydrocarbon contaminant concentrations in the groundwater
at the site?
At what concentrations are organic vapors present in the soils at the site?
Are the target chemical constituents present at the site predominantly water-soluble?
Are the target chemical constituents present predominantly n-alkanes, n-
alkylaromatics, and aromatic compounds in the Cs to C22 range?
Environmental Parameters
Answer Page #
What is the soil moisture content at the site as a percentage of the field capacity?
What is the air-filled pore space of soils at the site?
What is the saturated hydraulic conductivity for unsaturated zone soils (in cm/sec)?
What are the water-holding capacities of the soils at the site?
What is the range of soil temperatures at the site?
What is the range of groundwater temperatures at the site?
What is the range in intrinsic pH of the soils at the site?
45
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What is the range in intrinsic pH of the groundwater at the site?
What are the dissolved oxygen levels in contaminated groundwater at the site?
What is the redox potential, Eh, for the soils at the site?
What is the redox potential, Eh, for impacted groundwater at the site?
What is the total organic nitrogen content of soils at the site?
What is total organic nitrogen content of impacted groundwater at the site?
What is the carbon:nitrogen:phosphate ratio in the soils at the site?
Are other nutrients {e.g. K, Ca, Mg, S) found in adequate supply for metabolic needs
in the soils and/or groundwater at the site?
If soil/groundwater oxygen levels are low, are other terminal electron acceptors
present in the soil/groundwater that may be used for microbial metabolism?
What is the hydraulic conductivity of the contaminated groundwater at the site?
Has the groundwater flow rate and direction been determined?
Has the contaminant plume migration/dispersion rate and direction been
determined?
Have all other relevant groundwater/aquifer parameters been determined in order
that proper application and monitoring of enhanced bioremediation may occur?
Microbial Characterization
Answer Page #
Has a viable microbial community been demonstrated in the soils/groundwater at the
site either by enumeration studies, column studies, or respirometry?
Does the CAP include the results of enumeration studies or column studies
conducted to determine the distribution of total aerobic heterotrophs and total
hydrocarbon degraders in the soil/groundwater at the site?
Does the CAP include the results of any respirometry studies conducted to monitor
microbial activity at the site?
Enhancement Plan
Is biostimulation proposed to be used?
What biostimulation technique is to be used?
46
Answer Page #
-------
What is the source for 02?
What is the range of 02?
What is the source and supplier of other nutrients?
What is the electron receptor?
What were the initial ranges of nitrogen and phosphorous?
What are the target ranges for nitrogen and phosphorous?
Is the stoichiometric calculation of 02 demand included in the CAP?
Is bioaugmentation proposed to be used?
Do microbial population studies substantiate the need for bioaugmentation?
What is the source and supply of nutrients to be used?
What is the initial nitrogen:phosphorous ratio?
What is the target nitrogen:phosphorous ratio?
Does the plan for enhancing site conditions satisfy inadequate conditions noted in
the site characterization or in the checklists above?
Does the plan for enhancing site conditions present a potential for causing migration
of the plume beyond established acceptable boundaries?
Does the plan for enhancing site conditions present a potential for reducing
concentrations of original contaminants by dilution?
Monitoring Plan
Answer Page #
Does the CAP propose to monitor nitrogen residuals?
Does the CAP propose to monitor potential migration of the plume beyond
acceptable boundaries?
Does the CAP monitoring plan include a description of the monitoring approaches
to be used?
Does the CAP monitoring plan include a description of the sampling plan? Sampling
is to be conducted minimally, on a quarterly basis?
Does the CAP monitoring plan include a list of the analytes to be sampled?
Does the CAP monitoring plan include the sampling and analytical methods to be
used?
47
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Will the CAP monitoring plan provide an indication that contamination is decreasing
over time?
Can the CAP monitoring plan isolate any decrease in concentration due to
degradation and not migration of the contaminants?
Does the CAP monitoring plan provide information regarding degradation rates?
Does the CAP monitoring plan provide information regarding the nature of
degradation at the site?
Does the CAP monitoring plan include monitoring changes in concentration of
original contaminants?
Does the CAP monitoring plan include monitoring changes in concentration of co-
reactants such as various nutrients (P04, NH„, NO2/NO3), electron acceptors (Ofe,
N03, Fe3+'2*,Mn4+'3+-2>,S04), and reaction by-products (C02, CH4l N2)?
Does the CAP contain an alternative plan if system performance monitoring indicates
that enhanced bioremediation will not attain cleanup levels below the maximum
allowable levels for contaminants in groundwater at the site or is not effective in
controlling migration of the contaminant plume?
Closure Plan
Answer Page #
Does the CAP closure plan provide for analyzing groundwater contaminant levels?
Does the CAP closure plan specify the methods for collecting and analyzing
confirmatory groundwater samples for closure?
Does the CAP closure-sampling plan include collecting groundwater samples in
those areas previously shown to be contaminated? (The previously demonstrated
horizontal and vertical extent of contamination in groundwater be sufficiently sampled
to determine that contamination in the groundwater has been reduced to below the
maximum allowable levels for the site.)
Does the CAP closure plan outline the methods for collecting and analyzing
confirmatory soil samples for closure?
Does the CAP closure sampling plan include collecting soil samples in those areas
previously shown to be contaminated? (The previously demonstrated horizontal and
vertical extent of contamination shall be sufficiently sampled to determine that
contamination in the soils has been reduced to below the maximum allowable levels
for the site.)
Does the CAP closure-sampling plan include collecting soil and groundwater
samples in those areas previously shown not to be contaminated? (Soil and
groundwater on the perimeter of the previously demonstrated horizontal and vertical
extent of contamination shall be sufficiently sampled to determine that reductions in
contaminant concentration in the soil and groundwater have not resulted from
migration.)
48
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Monitoring Only Plan (Intrinsic Bioremediation) as an Option for Corrective Action
Overview
Monitoring Only may be an option for remediation at UST sites if it can be demonstrated that the
existing contamination at the site will not migrate beyond the point of compliance and the contamination will
be attenuated by natural processes such as hydrolysis, volatilization, and naturally occurring biodegradation.
In addition, in order for Monitoring Only to be a viable option for remediation at a UST Site, it must be
demonstrated that the source of the contamination has been removed. Naturally occurring biodegradation
means degradation of organic compounds, in soil or groundwater, by indigenous microbes. Intrinsic
bioremediation may be a suitable remedial action at sites where the contaminants of concern are readily
biodegradable, site conditions are favorable, and the time necessary for bioremediation to achieve cleanup
levels in soils and groundwater is reasonable. In order to conduct a Monitoring Only Plan, contamination
levels at the point of compliance shall not exceed the levels stipulated for this site in accordance with 401 KAR
42:080.
Microbial populations and microbial activity may require enhancement by the introduction of nutrients
(e.g. nitrogen, phosphate) in order to reduce contaminant levels in the amount of time considered acceptable
for this corrective action, and/or to control plume migration. If artificial enhancement of microbial populations,
nutrients, soils gases, etc. are required, this is known as "enhanced" bioremediation. If "enhanced"
bioremediation is to be implemented as a remedial method at the site, the Enhanced Bioremediation Cap
Checklist shall be used.
Application of intrinsic bioremediation as a remediation technology requires that the site be evaluated
to ensure that the site conditions are appropriate for the technology being proposed, that the technology
proposed will not create resultant adverse conditions in the soil, air, or water, and that a sufficient monitoring
plan be developed. Intrinsic bioremediation can be a long-term remediation option requiring years or decades
to effect adequate cleanup of a site. Numerous factors affect the potential for, and rate of, bioremediation at
a given site, such as:
* soil moisture content * presence of suitable microbes
* porosity * contaminants present and their concentrations
* soil temperature * availability of nutrients
* soil pH * presence of other electron receptors
* 02 availability * redox potential (Eh)
* production of daughter products
(e.g. MEK)
Because of the dependence on these factors, adequate site characterization is essential for determining the
viability of intrinsic bioremediation as an option for corrective action at a given site. The characterization of
a site for evaluation of intrinsic bioremediation potential shall be part of the initial site investigation and
involves:
* characterization of the contaminants at a site;
* assessment of physicochemicaE conditions at the site and the presence of
appropriate nutrients; and
* in some cases, assessment of microbiological parameters to determine the presence
and viability of an appropriate microbial population may be necessary.
Characterization of site heterogeneity (e.g. anisotropic groundwater flow patterns, anisotropic soil permeability,
etc.) and the potential for further migration of contaminants shall be included in the site investigation. The
49
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number of samples necessary to adequately characterize a site for bioremediation will vary based on the
extent of contamination and the heterogeneity of the distribution of contamination at the site, and the
heterogeneity of the soils and groundwater flow at the site.
Contaminant Characterization
Contaminants Present and Their Concentrations
It is important to identify the contaminants at a site and determine whether there is a potential for off-site
migration of contaminants, and whether the contaminants are readily amenable to bioremediation.
Degradation of most volatile compounds is inhibited whenever organic vapors are present in high
concentrations in the soils. This can be due to either acute toxic effects and/or reduced oxygen levels. Acute
toxicity to microorganisms is unlikely if residual levels of volatile organic compound contaminants are less than
several hundred mg/kg.
Biodegradability
Most petroleum hydrocarbons are readily biodegradable through aerobic metabolism. Many are also
biodegraded by anaerobic metabolism, though at lower rates. In general the following are true:
* Water-soluble compounds are usually degraded faster than less soluble compounds;
* The n-alkanes, n-alkylaromatics, and aromatic compounds in the Cs to C& range are usually readily
biodegradable. These compound comprise a major portion of gasoline and diesel fuel;
* The n-alkanes, n-alkylaromatics, and aromatic compounds above C22 have very low water solubilities
which result in slow biodegradation rates; compounds are found in heavier oils;
* Condensed or fused aromatic and cycloparaffinic compounds with four or more rings have very low
biodegradation rates. These include most of the PAH compounds; and
* The rate of oxidation of straight-chain aliphatic hydrocarbons is inversely proportional to hydrocarbon
chain length.
Environmental Parameters
Characterization of environmental parameters at a site is necessary to determine whether the physical and
chemical conditions at the site are amenable to intrinsic bioremediation. The specific parameters that need
to be evaluated for a given site shall be determined on a site-specific basis. These parameters may include
the following:
soil moisture content
soil moisture holding capacity/
field capacity
soil porosity
intrinsic soil permeability
bulk density of soil
soil pH
soil water dissolved oxygen
soil gas oxygen content
storativity of impacted aquifer(s)
groundwater flow rate and direction
hydraulic conductivity of impacted
aquifer(s)
aquifer isotropy/anisotropy
groundwater temperature
organic matter content (OM)
total organic carbon (TOC)
total organic nitrogen (TON)
soil redox potential (Eh)
inorganic nitrogen (as NH3, N02, N03)
soluble phosphorus (o-P04)
"soluble manganese (Mn2*)
iron (Fe2*, Fe3*)
sulfate (S042")
plume migration rate and direction
hydraulic gradient
groundwater dissolved oxygen
groundwater Eh
groundwater pH
availability of nutrients
50
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* specific yield/specific retention of * homogeneity/heterogeneity of soil
impacted aquifers porosity and permeability
* homogeneity/heterogeneity of
groundwater flow
Microbiological Characterization
Assessing the presence of suitable microbes for degrading specific organic contaminants at a site is critical
for implementation of bioremediation as a remedial action. Petroleum hydrocarbon-degrading microbes are
widespread in the subsurface; in most cases they can be assumed to be present. However, some site
conditions, such as marginal environmental conditions, or high concentrations of contaminants or organic
vapors, make it necessary to determine whether a viable microbial population is present Based on the resuits
of enumeration studies it may be determined that bioremediation is unsuitable at the site.
Enumeration Studies
Microbial enumeration studies and column studies employ plate counts to determine relative numbers of total
aerobic heterotrophs and total hydrocarbon degraders as qualitative measures for "clean" versus
"contaminated" sites. These laboratory studies can provide evidence that the necessary microorganisms are
present at a site and that metabolic adaptation has occurred. However, it is difficult to relate these studies
to biodegradation potential directly, as laboratory conditions do not replicate site conditions. Enumeration
studies are probably most useful for comparison of the areas of highest contamination, where aerobic
microbial populations may be significantly reduced, to uncontaminated areas where normal microbial
populations may exist.
Respirometry
Respirometry is an indirect method for determining the presence of a viable microbial community at a site, and
provides an indication whether in situ biodegradation is occurring at the site. Soil respirometry measures 02
depletion/C02 production in the soil and can provide a measure of biological activity when compared with
background measurements outside the zone of contamination at the site. Increased Oz depletion/CQ
production in the contaminated area relative to the background ratios indicates that aerobic biodegradation
is occurring.
Monitoring Requirements
If the results of the site characterization indicate that intrinsic bioremediation is appropriate to the site
conditions and intrinsic bioremediation is proposed as a remedial action, a monitoring plan shall be developed
and implemented in order to evaluate the progress and effectiveness of bioremediation at the site. Monitoring
shall serve to:
* sufficiently monitor the entire extent of contamination;
* provide an indication that contaminant concentrations are decreasing over time;
* insure that the decrease in contaminant concentration is due to degradation, and not due to
contaminant migration or dilution;
* provide information regarding degradation rates; and
* it shall provide data regarding the nature of biodegradation at the site.
From the standpoint of evaluating remediation effectiveness, the monitoring need not distinguish between
biodegradation and abiotic degradation, or loss of contaminants (such as volatilization, etc.) resulting from
natural processes.
51
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Monitoring Plan
A variety of approaches and techniques are available for monitoring biodegradation. A variety of approaches
and/or techniques will likely be appropriate at most sites, especially if other remediation efforts are being used
in conjunction with bioremediation. The monitoring plan shall be developed to address the nature of the
contaminants and the physical conditions at the site. Monitoring shall be conducted to ensure that measured
loss of contaminants are not due to migration or dilution.
The monitoring plan, at a minimum, shall include:
* a description of the monitoring approaches and techniques to be used;
* a description of the sampling plan (minimally on a quarterly basis);
* establish benchmarks to monitor the progress of the remediation;
the analytes to be sampled; and
* the analytical methods to be used.
Monitoring Approaches
Change in concentrations of original contaminants
Confirmatory sample analysis for the target contaminants can be completed using the appropriate SW-846
methods. Soil and water samples may be taken from temporary constructions such as bore holes or direct-
push methods. Water samples can be taken from permanent monitoring wells constructed at the site. It is
necessary that the sampling monitor previously uncontaminated zones (both bielow and beyond the plume)
to ensure that decreases in contaminants have not been due to plume migration.
Change in concentration of co-reactants
Changes in concentration of various nutrients (P04, NH4, NOj/NC^), electron receptors (02, N03l Fe3*-2*, Mn
4*,3*.2+ S04), and reaction by-products (CQ, C4 , ) can potentially provide information on the type and
progress of biodegradation. These changes shall be compared to those in equivalent samples from outside
the area of contamination to provide control.
Changes in physical and physicochemical properties, appropriate to the media being sampled, can be
measured as well. These may include soil moisture content, soil/groundwater pH, redox potentials, and
temperature. Changes in these parameters can provide information for interpreting the other monitoring
results.
All groundwater monitoring wells shall be sampled and analyzed for the target contaminants minimally, on a
quarterly basis.
Closure Plan
The closure plan shall consist of sampling soil and groundwater and analyzing for the target contaminants in
a manner sufficient to ensure that all previously contaminated soils and groundwater are below the maximum
allowable contaminant concentration levels established for this site in accordance with 401 KAR 42:080 and
that any potentially impacted soils and/or groundwater have been sufficiently sampled to ensure that no
secondary contamination has occurred due to migration of contamination and/or the production of daughter
products.
52
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Monitoring Only (Intrinsic Bioremediation) CAP Checklist
This checklist is provided to help evaluate the appropriateness of the enhance bioremediation to the
remediation of the contamination at the site and the completeness of the Corrective Action Plan (CAP).
Submit the completed checklist with the CAP. Additional information may be required to determine how
enhanced bioremediation will accomplish cleanup goals at this site, or a re-evaluation of alternative
technologies is required prior to submitting the CAP.
Answer the questions below and insert the page numbers) of the CAP on which the relevant
information is included. If the relevant information is not included in the CAP, the CAP shall be amended to
include the necessary relevant information.
Contaminant Characterization
Answer Page #
Are the contaminants present at the site likely to migrate off site?
Has all free product occurring in soil and/or groundwater been recovered?
What are the petroleum hydrocarbon contaminant concentrations in the soils at the
site?
At what concentration are organic vapors present in the soils at the site?
Are the target chemical constituents present at the site predominantly water-soluble?
Are the target chemical constituents present predominantly n-alkanes, n-
alkylaromatics, and aromatic compounds in the C5 to C22 range?
Environmental Parameters
Answer Page #
What is the soil moisture content at the site as a percentage of the field capacity?
What is the air-filled pore space of the soils at the site?
What is the saturated hydraulic conductivity for unsaturated zone soils (in cm/sec)?
What are the water-holding capacities of the soils?
What is the range of the soil temperatures at the site?
What is the range of the groundwater temperatures at the site?
What is the range of the pH of the soils at the site?
What is the range of the pH of the groundwater at the site?
What are the dissolved oxygen levels in the contaminated groundwater at the site?
53
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What is the total organic nitrogen content of soils at the site?
What is the total organic nitrogen content of contaminated groundwater at the site?
What is the initial carbon:nitrogen:phosphate ratio in the soils at the site?
What is the target carbon:nitrogen:phosphate ratio in the soils at the site?
List any other nutrients (e.g. K, Ca, Mg, S) in soil and/or groundwater not present in
adequate supply for microbial metabolic needs?
If soil/groundwater oxygen levels are low, are other terminal electron acceptors
present in the soil/groundwater that may be used for microbial metabolism?
What is the hydraulic conductivity of the contaminated aquifer(s) at the site?
What are the groundwater flow rates and directions of the contaminated groundwater
at the site?
What are the contamination migration/dispersion rates and directions at the site?
Microbial Characterization
Answer Page #
Has a viable microbial community been demonstrated in the soils/groundwater at the
site either by enumeration studies, column studies, or indirectly by respirometry?
Does the CAP include the results of enumeration studies and/or column studies
conducted to determine the distribution of total aerobic heterotrophs and total
hydrocarbon degraders in the soil/groundwater at the site?
Does the CAP include the results of any respirometry studies conducted to monitor
initial microbial activity at the site?
Monitoring Plans
Answer Page #
Does the CAP propose to monitor nitrogen residuals?
Does the CAP propose to monitor potential migration of the plume beyond
acceptable boundaries?
Does the CAP monitoring plan include a description of the monitoring approaches
to be used?
Does the CAP monitoring plan include a description of the sampling plan? Sampling
is to be conducted, at a minimum, on a quarterly basis, minimally.
Does the CAP monitoring plan include a list of the analytes to be sampled?
54
-------
Does the CAP monitoring plan include the sampling and analytical methods to be
used?
Will the CAP monitoring plan provide an indication that contamination is decreasing
over time?
Can the CAP monitoring plan isolate any decrease in concentration due to
degradation and not migration of the contaminants?
Does the CAP monitoring plan provide information regarding degradation rates?
Does the CAP monitoring plan provide information regarding the nature of
degradation at the site?
Does the CAP monitoring plan include monitoring changes in concentration of
original contaminants?
Does the CAP monitoring plan include monitoring changes in concentration of co-
reactants such as various nutrients (P04) NH4l N02/N03), electron acceptors (Q>,
N03, Fe3+>,Mn4+'3+'2+,S04), and reaction by-products (C02l CH4, N2)?
Does the CAP contain an alternative plan if system performance monitoring indicates
that intrinsic bioremediation will not attain cleanup levels below the maximum
allowable levels for contaminants in groundwater at the site or is not effective in
controlling migration of the contaminant plume?
Closure Plan
Answer Page #
Does the CAP closure plan provide for analyzing groundwater contaminant levels?
Does the CAP closure plan specify the methods for collecting and analyzing
confirmatory groundwater samples for closure?
Does the CAP closure-sampling plan include collecting groundwater samples in
those areas previously shown to be contaminated? (The previously demonstrated
horizontal and vertical extent of contamination in groundwater be sufficiently sampled
to determine that contamination in the groundwater has been reduced to below the
maximum allowable levels for the site.)
Does the CAP closure plan outline the methods for collecting and analyzing
confirmatory soil samples for closure?
Does the CAP closure sampling plan include collecting soil samples in those areas
previously shown to be contaminated? (The previously demonstrated horizontal and
vertical extent of contamination shall be sufficiently sampled to determine that
contamination in the soils has been reduced to below the maximum allowable levels
for the site.)
Does the CAP closure-sampling plan include collecting soil and groundwater
samples in those areas previously shown not to be contaminated? (Soil and
55
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groundwater on the perimeter of the previously demonstrated horizontal and vertical
extent of contamination shall be sufficiently sampled to determine that reductions in
contaminant concentration in the soil and groundwater have not resulted from
migration.)
56
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EXAMPLE PUBLIC NOTICE
Kentucky Department for Environmental Protection
Division of Waste Management
Underground Storage Tank Branch
14 Reilly Road
Frankfort, Kentucky 40601
NOTIFICATION OF PROPOSED CORRECTIVE ACTION PLAN
The (UST site name, UST identification number), located at (address: Street, City, County, Kentucky) has
proposed a plan to clean up (type of contamination) contamination from the (impacted media).
An underground storage tank system caused a release of (regulated substance released). A site investigation
has been completed to determine the horizontal and vertical extent of contamination in the environment.
Proposed corrective measures include (technology or technologies to be used). The proposed activities are
designed to restore the environment to its original condition prior to contamination.
The Kentucky Department for Environmental Protection proposes to accept the Corrective Action Plan. This
decision is based on a thorough review of site conditions, Kentucky statutes and regulations.
Copies of the Corrective Action Plan are available from the Division of Waste Management at the above
address or by contacting the Records Custodian for the Underground Storage Tank Branch at (502) 564-6716
or (800) 928-4273. Persons wishing to submit written comments on the Corrective Action Plan should direct
them to the Division of Waste Management within thirty (30) days after publication of this notice.
Upon request, the Cabinet will provide a copy of the Corrective Action Plan in an alternate format.
57
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401 KAR 42:060
UNDERGROUND STORAGE TANK SYSTEM
RELEASE RESPONSE AND INITIAL ABATEMENT
REQUIREMENTS OUTLINE

Facility Well/Spring Number

2
Sample Sequence X (Greater than "1" only in case of duplicates or zones)

If sample is a Blank, specify Type (Field, Trip, Method, or Equipment)

Sample Date and Time (Month/Day/Year hourrminutes)

Duplicate ("Y" or "N")3

Split ("Y" or "N")4

Facility Sample ID Number (if applicable)

Laboratory Sample ID Number (if applicable)

Date of Analysis (Month/Day/Year)

Gradient with respect to monitored unit (UP, DOWN, SIDE)

CAS RN5

SYSTEMATIC PARAMETER NAME
h
D
UNIT
OF
MEASURE
METHOD #
DETECTED
VALUE OR
PQL7
mm
lii
mm
mm
ilsi
DETECTED
VALUE OR
PQL
F
L
A
G
S
DETECTED
VALUE OR
POL
iiii
III
Wm
lii.
Ill;
DETECTED
VALUE OR
PQL
F
L
A
G
S
S0906 - -
0
Static Water Level Elevation

FMSL

S0907 - -
0
Temperature

DEG C

S0145 - -
1
Specific Conductance

MMHOS

S0130 - -
0
Chemical Oxygen Demand

MG/L

S0268 - -
1
Total Organic Carbon

MG/L

-------
UST GROUNDWATER SAMPLE ANALYSIS FORM (continued)
UST Facility Name: UST Facility ID#
AKGWA1 Well Number

Facility Well/Spring Number

CAS RN5

SYSTEMATIC PARAMETER NAME
T6
D
UNIT
OF
MEASURE
METHOD #
DETECTED
VALUE OR
PQL7
SSKfif
:#£t
A
licit
DETECTED
VALUE OR
PQL
F
L
A
G
S
DETECTED
VALUE OR
PQL
F
I
A
&
S
DETECTED
VALUE OR
PQL
F
L
A
G
S
S0296 - -
0
PH

71-43-2
0
Benzene

MG/L

108-88-3
0
Toluene

MG/L

100-41-4
0
Ethylbenzene

MG/L

1330-20-7
4
Xylene

MG/L

56-55-3
0
8enzo(a)anth racene

MG/L

50-32-8
0
Benzo(a)pyrene

MG/L

205-99-2
0
Benzo(b)fluoranthene

MG/L

218-01-9
0
Chrysene

MG/L

53-70-3
0
Dibenzo(a,h>anthracene

HG/L

193-39-5
0
Inderto(1,2,3-cd)pyrene

MG/L

83-32-9
0
Acenaphthene

MG/L

91-20-3
0
Naphthalene

MG/L

207-08-9
0
Benzo(k)fluoranthene

MG/L

208-96-8
0
Acenaphthylene

MG/L

120-12-7
0
Anthracene

MG/L

191-24-2
0
Benzo(gh<)perylene

MG/L

-------
UST GROUNDWATE ,MPLE ANALYSIS FORM (continued)
UST Facility Name: UST Facility ID#_
AKGWA1 Well Number

Facility Well/Spring Number

CAS RN5

SYSTEMATIC PARAMETER NAME
T<5
0
UNIT
OF
MEASURE
METHOD #
DETECTED
VALUE OR
POL7
SBSfS
Ills
IfAif
lldis-
wM.
DETECTED
VALUE OR
POL
F
L
A
G
S
DETECTED
VALUE OR
PQL
iii
111
iisi
iSil
DETECTED
VALUE OR
PQL
f
L
A
G
S
206-44-0
0
Fluoranthene

MG/L

86-73-7
0
Fluorene

MG/L

85-01-8
0
Phenanthrene

MG/L

129-00-0
0
Pyrene

MG/L

7439-92-1
1
Total Lead

MG/L

•

1 AKGWA = KDEP official well registration number. AKQWA # is 0000-0000 for any type of blank. STANDARD FLAGS
2 Sequence tf will be "1" unless this sample is a duplicate (multiple samples in this report are taken from the same monitoring point).
3 Duplicate = "Y" indicates that the sample is a duplicate. The sample or its corresponding duplicate will have a sequence # > 1. J = Estimated value
4 Split = "Y" indicates that the sample is part of a split. The sample's corresponding split will be processed by another lab. B = Analyte found in blank
5 Chemical Abstracts Service Registry Number used whenever available. Is beginning with "S" are used for database entry A = Average value
only - they are NOT to be used for laboratory identification. N — Presumptive ID
6 "T" = TOTAL; "D" = DISSOLVED. D = Concentration from analysis of a secondary dilution factor
7 " < " indicates value shown is Practical Quantitation Limit (PLEASB USB "
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Effective Date - November 15, 1995
401 KAR 42:070. Out-of-service UST Systems, Temporary Closure and Permanent
Closure of UST Systems, and Change-in-service of UST Systems.
RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, and 224.60; 40 CFR
Part 280 Subpart G and Part 281; and 42 USC 6991c
STATUTORY AUTHORITY: KRS 224.10-100, 224.60-105, and 224.60-137; 40
CFR Part 280 Subpart G and Part 281; and 42 USC 6991c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs that provide for the
prevention, abatement, and control of contaminants that may threaten the environment. KRS
224.60-105(2) requires the Cabinet to regulate underground storage tank (UST) systems by
requiring notification, minimum construction and performance standards, leak detection, record
keeping, release reporting, corrective action, closure, financial responsibility, and other standards
to protect public health and the environment. KRS 224.60-105(3) requires the Cabinet to establish
a regulatory program that implements federal requirements for UST systems. This chapter
identifies requirements for UST systems. This administrative regulation establishes the
requirements for out-of-service UST systems, temporary and permanent closure of UST systems,
and change-in-service of UST systems.
Section 1. Applicability.
(l)(a) This administrative regulation shall apply to any owner or operator of a UST
system that has a release confirmed on or after January 1, 1996, or has submitted a Notice of
Intent to Permanently Close Underground Storage Tank System Form (DEP Form 5025)
(incorporated by reference in Section 2 of this administrative regulation) that has been received
by the Underground Storage Tank Branch of the Division of Waste Management on or after
January 1, 1996.
(b) The owners and operators of a UST system for which a Notice of Intent to
Permanently Close Underground Storage Tank System Form (DEP Form 5025) was received (or
that reported a confirmed release) between April 18, 1994 and January 1, 1996 shall comply with
the closure requirements (or, for a confirmed release report, the corrective action requirements)
in existence at the time the Notice of Intent to Permanently Close Underground Storage Tank
System Form (DEP Form 5025) was received by the Underground Storage Tank Branch of the
Division of Waste Management (or, for a confirmed release report, the requirements in existence
at the time the release was reported), unless a written request, signed by the owner or operator,
is received by the Cabinet. This request shall indicate that the owners and operators intend to
close the site as specified in subsection (2) of this section and Sections 3 through 7 of this
administrative regulation.
(c) The owners and operators of a UST system for which a Notice of Intent to
Permanently Close Underground Storage Tank System Form (DEP Form 5025) was received by
401 KAR 42:070 - 1
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the Underground Storage 1 auk Branch of the Division of Waste Management (or that reported a
confirmed release) prior to April 18, 1994 shall comply with the closure requirements (or, for a
confirmed release report, the corrective action requirements) in existence at the time the Notice
of Intent to Permanently Close Underground Storage Tank System Form (DEP Form 5025) was
received by the Underground Storage Tank Branch of the Division of Waste Management (or, for
a confirmed release report, the requirements in existence at the time the release was reported),
unless a written request, signed by the owner or operator, is received by the Cabinet. This
request shall indicate that the owners and operators intend to close the site as specified in
subsection (2) of this section and Sections 3 through 7 of this administrative regulation, or as
specified in 401 KAR 42:071.
(d) If the Cabinet determines that a UST system that closed before December 22, 1988
poses a current or potential threat to human health, safety, or the environment, the owner or
operator shall assess the excavation zone and close the UST system in accordance with subsection
(2) of this section and Sections 3 through 7 of this administrative regulation.
(2) The documents incorporated by reference in Section 2 of this administrative
regulation shall be used in meeting the requirements of this administrative regulation.
Section 2. Incorporation by Reference.
(1) The following documents are hereby incorporated by reference:
(a) "Underground Storage Tank System Closure Outline" (October 1995);
(b) "Notice of Intent to Permanently Close Underground Storage Tank System Form,"
DEP Form 5025 (July 1995);
(c) "Closure Assessment Report Form," DEP Form 4058 (July 1995);
(d) "Kentucky Underground Storage Tank Assessment Well Form," DEP Form 5033
(July 1995);
(e) American Petroleum Institute Recommended Practice 1604, "Removal and Disposal
of Used Underground Petroleum Storage Tanks" (December 1987);
(f) American Petroleum Institute Publication 2015, "Safe Entry and Cleaning of
Petroleum Storage Tanks" (May 1994); and
(g) American Petroleum Institute Recommended Practice 1631, "Interior Lining of
Underground Storage Tanks" (April 1992).
(2) The documents referenced in subsection (1) of this section are available for
inspection and copying, subject to copyright law, at the Underground Storage Tank Branch of the
Division of Waste Management, 14 Reilly Road, Frankfort, Kentucky 40601, (502) 564-6716,
from 8:00 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays.
Section 3. Temporary Closure.
(1) If a UST system is temporarily closed, the owners and operators shall continue
operation and maintenance of corrosion protection and release detection in accordance with 401
KAR 42:030 and 401 KAR 42:040. If a release is suspected or confirmed, the owners and
operators shall comply with 401 KAR 42:050 and 401 KAR 42:060. Release detection is not
required as long as the UST system is empty.
401 KAR 42:070 - 2
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(2) If a UST system is temporarily closed for more than three (3) months, the owners
and operators shall comply with the following requirements:
(a) Leave vent lines open and functioning;
(b) Cap and secure all other lines, pumps, man ways, and ancillary equipment; and
(c) Submit an amended Notification for Underground Storage Tank System Form (DEP
Form 5024) (incorporated by reference in 401 KAR 42:020) to the Underground Storage Tank
Branch of the Division of Waste Management indicating that the UST system has changed to
temporary closure status.
(3) If a UST system is temporarily closed for more than twelve (12) months, the
owners and operators shall permanently close the UST system in accordance with Section 4 of this
administrative regulation if it does not meet either the performance standards in 401 KAR 42:020
(for new UST systems) or the upgrading requirements in 401 KAR 42:020 (for existing UST
systems, except that the spill and overfill equipment requirements do not have to be met). The
owners and operators shall permanently close the substandard UST system at the end of this
twelve (12)-month period, unless the Cabinet provides an extension of the twelve (12)-month
temporary closure period. The owners and operators shall complete a closure assessment, in
accordance with Section 5 of this administrative regulation, before applying for an extension.
Section 4. Permanent Closure and Changes-in-Service.
(1)(a) Owners and operators shall notify the Division of Waste Management of their intent
to permanently close or make a change-in-service for a UST system at least thirty (30) days prior
to beginning either the permanent closure or change-in-service under subsections (2) and (3) of
this section. This notice shall be submitted on the Notice of Intent to Permanently Close
Underground Storage Tank System Form (DEP Form 5025) (incorporated by reference in Section
2 of this administrative regulation) or on a Cabinet-approved form containing the same
information. Initial abatement action shall not alleviate the owners and operators from notifying
the Cabinet of the intent to permanently close a UST system; however, the Cabinet may specify
a shorter notification time prior to permanent closure.
(b) The Notice of Intent to Permanently Close Underground Storage Tank System
Form shall only be valid for twelve (12) months following signature by the UST system owner,
operator, or authorized representative. The closure assessment required under Section 5 of this
administrative regulation shall be performed after submitting notification to the Cabinet, but prior
to completing the permanent closure or change-in-service.
(2) To permanently close a UST system, the owners and operators shall empty and
clean the UST system by removing all tank contents and residual tank materials. All UST systems
permanently taken out of service shall be either removed from the ground or filled with an inert
solid material.
(3) Continued use of a UST system to store a non-regulated substance shall constitute
a change-in-service. Before a change-in-service, the owners and operators shall empty and clean
the UST system by removing the tank contents and residual tank materials. The owners and
operators shall also conduct a closure assessment in accordance with Section 5 of this
administrative regulation.
401 KAR 42:070-3
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Section 5. Assessing the Site at a Temporary Closure, Permanent Closure or
Change-in-Service.
(1)(a) Before completing permanent closure or change-in-service of a UST system, or at
the end of the twelve (12)-month temporary closure period identified in Section 3(3) of this
administrative regulation, the owners and operators shall measure for the presence of a release
where contamination is most likely to be present. In selecting sample types, sample locations, and
measurement methods, the owners and operators shall consider the method of closure, the nature
of the stored substance, the type of backfill, the depth to groundwater, and other factors
appropriate for identifying the presence of a release. The requirements of this paragraph shall be
satisfied if one (1) of the external release detection methods allowed in 401 KAR 42:040 is
operating in accordance with the requirements in 401 KAR 42:040 at the time of closure and
indicates that no release has occurred during the life of the UST system.
(b) The closure assessment required by paragraph (a) of this subsection shall be
performed in accordance with the requirements of the Underground Storage Tank System Closure
Outline (incorporated by reference in Section 2 of this administrative regulation). The Closure
Assessment Report Form (DEP Form 4058) (incorporated by reference in Section 2 of this
administrative regulation) shall be received by the Underground Storage Tank Branch of the
Division of Waste Management within ninety (90) days after UST system removal, closure in
place, or change-in-service.
(2) If contaminated soils, contaminated groundwater, or free product as a liquid or
vapor is discovered under subsection (1) of this section, or by any other manner, the owners and
operators shall begin initial response, initial abatement, site check, initial site characterization,
free product removal, investigations for soil and groundwater contamination, corrective action,
and public participation, in accordance with 401 KAR 42:060.
(3) The handling, transportation, and disposal of any regulated substance from a UST
system and any contaminated soils, backfill materials, groundwater, cleaning liquids, and other
similar materials removed from the UST system or facility shall be performed in accordance with
applicable requirements of 401 KAR Chapters 30 through 49.
Section 6. Closure Records.
(1) In accordance with 401 KAR 42:030, the owners and operators shall maintain
records that demonstrate compliance with closure requirements under Section S of this
administrative regulation. The results of the closure assessment required by Section 5 of this
administrative regulation shall be maintained for at least three (3) years after receipt of the closure
letter indicating that no further action is required for the permanent closure or change-in-service.
(2) The records required by subsection (1) of this section shall be maintained by either
the owner or operator who closed the UST system or by the current owner or operator of the
facility. If the records cannot be maintained at the facility, they shall be mailed to the
Underground Storage Tank Branch of the Division of Waste Management.
Section 7. Extensions. The owner or operator of a UST system may request
extension of a time frame for any report required by this administrative regulation. The extension
401 KAR 42:070 - 4
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request shall be submitted in writing and received by the Underground Storage Tank Branch of
the Division of Waste Management prior to the deadline. The Cabinet may grant extensions, if
warranted.
401 KAR 42:070 - 5
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401 KAR 42:070
UNDERGROUND STORAGE TANK SYSTEM
CLOSURE OUTLINE

Figure
D.
Removed Underground Storage Tank(s) Bill of Sale (21)

Figure
E.
Certification of Empty Tank(s) (22)

LIST OF TABLES
Table A. Analytical Requirements for Soil Samples (13)
Table B. Analytical Requirements for Water Samples (15)
Table C. Appropriate Containers, Sample Sizes, Preservation Techniques, and
Maximum Holding Times (16)
ii
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UNDERGROUND STORAGE TANK SYSTEM
CLOSURE OUTLINE
Natural Resources And Environmental Protection Cabinet
Division of Waste Management
Underground Storage Tank Branch
14 Reilly Road, Frankfort, Kentucky 40601
(502) 564-6716 or 1-800-928-4273
1.0 INTRODUCTION
This document outlines requirements for owners and operators of underground storage tank
(UST) systems regarding the documentation of permanent closure (by removal or closure in place) and
regarding soil and water sampling to assess UST sites for permanent closure according to Kentucky
Administrative Regulations 401 KAR 42:070.
The requirements for notification and for submission of information to the Underground Storage
Tank (UST) Branch are applicable to every permanent closure of a regulated UST system. The Cabinet
reserves the right to require additional information or sampling in order to clarify permanent closure
documentation.
For definitions of terms used within this outline, refer to 401 KAR 42:005.
1.1 Regulated Petroleum UST Systems
This document shall be used in conjunction with the Petroleum Underground Storage
Tank System Facility Classification Outline (Facility Classification Outline) incorporated by
reference in 401 KAR 42:080, dated October 1995, which specifies actions and allowable
constituent levels in soil and groundwater for permanent closure of regulated petroleum UST
systems.
Requirements for additional documentation of closure activities (beyond those presented
in this document) are presented in the Facility Classification Outline.
1.2 Regulated Non-Petroleum UST Systems
Sites with regulated non-petroleum UST systems shall conduct soil and water sampling
in accordance with Sections 3.0 and 4.0 of this outline. Section 5.0 shall be followed for
sample analysis requirements although, as indicated in Tables A and B (pages 13 and 15), the
UST Branch shall be contacted for required methods, detection limits, and allowable constituent
levels for soil and groundwater. Section 6.0 of this outline specifies the requirements for
disposal and reuse of materials resulting from permanent closure.
1.3 UST Systems Not Regulated under 401 KAR Chapter 42
Closure requirements for UST systems that are not regulated under 401 KAR Chapter
42 may be obtained by contacting the Superfund Branch or the Hazardous Waste Branch at
(502) 564-6716.
2.0 PERMANENT CLOSURE PROCESS
The permanent closure process records all activities associated with the permanent closure of
regulated UST systems and requires the submission of specific documentation to the UST Branch. The
requirements for notification and for submission of information are applicable to every permanent
1
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closure of a regulated UST system. Required forms, appendices, and addenda submitted shall be
complete and accurate. In addition, all information submitted shall comply with the following
requirements:
• Include the UST facility identification (ID) number on each document submitted. If the number
is unknown, contact the UST Branch, Administrative Section, at (502) 564-6716 or 1-800-
928-4273; and
• Submit two (2) separate copies, or the original and one (1) copy, of each required document.
An original signature shall be included on all Department for Environmental Protection (DEP)
forms.
2.1 Notice of Intent
The permanent closure process shall begin with the submission of a completed Notice
of Intent (NOI) to Permanently Close Underground Storage Tanks Form (DEP5025/07/95) to
the regional office serving the county where the UST system will be permanently closed. This
form shall be submitted a minimum of thirty (30) days prior to the permanent closure of a UST
system(s). The NOI shall only be valid for twelve (12) months following signature by the tank
owner or operator or their authorized representative. If this form is not submitted thirty (30)
days prior to permanent closure, the facility shall be in violation of this regulation.
A listing of the regional offices may be obtained by contacting the UST Branch.
2.2 Regional Office Inspection
Schedule an on-site closure inspection by contacting the regional office serving the area
where the UST system will be closed at least ten (10) days prior to permanent closure. If the
regional office is not contacted, the facility shall be in violation of this regulation. The function
of the regional office inspector is to observe and document activities at the site during
permanent closure or subsequent site inspections.
2.3 UST Systems Remover Certification Program
Effective April 1, 1991, in accordance with 815 KAR 30:060, permanent closure of any
UST system shall be performed by a certified underground petroleum storage tank contractor.
The State Fire Marshal's (SFM) office administers this certification program. Anyone
performing UST system permanent closures or installations shall be certified by the SFM
program, and proof of certification shall be supplied, upon request, to Division of Waste
Management (DWM) representatives. The contractor's name, company name, and SFM
certification number shall be indicated on the Closure Assessment Report (CAR) form
(DEP4058/07/95).
For more information or for a list of certified contractors, contact the SFM office at
(502) 564-3626.
2.4 Closure Assessment Report
The CAR form (DEP4058/07/95) shall be signed by a Professional Engineer registered
with the Kentucky Board of Registration for Professional Engineers and Land Surveyors, or a
Professional Geologist registered with the Kentucky Board of Registration for Professional
2
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Geologists and shall be submitted to the UST Branch within ninety (90) days following the
permanent closure of a UST system.
3.0 SOIL SAMPLE COLLECTION REQUIREMENTS
Sites with regulated petroleum UST systems shall collect soil samples in accordance with this
section if so prescribed in the Facility Classification Outline.
Sampling shall be conducted in accordance with 40 CFR 260.11, specifically per "Test Methods
for Evaluating Solid Waste, Physical/Chemical Methods" (United States (US) Environmental Protection
Agency (EPA) Publication SW-846 (US EPA SW-846)) to ensure that a representative sample is
collected. Soil samples shall be collected with a corer, a trowel, or a similar instrument (preferably
made of stainless steel); however, if safety conditions warrant, samples may be obtained from a
backhoe bucket. Recognized methods, in accordance with US EPA Standard Operating Procedures,
shall be followed for decontamination of all sampling equipment. For information about the Standard
Operating Procedures, contact the US EPA, Region IV, Environmental Services Division, College Station
Road, Athens, Georgia 30613 or call (706) 546-3300.
The following steps shall be followed for collection of soil samples from the tank pit and piping
trench areas:
1. All preparations for soil sampling shall be made prior to excavation activities.
2. When removing the tank(s) or piping, backfill material shall be excavated. Once all backfill
material has been removed, excavation activities shall cease and initial soil samples shall be
collected from the excavation zone.
3. Soil samples shall be collected within four (4) hours of removal of the tank(s) or piping or
the termination of excavation activities. Soil samples shall be collected in accordance with
Sections 3.1, 3.2, and 3.3.
4. Soil samples shall be properly preserved, delivered to the laboratory, and analyzed
within seventy-two (72) hours of collection.
5. If analytical results indicate soil contamination levels are above those allowed in the
Facility Classification Outline, continued excavation shall be permitted in intervals of up to 382
cubic meters (500 cubic yards).
6. Once up to 382 cubic meters (500 cubic yards) have been removed, excavation activities
shall cease. At this time, additional soil samples shall be collected from the areas of the
excavation zone which previously exhibited soil contamination levels above those allowed in
the Facility Classification Outline.
7. Soil samples shall be collected in accordance with step # 3 and analyzed in accordance with
step # 4.
8. If excavation of soil is to continue after analytical results of the initial sampling event have
been received, the intervals of excavating and sampling (as outlined above in steps # 3, 4, 5,
and 6) shall be repeated until the soils meet the contamination levels allowed in the Facility
Classification Outline.
3
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Note: if the excavated material is disposed of at a permitted landfill or landfarming facility and
removed in accordance with Section 3.0, additional sampling beyond that required by the
permitted disposal facility shall not be required. See Section 3.3 for additional information.
For alternative corrective action technologies to address elevated contamination levels in the
soil and groundwater, refer to the Underground Storage Tank System Corrective Action Plan Outline
incorporated by reference in 401 KAR 42:060.
Two (2) separate copies of all sample analyses shall be submitted with chain-of-custody (COC)
documentation to the UST Branch as appendices or addenda to the CAR form. The sample analyses
shall be grouped chronologically in the CAR (e.g. initial sampling, 1 st excavation, 2nd excavation, etc.).
All sampling locations shall be indicated on a site map(s) as an appendix or an addendum to the CAR
form. Site maps shall be to scale and include a north arrow and a legend. All soil samples shall be
placed into appropriate containers and analyzed for applicable constituents as required in Section 5.0
of this outline.
Soil borings shall be properly abandoned upon collection of samples and termination of borings.
Properly abandoned is considered to be plugged, bottom to top, in a manner to prevent communication
of surface water and groundwater, and communication between two (2) or more water-bearing zones
through the boring.
3.1 Soil Sampling: Tank or Piping Removed from the Ground
The following subsections outline the procedures for the collection of representative
samples from the tank pit and piping trench areas of UST systems to be removed from the
ground. Refer to Section 3.0 for sampling procedures. Figure A (page 5) illustrates locations
for sample collection as discussed in the following three (3) subsections. If soil samples cannot
be collected as described, see Section 3.5 for deviations from sampling requirements.
3.1.1 Tank Pit Walls
Each 7.60 meter (twenty-five (25) foot) section of each tank pit wall shall be
sampled in the following manner:
• Grid each 7.60 meter (twenty-five (25) foot) section of the tank pit wall as
shown in Figure A (page 5); and
• Collect one (1) composite soil sample consisting of a grab sample from each of
the four (4) portions of the grid; within each portion, sample where
contamination is most likely to be present. Place samples into appropriate
containers and have them analyzed at a laboratory.
A separate container shall be used for each 7.60 meter (twenty-five (25) foot)
section of each tank pit wall. If a tank pit wall(s) or a tank pit wall section is less than
7.60 meters (twenty-five (25) feet) in length, one (1) composite sample shall be
collected and analyzed for the tank pit wall or the tank pit wall section.
3.1.2 Tank Pit Bottom
Each 7.60 meter (twenty-five (25) foot) section of the tank pit bottom shall be
sampled in the following manner:
4
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Figure A
Soil Sample Locations - Tank or Piping Removed from Ground
\
1
1

\
1
I
/

5
5

2
2

/
3
3
N

3
3 \
25 ft.
Tank Pit
6
Pump
Island
25 ft.
Piping Trench
1 • Grab sample location
5
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• Grid each 7.60 meter (twenty-five (25) foot) section of the bottom of the tank
pit area as shown in Figure A (page 5); and
• Collect one (1) composite soil sample consisting of a grab sample from each
of the four (4) portions of the grid; within each portion, sample where
contamination is most likely to be present. Place samples into appropriate
containers and have them analyzed at a laboratory.
Use a separate container for each 7.60 meter (twenty-five (25) foot) section
of the tank pit bottom. If the tank pit bottom or a tank pit bottom section is less than
7.60 meters (twenty-five (25) feet) in length, one (1) composite sample from the tank
pit bottom shall be collected and analyzed for the tank pit bottom or the tank pit bottom
section.
If bedrock is encountered and no bottom sample is collected, a
hydrogeologically downgradient groundwater sample may be required. Refer to
Section 4.2 for requirements for the collection of downgradient groundwater samples
(for petroleum UST systems see the Facility Classification Outline).
3.1.3 Piping Trench
Each 7.60 meter (twenty-five (25) foot) section of the piping trench shall be
sampled in the following manner:
• Grid each 7.60 meter (twenty-five (25) foot) section of the piping trench as
shown in Figure A (page 5). The area under the dispenser island is considered
to be part of the piping trench; and
• Collect one (1) composite soil sample consisting of a grab sample from each
portion of the grid; within each portion, sample where contamination is most
likely to be present. Place samples into appropriate containers and have them
analyzed at a laboratory.
Use a separate container for each 7.60 meter (twenty-five (25) foot) section
of the piping trench. If a piping trench or a piping trench section is less than 7.60
meters (twenty-five (25) feet) in length, one (1) composite sample shall be collected
and analyzed for the piping trench or the piping trench section. If the total length of
the piping trench is located within the tank pit excavation, no sample analysis for the
piping trench is required, but a statement of explanation shall be included on the CAR
form.
3.2 Soil Sampling: Tank or Piping Closed in Place
The following subsections outline procedures for the collection of representative
samples from the tank pit and piping trench areas of UST systems to be closed in place or for
the resampling of tank pit and piping trench areas of previously closed UST systems that
cannot be re-excavated. Figures B and C (pages 7 and 8) illustrate locations for sample
collection as discussed in the following two (2) subsections. If analytical results indicate soil
contamination levels above those allowed in the Facility Classification Outline and the
owner/operator chooses to excavate, refer to Section 3.0 for sampling procedures. If soil
samples cannot be collected as described, see Section 3.5 for deviations from sampling
requirements.
6
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Figure B
Soil Sample Locations - Single Tank or Piping Closed in Place
©
©
©
©
©
©
Tank Pit
©
©
©
©
Pump
Island
25 tt.
Piping Trench
Boring location
-------
Figure C
Soil Sample Locations - Multiple Tanks Closed in Place
©
101
© © ©
©
©
© Boring location
8
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3.2.1 Tank Pit Area
The following procedures shall be followed to assess the tank pit area. Figure
B (page 7) illustrates boring locations if one (1) UST system is to be closed in place.
Figure C (page 8) illustrates boring locations if more than one (1) tank is to be closed
in place.
• Perform soil borings in the native soils immediately adjacent to the backfill
material at the ends and sides of each tank as shown in Figures B and C;
• Advance borings to a depth of at least 0.60 meters (two (2) feet) below the
bottom of the tank. If bedrock is encountered in any boring prior to achieving
the required depth, a hydrogeologically downgradient groundwater sample (see
Section 4.2) shall be collected in lieu of a soil sample from the boring;
• A sample shall be collected from the boring at intervals of every 0.60 meters
(two (2) feet) and evaluated using properly calibrated field instruments. Field
instrumentation results and data documenting the proper operation and quality
control procedures used during the operation of the field instrumentation shall
be available upon request by the Cabinet but is not required to be submitted
initially with the CAR;
• Select one (1) sample from each boring for laboratory analysis. This sample
shall be from the location in the boring between the top of the tank and 0.60
meters (two (2) feet) below the bottom of the tank exhibiting the highest
contaminant concentration using appropriate field methods (see paragraph
above). If no contamination is exhibited throughout the boring using
appropriate field methods, the sample from the bottom of the boring shall be
submitted for analysis; and
• Place the selected sample from each boring into a separate, appropriate
container, and have the samples analyzed at a laboratory.
3.2.2 Piping Trench Area
Each 7.60 meter (twenty-five (25) foot) section of the piping trench shall be
sampled in the following manner:
• Divide the piping trench length into 7.60 meter (twenty-five (25) foot) sections.
The area under the dispenser island is considered to be part of the piping
trench; and
• Collect one (1) composite soil sample consisting of grab samples from the
boring locations as illustrated in Figure B, for each 7.60 meter (twenty-five (25)
foot) section. Samples shall be collected as close as possible to the piping, and
borings shall extend at least 0.60 meters (two (2) feet) below the bottom of
the piping trench. In each sample collection location, sample(s) shall be
collected from areas where contamination is most likely to be present. Place
samples into appropriate containers and have them analyzed at a laboratory.
Use a separate container for each 7.60 meter (twenty-five (25) foot) section
of the piping trench. If a piping trench or a section of a piping trench is less than 7.60
meters (twenty-five (25) feet) in length, one (1) composite sample shall be collected
and analyzed for the piping trench or a section of the piping trench.
9
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3.3 Sampling of Excavated Material
The excavated material removed from the tank pit or piping trench shall be placed on
and covered with plastic. Measures shall be taken to prevent any surface runoff from entering
or washing away the excavated material (e.g. berms, straw bales, etc.). Sampling of the
excavated material shall not be requested if the material is disposed of as directed in Section
3.0. Copies of the laboratory analyses required by the permitted disposal facility shall be
submitted as an appendix or addendum to the CAR.
At least one (1) composite sample shall be collected for every 382 cubic meters (500
cubic yards) of excavated material removed from the tank pit or piping trench excavation if the
material is to be returned to the excavation, used for an unrestricted off-site purpose, or treated
on- or off-site through a registered permit-by-rule issued by DWM.
Each 382 cubic meters (500 cubic yards) of the excavated material shall be sampled
in the following manner:
• Divide each 382 cubic meters (500 cubic yards) of excavated material into at least four
(4) equal sections; and
• Collect one (1) composite soil sample consisting of a grab sample taken at least 0.30
meters (one (1) foot) into the interior of each of the four (4) sections of each pile.
Within each section the sample shall be collected from areas where contamination is
most likely to be present. Place samples into appropriate containers and have them
analyzed at a laboratory.
Additional sampling as prescribed by the Cabinet shall be performed if the excavated
material is improperly stored, if any degradation of plastic or runoff barriers occurs prior to
disposal, or if any evidence of contamination is observed (e.g. fumes, odors, sheen on water,
etc.) peripheral to the excavated material pile.
3.4 Background Sampling
If necessary to establish background levels for total lead constituents, soil samples shall
be collected at a depth of 0.90 meters (three (3) feet) or more below the ground surface from
five (5) separate locations which are upgradient and unaffected by a potential release of
substances from the UST system being permanently closed. At least five (5) samples shall be
collected and analyzed separately, one (1) from each section. Background levels shall be
established by calculating the arithmetic mean of the analytical results obtained from the
background samples. Alternative statistical methods for determining background levels may
be submitted subject to Cabinet approval.
3.5 Deviations from Sampling Requirements
If soil samples cannot be collected as described in Sections 3.1, 3.2, 3.3, or 3.4, two
(2) separate copies of an alternative sampling plan proposal shall be submitted to the UST
Branch. The alternative sampling plan shall include the following information:
• an explanation as to why the standard sampling requirements cannot be followed;
• a scaled schematic or drawing of proposed sampling points; and
• any other information supporting the proposed alternative sampling plan.
10
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Prior written approval from the UST Branch shall be obtained before the proposed
alternative sampling plan is implemented.
4.0 WATER SAMPLE COLLECTION REQUIREMENTS
If water encountered during permanent closure activities is required to be sampled, two (2)
separate copies of all sample analyses with chain-of-custody (COC) documentation shall be submitted
as appendices or addenda to the CAR form. All water samples shall be placed into appropriate
containers, preserved, and analyzed for applicable constituents as directed in Section 5.0.
4.1 Water Encountered During Permanent Closure
Sites with regulated petroleum UST systems shall collect water samples and dispose
of the water if so prescribed in the Facility Classification Outline. If disposal of water is
required, see Section 6.5.
For sites with regulated non-petroleum UST systems, collect a sample of any water
(e.g. rain water, surface runoff, groundwater, etc.) encountered in the excavated tank pit or
piping trench during and after the removal, or any water encountered in borings during closure
in place and place each sample into an appropriate container for analysis. This water shall be
disposed of properly (see Section 6.5) if proven contaminated or suspected to be
contaminated.
4.2 Hydrogeologically Downgradient Groundwater Sampling
Sites with regulated petroleum UST systems shall collect a hydrogeologically
downgradient groundwater sample if so prescribed in the Facility Classification Outline.
For sites with regulated non-petroleum UST systems, a hydrogeologically downgradient
groundwater sample shall be collected if any of the following site-specific conditions occur:
• if bedrock is encountered and a soil sample from the bottom of the tank pit is not
collected at the time of the tank or piping removal;
• if water encountered in the tank pit or piping trench during removal or in the bore holes
during closure in place is found to be contaminated; or
• if water encountered in the tank pit, piping trench, or bore holes was not sampled at
the time of permanent closure.
Downgradient groundwater sampling may be required to assess potential groundwater
contamination associated with the permanent closure of a UST system. The downgradient
groundwater samples shall be taken in the hydrogeologically downgradient area most likely to
be affected by a release from the UST system. Groundwater samples shall be obtained from
monitoring wells or UST assessment wells, and shall be collected, preserved, and analyzed in
accordance with US EPA SW-846 methods.
If monitoring wells are installed, the installation shall be conducted by a certified
monitoring well driller and must be installed in accordance with the Underground Storage Tank
System Site Investigation Outline incorporated by reference in 401 KAR 42:060. A copy of
the Kentucky Monitoring Well Record Form (DEP8043) indicating the AKGWA Well Number
shall be submitted for each monitoring well installed. For information about the Kentucky
11
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Monitoring Well Record Form (DEP8043), contact the Groundwater Branch, Division of Water,
14 Reilly Road, Frankfort, Kentucky 40601 or call (502) 564-3410.
UST assessment wells are wells that shall only be used to collect a one-time
groundwater sample during permanent closure activities, and shall be constructed by a certified
monitoring well driller. They may be constructed as an open borehole if the hole can be
adequately purged to obtain a representative groundwater sample or by using a direct-push
sampling device. A copy of the Kentucky Underground Storage Tank Assessment Well Form
(5033/07/95) shall be submitted as an appendix to the CAR Form. Requirements for submittal
of the Kentucky Monitoring Well Record Form (DEP8043) and well tagging do not apply to UST
Assessment Wells.
UST assessment wells constructed as an open borehole shall be properly abandoned
by grouting from bottom to top with neat cement, cement/bentonite, or bentonite within forty-
eight (48) hours of drilling. UST assessment wells drilled using direct-push sampling devices
shall be properly abandoned by grouting from bottom to top with neat cement,
cement/bentonite, or bentonite immediately after obtaining a groundwater sample. Monitoring
wells shall be properly abandoned within thirty (30) days of the last sampling date or the date
of determination that the well is unsuitable for use as a monitoring well. Monitoring wells shall
be properly abandoned in accordance with 401 KAR 6:310. UST assessment wells shall be
properly abandoned by being sealed with cement/bentonite or bentonite from bottom to top,
in a manner to prevent communication of surface water and groundwater through the boring
and to prevent communication between two or more water-bearing zones through the boring.
If a hydrogeologically downgradient groundwater sample is required, documentation of
the determination of the downgradient groundwater flow direction shall be submitted. The
direction of groundwater flow is typically determined by obtaining static water levels from three
(3) locations in a triangular configuration. The documentation to support the downgradient
sample location shall include a site map depicting the exact locations of static water level
measurements, the ground surface and water level elevation at each measurement location,
the direction of groundwater flow, and the hydraulic gradient. Site maps shall be to scale,
include a north arrow, and include a legend.
5.0 SAMPLE ANALYSIS REQUIREMENTS
Methods for sample collection, sample preservation, chain of custody (COC), sampling
equipment, decontamination procedures, sample containers, sample sizes, and maximum sample
holding times shall be conducted in accordance with 40 CFR 260.11, specifically, US EPA SW-846.
Two (2) separate copies of the results of all sample analyses with COC documentation shall be
submitted to the UST Branch as appendices to the CAR Form.
5.1 Required Methods for Analysis of Soil Samples
All soil samples shall be analyzed for applicable constituents as directed in Table A
(page 13), (as specified by US EPA SW-846 analytical methods) for all contents stored at any
time in the UST system(s) prior to permanent closure.
Refer to Section 1.2 for requirements associated with non-petroleum regulated UST
system(s).
For regulated petroleum UST systems, analytical methods selected for determining
compliance with the allowable levels specified in the Facility Classification Outline shall be
capable of accurately measuring the constituents at or below allowable levels. The maximum
acceptable reporting limit, specified in Table A, is not necessarily the required action
12
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Table A
Analytical Requirements for Soil Samples
Product stored
in UST System
Required
Analysis
Acceptable
Method
Maximum Acceptable
Reporting Limit
Gasoline,
Kerosene, or
Jet Fuel
BTEX
Method 5030 in
conjunction with
SW-846 8240, 8260,
8020, or 8021
B: <0.01 ppm
T: <0.7 ppm
E: <0.9 ppm
X: <5.0 ppm
Diesel or
regulated Heating Oil
PAH
Method 3540 or
3550 in conjunction
with SW-846 8100,
8270, or 8310
Ch: <15 ppm
B(a)A: <0.15 ppm
c PAH: <0.3 ppm
n PAH: <3.0 ppm
NAP: <1.0. ppm
Waste Oil
PAH
Method 3540 or 3550 in
conjunction with
SW-846 8100, 8270, or 8310
Ch: <15 ppm
B(a)A <0.15 ppm
c PAH: <0.3 ppm
n PAH: <3.0 ppm
NAP: < 1.0 ppm

Total Lead
SW-846 7420, 7421, or
6010
< 50 ppm or less than
established background
New Oil
PAH
Method 3540 or 3550 in
conjunction with SW-846 8100,
8270, or 8310
Ch: <15 ppm
B(a)A: <0.15 ppm
c PAH: <0.3 ppm
n PAH: <3.0 ppm
NAP: < 1.0 ppm
Other Petroleum or
Non-Petroleum
Contact the
UST Branch

BTEX: Benzene, Toluene, Ethylbenzene, and Xylene (total)
PAH: Polynuclear Aromatic Hydrocarbons
c PAH: Maximum Acceptable Reporting Limit Individually for Benzo(a)pyrene,
Benzo(a)anthracene, Benzo{b)fluoranthene, Benzo(k)fluoranthene, Chrysene,
Dibenzo(a,h)anthracene, and Indenod ,2,3-cd)pyrene
n PAH: Maximum Acceptable Reporting Limit Individually for Acenaphthene, Acenaphthylene,
Anthracene, Benzo(ghi)perylene, Fluoranthene, Fluorene, Phenanthrene, and Pyrene
NAP: Naphthalene
ppm: part per million (mg/l)
15
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Table C
Appropriate Containers, Sample Sizes,
Preservation Techniques and Maximum Holding Times*
Parameter
Container
Type
Sample
Size
Preservation
Method
Holding Times
(Maximum)
Volatile Organics
for Soil (BTEX)
Wide-mouth
glass w/ Teflon-
lined cap
120 ml
or 4 oz.
Cool to 4"C
14 days
Volatile Organics
for Water
-------
shall be handled and disposed of properly in accordance with 401 KAR Chapters 30-49 as applicable.
If wastes are hazardous, additional requirements pertaining to disposal, manifesting, registration, etc.
shall be addressed in accordance with 401 KAR Chapters 30-40 as applicable. For more information
contact the Hazardous Waste Branch, Division of Waste Management, 14 Reilly Road, Frankfort, KY
40601, or call (502) 564-6716.
Two (2) separate copies of all disposal documentation shall be submitted to the UST Branch
as appendices or addenda to the CAR Form.
6.1 Tank Contents
All tank contents are considered a waste unless they are transported directly to a
permitted recycling facility, or unless the contents removed are product which can be used
without any processing or treatment. If the recycling facility can only accept a portion of the
tank contents (i.e. product/water mixture) removed from the tank, all unaccepted tank contents
(i.e. accumulated water, product/water mixture, and bottom sediments) not accepted by a
permitted recycling facility shall be considered a waste and subject to hazardous waste
determination. A listing of permitted recycling facilities may be obtained by contacting the
Hazardous Waste Branch, Division of Waste Management, 14 Reilly Road, Frankfort, KY 40601
or by calling (502) 564-6716. Note that recycling does not include processing the tank
contents through an oil/water separator.
Documentation of the proper handling of the tank contents shall include a receipt from
the recycling facility that contains the following information:
• the UST facility ID number(s) designating the location of the UST
system from which tank contents were removed;
• a complete description of the tank contents submitted for recycling;
• the amount of tank contents (gallons or pounds) submitted (per tank)
for recycling; and
• the complete name and location of the receiving facility and all permit
numbers of the receiving facility in effect the date tank contents were
received.
6.2 Residual Tank Materials
All residual tank materials are considered a waste and are subject to hazardous waste
determination. The hazardous waste determination shall be conducted in accordance with 401
KAR Chapter 32:010, Section 2.
Hazardous wastes that are generated during permanent closure activities and removed
from the site shall be disposed of at a permitted hazardous waste treatment, storage, or
disposal (TSD) facility and, quantity dependent, shall be hauled by a registered hazardous
waste transporter. Any UST facility that generates hazardous waste during permanent closure
activities shall register with the Hazardous Waste Branch of the Division of Waste Management
and shall comply with the requirements of 401 KAR Chapter 32. For information about
hazardous waste pretreatment requirements and accumulation time, certified hazardous waste
transporters, permitted hazardous waste disposal facilities, and procedures for one-time
17
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generators contact the Hazardous Waste Branch, Division of Waste Management at 14 Reilly
Road, Frankfort, Kentucky 40601 or call (502) 564-6716.
If the residual tank materials are determined to be hazardous, documentation of proper
transport and disposal shall include the following information:
• documentation of the hazardous waste determination conducted in accordance
with 401 KAR 32:010, Section 2;
• a complete waste manifest (hazardous or non-hazardous as appropriate)
including all required signatures and both the TSD's and generator's
EPA ID numbers; and
• a receipt from the TSD which shall include the following information:
• the UST facility ID number designating the location of the UST
system from which residual tank materials were removed;
• a complete description of the waste and the waste
identification;
• the exact volume of the waste generated (volume determines
generator status); and
• the complete name and location of the receiving facility and all
permit numbers of the receiving facility in effect the date the
residual tank materials were received.
If the residual tank materials are determined to be non-hazardous waste, documentation
of proper disposal shall include the following information:
• documentation of the waste determination conducted in accordance with 401
KAR 32:010, Section 2, indicating the waste to be non-hazardous; and
• a complete non-hazardous waste manifest or receipt which contains the
following details:
• the UST facility ID number designating the location of the UST
system from which residual tank materials were removed;
• a complete description of the waste;
• the volume of the waste generated; and
• the complete name and location of the receiving facility and all
permit numbers of the receiving facility in effect the date
residual tank materials were received.
18
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6.3 Cleaning Liquids and Cleaning Materials
Any liquid or solid material used to clean a UST system, whether relating to removal
or closure in place, is considered a waste and subject to hazardous waste determination. Refer
to Section 6.2 for general information on waste determination, transportation, and disposal.
If the cleaning liquids or cleaning materials are determined to be hazardous,
documentation of proper transport and disposal shall include the following information:
• documentation of the hazardous waste determination conducted in accordance
with 401 KAR 32:010, Section 2;
• a complete waste manifest (hazardous or non-hazardous as appropriate)
including all required signatures and both the TSD's and generator's
EPA ID numbers; and
• a receipt from the TSD which shall include the following information:
• the UST facility ID number designating the location of the UST
system from which cleaning liquids or cleaning materials were
removed;
• a complete description of the waste and the waste
identification;
• the exact volume of the waste generated (volume determines
generator status); and
• the complete name and location of the receiving facility and all
permit numbers of the receiving facility in effect the date
cleaning liquids or cleaning materials were received.
If the cleaning liquids or cleaning materials are determined to be a non-hazardous
waste, documentation of proper disposal shall include the following information:
• documentation of the waste determination conducted in accordance with 401
KAR 32:010, Section 2 indicating the waste to be non-hazardous; and
• a complete non-hazardous waste manifest or receipt which contains the
following details:
• the UST facility ID number designating the location of the UST
system from which cleaning liquids or cleaning materials were
removed;
• a complete description of the waste;
• the volume of the waste generated; and
• the complete name and location of the receiving facility and all
permit numbers of the receiving facility in effect the date
cleaning liquids or cleaning materials were received.
19
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6.4 Tank or Piping Disposal
Documentation of the disposal of a removed tank(s) or piping shall include the following
information:
• If the tank(s) or piping is disposed of at a scrap metal company or a landfill, a receipt
from the receiving facility shall be submitted. This receipt shall be signed by the
receiving facility and shall include the receiving facility's name, address, and phone
number, as well as the name of the UST facility, the UST facility ID number, the
location address, the number of tank(s) or piping, and the size of the tank(s) (if
applicable);
• If the tank(s) or piping is not disposed of at a scrap metal company or a permitted
landfill, a bill of sale from the individual or facility receiving the tank or piping shall be
submitted. This bill of sale shall indicate that the individual or facility accepts
responsibility for the tank or piping and acknowledges that its use will be in compliance
with regulatory requirements. This document shall be signed by the individual or
facility receiving the tank or piping and shall indicate the receiving individual or facility
name, address, and telephone number, as well as the UST facility ID number of the
UST site where the tank or piping was removed and a listing of all content(s) stored at
any time in the tank(s). If an empty UST is sold and transported to an off-site facility,
the receiving facility may become a generator of hazardous waste if and when any
remaining residues are removed from the UST. A suggested model of a bill of sale is
included as Figure D on page 21.
• If the tank(s) is to be reused as an aboveground tank for storage of a flammable
substance, a permit of approval from the State Fire Marshal's (SFM) office is required.
Applications for this permit will be considered by the SFM if the tank manufacturer
provides information confirming the structural integrity of the tank(s) for use as an
aboveground storage tank. Contact the SFM at (502) 564-3626 regarding the
application for reuse of a UST as an aboveground storage tank; or
• If the tank(s) is to be reused for any other purpose contact the SFM office at (502)
564-3626.
• For tanks closed in place, indicate the type of inert solid (e.g. sand, concrete) used to
fill the tank after any emptying or cleaning.
• For piping closed in place, indicate that the piping has both ends capped after any
emptying or cleaning.
In accordance with the American Petroleum Institute (API) Recommended Practice
1604, removed tanks shall not be used for subsequent storage of food or liquids intended for
animal or human consumption.
If a UST removed from the ground is not to be cleaned at the location where the UST
was removed, the UST shall be empty as defined in 401 KAR 42:070 Section 1. Figure E
(page 22) illustrates the minimum requirements of a certification that shall be completed and
submitted to the UST Branch if a UST is removed from a site prior to cleaning. If an empty
UST is sold and transported to an off-site facility, the receiving facility may become a generator
of hazardous waste if and when any remaining residues are removed from the UST.
20
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Figure D
Removed Underground Storage Tank(s) Bill of Sale
I acknowledge purchase of the following underground storage tank(s):
Tank #
Tank Size
Date Tank
Removed
All Products Ever Stored in
Tank(s)

The above referenced tank(s) was The tank(s) will now be
removed from the following facility: located at the following site:
Name Name
Address Address
UST Facility ID# Phone#
The intended use for the tank(s) is: .
As the new tank(s) owner, I understand that I accept responsibility for the tank(s) and acknowledge
that its use will be in compliance with regulatory requirements. I also understand that in accordance
with API Recommended Practice 1604, removed underground storage tank(s) must not be used for
subsequent storage of food or liquids intended for animal or human consumption. I understand that
I may become a generator of hazardous waste if and when any remaining residues are removed from
the underground storage tank(s).
New Owner Signature Address
Printed Name
Date Signed Phone #
21
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Figure E
Certification of Empty Tank(s)
This certification, or a comparable document containing the following information, shall be completed
and submitted when a removed underground storage tank(s) is transported off site prior to being cut
up or destroyed:
Facility Name:
Facility Address:
UST Facility ID#:
Number of underground storage tank(s) removed:
I certify that the underground storage tank(s) removed from the above referenced facility on
(date, had all materials from each underground storage tank system removed using commonly
employed practices so that no more than 2.5 centimeters ( one (1) inch) of residue, or 0.3 percent by
weight of the total capacity of the UST system, remained in the system when transported offsite from
this facility on (date) and .therefore, met the definition of empty as per Kentucky
Administrative Regulation 401 KAR 42:070 Section 1.
Signature
Printed Name
Title
Date
22
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6.5 Water Encountered in Excavation
Sites with regulated petroleum UST systems shall dispose of pit water as
prescribed in the Facility Classification Outline.
Water encountered in the excavation during removal of the tank(s) or piping, or in
borings drilled during closure in place, that is proven to be contaminated or that is
suspected to be contaminated shall be disposed of properly as indicated in Section 4.1.
Disposal shall be documented in one of the following manners:
• If the treated water is to be discharged rather than taken to a registered facility, submit
a copy of the one-time Kentucky Pollutant Discharge Elimination System (KPDES) water
discharge permit obtained from the Industrial Synfuel Section of the Kentucky Division
of Water. For more information call the Division of Water at (502) 564-3410;
• If the water is recovered by a permitted facility, submit a receipt from the receiving
facility; or
• If the water from the excavated pit is to be disposed of by discharging into the sanitary
or storm sewer system, submit a copy of the letter of approval or permit (if issued by
the sewer district) from the sewer district.
Any permit, receipt, or letter documenting the disposal of contaminated water shall
include the amount of water disposed of, the UST facility ID number of the site from which the
water originated, and any analytical results required for disposal.
6.6 Excavated Material
The Facility Classification Outline provides information regarding excavated material
generated during permanent closure of petroleum UST systems for each closure classification.
Submit a single receipt indicating the total amount of excavated material or individual
receipts documenting the total amount of excavated material accepted by a disposal facility
(e.g. landfill or landfarm). See Section 3.3 (Sampling of Excavated Material) for documentation
to be submitted if the excavated material is to be returned to the excavation or used for an
unrestricted off-site purpose. To obtain a list of approved landfills and/or landfarms that accept
contaminated soil in Kentucky, contact the Solid Waste Branch, Division of Waste
Management, 14 Reilly Road, Frankfort, Kentucky 40601 or call (502) 564-6716.
Excavated material generated during the permanent closure of regulated UST systems
containing substances other than petroleum products is subject to a hazardous waste
determination.
23
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Instructions for the Kentucky
NOTICE OF INTENT TO PERMANENTLY CLOSE UNDERGROUND STORAGE TANK SYSTEM
FORM (DEP5025/07/95)
;neral instructions, the notice of intent to permanently close underground storage tank
STEM FORM IS REQUIRED WHEN UNDERGROUND STORAGE TANK SYSTEM COMPONENTS ARE TO BE
PERMANENTLY CLOSED IN KENTUCKY. THIS FORM MUST BE SUBMITTED THIRTY (30) DAYS PRIOR TO PERMANENT
CLOSURE OF AN UNDERGROUND STORAGE TANK SYSTEM TO THE REGIONAL OFFICE RESPONSIBLE FOR COUNTY
IN WHICH TANK SYSTEM IS BEING CLOSED. ALL SECTIONS MUST BE COMPLETED TO BE ACCEPTED BY THE
REGIONAL OFFICE. IF ANY SECTION IS NOT COMPLETED, THE ORIGINAL NOTICE OF INTENT TO PERMANENTLY
CLOSE UNDERGROUND STORAGE TANK SYSTEM FORM WILL BE RETURNED TO THE OWNER. Instructions are
provided only for categories on the Notice of Intent to Permanently Close Underground Storage Tank System form which are not self-
explanatory. If you have any questions about any section on the form, please call the Regional Office. The form must be typed or
printed legibly.
OWNERSHIP OF TANK SYSTEM-TH1S SECTION PERTAINS TO THE CURRENT LEGAL OWNER OF THE TANK SYSTEM
Owner Name: Enter Owner Name (corporation, individual, public agency, or other entity)
Mailing Address: Current owner mailing address including city, state and zip
Contact Person: Name of contact person for site.
Telephone Number: Area code and telephone number for owner.
LOCATION OF TANK SYSTEM
Facility I.D. Number: Enter facility identification number. NOTE: Facility must be registered prior to permanent closure.
Facility Name/Company: Enter name under which business and/or facility is currently operating.
Facility Address: Enter exact street address including street number and/or the highway number where tank system is physically located. DO NOT USE
A P.O. BOX OR ROUTE NUMBER. (Contact post office for exact address) Enter city, state, and zip where tank system is located. If
in rural location, use the city or town that is used for your tank system location mailing address.
County: Enter the name of the county where the tank system is located.
CONTACT PERSON PERTAINING TO PERMANENT CLOSURE
Company/Person Name: List name of company/individual in charge of the permanent closure activities.
Telephone Number: Area code and telephone number for company/individual in charge of the permanent closure activities.
Company/Person Name: List name of the company or individual who perform the actual tank system permanent closure.
CLOSURE INFORMATION
1. Type of Closure: Check appropriate box indicating the type of permanent closure.
Removal from Ground: Tank will be emptied, purged, cleaned and removed from the ground.
Closure in Place: Tank will be emptied, purged, cleaned and filled with an inert material.
Pining Only: Pipes will be removed/closed in place without involvement of the tanks.
Change in Service Change in service from a tank system storing a regulated substance to a tank system storing a non-regulated
substance.
2 THROUGH 6: Enter appropriate information
CERTIFICATION-REAP CAREFULLY. SIGN. AND DATE THIS FORM
Check appropriate box if Owner Signature; Operator Signature; or Consultant/Contractor signature. This form must have an original signature and date by the owner,
operator, or consultant/contractor of your facility. THIS NOTICE OF INTENT TO PERMANENTLY CLOSE UNDERGROUND STORAGE TANK SYSTEM
MUST INCLUDE THIS CERTIFICATION TO BE COMPLETED. COPIED OR STAMPED SIGNATURES ARE NOT ACCEPTABLE.
DESCRIPTION OF UNDERGROUND STORAGE TANK SYSTEM
1. Status of Acuve Tank MARK ONE BOX
Active: Tank is currently in use.
Temporarily out of use: If temporarily out of use, complete additional information in section.
Change in Service: Change in service for tank use.
2. Date Installed: Indicate month/day/year of installation,
t rapacity: List the total gallon capacity of tank(s)
HROUGH 8: Enter and X in the appropriate box(es) for each tank.
i>u TE: ANY QUESTIONS CONCERNING INSTALLATION PLANS OR CERTIFIED CONTRACTORS, MUST BE DIRECTED TO THE STATE FIRE
MARSHAL'S OFFICE, HAZARDOUS MATERIALS SECTION AT 502-564-3626.
ANY QUESTIONS CONCERNING APPLICATIONS FOR A CERTIFICATE OF ELIGIBILITY WITH THE PETROLEUM STORAGE TANK
ENVIRONMENTAL ASSURANCE FUND COMMISSION, CALL 1-800-928-7782 OR 502-564-5981.
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DEP5025/07/95
II NOTICE OF INTENT TO PERMANENTLY CLOSE
UNDERGROUND STORAGE TANK SYSTEM
FOR
TANK
SYSTEM
INKY
Return Completed Form To:
Field Office responsible for County
in which tank system is being closed.
For more information call: Regional
Office
STATE USE ONLY
COMPLETE AND RETURN THIRTY (30) DAYS PRIOR TO PERMANENT CLOSURE OF TANK SYSTEM.
OWNERSHIP OF TANK SYSTEM
LOCATION OF TANK SYSTEM

OWNER NAME
FACILITY ID NUMBER (UNLESS NEW LOCATION)
MAILING ADDRESS
FACILITY NAME OR COMPANY SITE IDENTIFIER
CITY STATE ZIP CODE
STREET, COUNTY ROAD, HIGHWAY, OR STATE ROAD
CONTACT PERSON
CITY STATE ZIP CODE
AREA CODE/TELEPHONE NUMBER
COUNTY
CONTACT INFORMATION PERTAINING TO PERMANENT CLOSURE
1. Name of companv/person in charge of permanent closure activities:
2. Area code and telephone number for conmanv/person in charee of Dermanent closure activities:
3. Name of companv/person performing the actual tank system permanent closure:
1. TYPE OF CLOSURE:(MARK ONE) ~ Removal from Ground ~ Closure in Place ~ Piping Only ~ Change in Service
2. Number of Tanks to be permanently closed at above location:
3. Indicate the cleaning method for each tank:
4. If the tank is to be closed in place, tvpe of fill material to be used:
5. Name of laboratory where samples will be sent:
6. Closure date scheduled:
7. If piping onlyT indicate substance contained in svstem:
CERTIFICATION
I certify under penalty of law that I have personally examined and am familiar with the information submitted in this and all attached documents, and that based
on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and
complete. KRS 224.99-010(4) provides for penalties for submitting false information, including the possibility of fine and imprisonment
SIGNATURE NAME & TITLE (TYPE OR PRINT) DATE SIGNED
CHECK APPROPRIATE BOX: ~ OWNER ~ OPERATOR ~ CONSULTANT/CONTRACTOR
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DESCRIPTION OF UNDERGROUND STORAGE TANK SYSTEM
DEP5025/07/05
(Complete for each tank system at this location)

Tank I.D. No. (*g. 123) or Arbitrarily Assigned Sequential Number
TANK NO.
TANK NO.
TANK NO.
TANK NO.
TANK NO.
1. Status of Tank (please mark appropriate box)

Cunently in Use (TAC)
~
~
~
~
~
Temporarily Out of Use (TTC)
~
~
~
~
~
Change in Service (TCS)
~
~
~
~
~
2. Estimated Date Installed (Month and Year)

3. Estimated Total Capacity (Gallons)

4. Material of Construction (please mark appropriate box)

Steel (SST)
~
~
~
~
~
Double Wall Steel (DST)
~
~
~
~
~
Fiberglass Reinforced Plastic (FRP)
~
~
~
~
~
Double Wall Fiberglass (DWF)
~
~
~
~
~
Steel Interior lined with Fiberglass (SIF)
~
~
~
~
~
Unknown (UNK)
~
~
~
~
~
Other, please specify (OTH)

5. Internal Protection for Tank (please mark appropriate box)

Fiberglass/Doubls Wall (FDP)
~
~
~
~
~
None (NON)
~
~
~
~
~
Interior Lining (e.g. epoxy lining) (ILP)
~
~
~
~
~
Unknown (UNK)
~
~
~
~
~
Other, please specify (OTH)

6. External Protection (please mark appropriate box)

Cathodic Protection (CCP)
~
~
~
~
~
Dielectric Coated (DIE)
~
~
~
~
~I
Double Wall Fiberglass (DWF)
~
~
~
~
~
Fiberglass Reinforced Plastic (FRP)
~
~
~
~
~
Field-Insttalled Cathodic Protection (FCP)
~
~
~
~
~
Impressed Current Cathodic Protection (ICP)
~
~
~
~
~
None (NON)
~
~
~
~
~
Unknown (UNK)
~
~
~
~
~
Other Protection (OTH)

7. Materia] of Piping Construction (please mark appropriate box)

8. Substance Currently or Last Stored In Greatest Quantity

by Volume (please mark appropriate box)

Gasoline (GAS)
~
~
~
~
~
Diesel (DSL)
~
~
~
~
~
Kerosene (KER)
~
~
~
~
~
Used Oil (UOL)
~
~
~
~
~
New Oil (NOL)
~
~
~
~
~
Fuel Oil (FOL)
~
~
~
~
r
Aviation Fuel (JET)
~
~
~
~
L |
CERCLA Hazardous Substance (HAZ)
~
~
~
~
~
Unknown Substance (UNK)
~
~
~
~
~
Empty (EMP)
~
~
~
~
~
Other Substance, please specify (OTH)

-------
FOR
TANKS
INKY
DEP4058/07/95
CLOSURE ASSESSMENT REPORT
Return Completed Form To:
Division of Waste Management
Underground Storage Tank Branch
14 Reilly Road
Frankfort, KY 40601-1190
502-564-6716 OR 800-928-4273
Complete and return this form with all requested information within ninety (90) days of underground storage tank system closure.
OWNERSHIP OF TANK SYSTEM
LOCATION OJEiTANK SYSTEM

OWNER NAME
UST FACILITY ID# (if id# is unknown, contact the above agency)
MAILING ADDRESS
FACILITY NAME OR COMPANY SITE IDENTIFIER
CITY STATE ZIP CODE
STREET, COUNTY ROAD, HIGHWAY, OR STATE ROAD
AREA CODE/TELEPHONE NUMBER
CITY STATE ZIP CODE
COUNTY
CONTACT PERSON
ME3
TANK SYSTEM INFORMATION

/umber of tanks/piping systems closed ~ Removed from Ground ~ Closed in Place Date: (m/d/vt / /
Contractor who Permanently Closed Tank Svstem: Certified Remover #
CLOSURE INFORMATION REQUESTED : EXCAVATION CONDITION

PIT
NUMBER
TANK
NUMBER
SEE IN
GALLONS
DATE
INSTALLED
UST ALL CONTENTS EVER STORED IN TANK AND
PIPING SYSTEM
PREVIOUSLY
REGISTERED TANK
FREE PRODUCT
NOTABLE ODOR
VISIBLE SOIL
CONTAMINATION
YES NO
YES NO
YES NO
YES NO

CERTIFICATION
I certify under penalty of law that I have personally examined and am familiar with the information submitted in this and all
attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and complete. KRS 224.99-010(4) provides for penalties for submitting
false information, including the possibility of fine and imprisonment.
tGNATURE OF REGISTERED PROFESSIONAL ENGINEER OR REGISTERED PROFESSIONAL GEOLOGIST:.
NAME AND TITLE:
REGISTRATION # AND DATE:.
DATE SIGNED:.
-------
CLOSURE ASSESSMENT REPORT, PAGE TWO
DEP4058/07/95
UST FACILITY ID#
FACILITY NAME:
TANK#.
PIT#.
Tank contents present at time of closure activities: YES_
NO
Volume in gallons:.
Method of Tank Contents Removal:.
Disposal location:
Receipt: YES_
NO
Residual Tank Materials: YES_
Analytical Method(s):
Disposal Location:
EPA ID#
NO
Analyzed for TCLP: YES_
NO
COC
Declared Hazardous: YES_
Volume in gallons:
Receipt or Manifest signed by a representative of receiving facility: YES_
NO_
NO
Cleaning liquids/materials: YES_
Analytical Method(s):
Disposal Location:
NO
Analyzed for TCLP: YES_
NO
COC
Declared Hazardous: YES_
Volume in gallons:
EPA ID#_
NO
Residual tank material combined with cleaning liquid/materials for disposal / here YES NO Manifest signed by a representative of receiving facility: YES NO
Disposal location for tank and/or piping:
Receipt YES_ NO_ Describe condition of tank and/or piping:.
. For closed in place, inert material used to fill tank and/or piping,.
TANK# PIT# Tank contents present at time of closure activities: YES NO Volume in gallons:.
Method of Tank Contents Removal:
Disposal location: Receipt: YES NO_
Residual Tank Materials: YES NO Analyzed for TCLP: YES NO Declared Hazardous: YES NO_
Analytical MethodfsV COC Volume in gallons:
Disposal Location:
EPA ID# Receipt or Manifest signed by a representative of receiving facility: YES NO_
Cleaning liquids/materials: YES NO Analyzed for TCLP: YES NO Declared Hazardous: YES NO_
Analytical Method(s): COC Volume in gallons:
Disposal Location: EPA ID#
Residual tank material combined with cleaning liquid/materials for disposal / here YES NO Manefcst signed by a representative of receiving facility: YES NO
Disposal location for tank and/or piping: For closed in place, inert material used to fill tank and/or pipings
Receipt: YES NO Describe condition of tank and/or piping:
TANK# PIT# Tank contents present at time of closure activities: YES NO Volume in gallons:.
Method of Tank Contents Removal:
Disposal location: Receipt: YES NO_
Residual Tank Materials: YES NO Analyzed for TCLP: YES NO Declared Hazardous: YES NO_
Analytical Method(s): COC Volume in gallons:
Disposal Location:
EPA ID# Receipt or Manifest signed by a representative of receiving facility: YES NO
Cleaning liquids/materials: YES NO Analyzed for TCLP: YES NO Declared Hazardous: YES NO_
Analytical Method(s): COC Volume in gallons:
Disposal Location: EPA ID#
Residual tank material combined with cleaning liquid/materials for disposal / here YES NO Manifest signed by a representative of receiving facility: YES NO
Disposal location for tank and/or piping: For closed in place, inert material used to fill tank and/or pining
Receipt: YES_ NO_ Describe condition of tank and/or piping:
-------

CLOSURE ASSESSMENt'iS^ORT, PAGE THREE

Dlfi^b58/07/95
I1ST.-F AGILITY in#

PIT#

Disposal location for soils: Amount of soils disposed (yds3 or tons):
Receipt/Manifest: YES NO List all regulated substances ever stored in tanks or piping associated with this pit:
IN COLUMNS, PROVIDE ACTUAL ANALYSIS RESULT FOR WALLS, BOTTOM, PIPING TRENCH, BACKGROUND AND EXCAVATED MATERIAL SAMPLES FOR THE MOST
RECENT SAMPLING DATE:
COC:
X f woxa
. sampling
LOCATION
B
T
t
X
C-PAT1
N-PAH
LEAD
NAPTH
date'
COLLECTED
RECEIVED
DATE
ANALYZED
. DATE :
EXTRACTED

North

Soutb

Eut

Wot

Bottom

PiptaiTrtocfa

Excavated Materia!

Background I.

-------

CLOSURE ASSESSMENT REPORT, PAGE FOUR
DEP4058/07/9S
11ST FACILITY ID#
FACILITY NAME:
PIT #
Analytical Method(s) for Soil Analysis: Class.
ALLOWABLE SOIL
LEVELS

. T
E
X
C-PAH
NPAH
LEAD
NAfTH

If Class IV: Depth to groundwater: Distance to receptors:.
Groundwater in excavtion: YES NO Other water in excavation: YES NO Description:.
Downgradient groundwater sampling required:: YES NO
COMPLETE THE FOLLOWING INFORMATION FOR ALL GROUNDWATER OR PIT WATER ANALYZED.
Table or Matrix
Soil Type:.
COC:
• fwoxn
iXAnACHUy.-
¦ SAMPLING
LOCATION

T
iillilltl
X
mimmM
N-PAH .
LEAD
NAPT1I
.! :bATX:: i
COLLECTED
DATE
RECEIVED
DATE
ANALYZED
DATE
EXTRACTED

DOW7CGBADtE!fT
CKOWDWATf

pttwatu

Name of Certified Monitor Well Driller: Certified Driller #
Analytical Method(s) for Water Analysis:
ALLOWABIX GROUNDWATER
LEVELS

X
C-PAH : -
N-PAII

NAPTH

Disposal location for water:.
If not disposed, explain:
Receipt: YES NO.
Permit: YES NO
-------
DEP5033/07/95
KENTUCKY UNDERGROUND STORAGE TANK ASSESSMENT HELL FORM
1. Owner Information
Well Owner's Name:
6. Facility Information
Facility Name:
Mailing Address:
Mailing Address:
Citv:
Citv:
Phone:
Phone:

2. General Well Construction
Start Dale:
Finish Date:
Drill inff Method:
Surface Elevation:
Total Dcoth of Well:
Deoth to Bedrock:
Death to Static Water Level:
7. Well Construction Sketch
(Attach additional sheet if needed)
3. Well Construction Information
Feet Below Surface Hole Casing, Screeen or Coupling
From To Diameter Diameter/Type
4. Lithologic Log
Feet Below Surface
From To Description
S. Driller Information
Drilling Company:
Company Address:
Citv. State. Zio:
Driller's Signature:
Dale:
Driller's Certification Number:
8. Site Sketch Map
-------
Effective Date - November 15,1995
401 KAR 42:071. Voluntary Closure for Facilities That Permanently Closed a UST System
or Had a Confirmed Release Prior to April 18, 1994.
RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, and 224.60; 40 CFR
Part 280 Subpart G and Part 281; and 42 USC 6991c
STATUTORY AUTHORITY: KRS 224.10-100, 224.60-105, and 224.60-137; 40
CFR Part 280 Subpart G and 40 CFR Part 281; and 42 USC 6991c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs that provide for the
prevention, abatement, and control of contaminants that may threaten the environment. KRS
224.60-105(2) requires the Cabinet to regulate underground storage tank (UST) systems by
requiring notification, minimum construction and performance standards, leak detection, record
keeping, release reporting, corrective action, closure, financial responsibility, and other standards
to protect public health and the environment. KRS 224.60-105(3) requires the Cabinet to establish
a regulatory program that implements federal requirements for UST systems. This chapter
identifies requirements for UST systems. This administrative regulation establishes the
requirements for voluntary closure of facilities that permanently closed a UST system or had a
confirmed release without permanent closure prior to April 18, 1994.
Section 1. Applicability.
(1) This administrative regulation shall apply to any owner or operator of a facility that
permanently closed a UST system or that had a release confirmed prior to April 18, 1994 without
permanent closure, and who voluntarily submits a letter to the Cabinet requesting to have the UST
system reviewed for closure or confirmed release determination in accordance with this
administrative regulation.
(2) The voluntary letter referenced in subsection (1) of this section shall contain the
UST identification number for the facility; the identification number of the UST system for which
the request is being made; the name, address, and phone number of the facility or company where
the UST system is located; the name, address, and phone number of the UST system owner; and
an explicit statement of the action being requested. The letter shall be signed by the owner or
operator.
(3) An owner or operator who submits a letter pursuant to subsections (1) and (2) of
this section shall perform a voluntary closure in accordance with the document incorporated by
reference in Section 2 of this administrative regulation.
Section 2. Incorporation by Reference.
(1) The following document is hereby incorporated by reference: "Pre April 18, 1994
Underground Storage Tank (UST) System Voluntary Closure Outline" (October 1995).
(2) The document referenced in subsection (1) of this section is available for inspection
401 KAR 42:071 - 1
-------
or copying, subject to copyright law, at the Underground Storage Tank Branch of the Division
of Waste Management, 14 Reilly Road, Frankfort, Kentucky 40601, (502) 564-6716, from 8:00
a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays.
Section 3. Extensions. The owner or operator of a UST system may request
extension of a time frame for any report required by this administrative regulation. The extension
request shall be submitted in writing and received by the Underground Storage Tank Branch of
the Division of Waste Management prior to the deadline. The Cabinet may grant extensions, if
warranted.
401 KAR 42:071
-2
-------
401 KAR 42:071
PRE APRIL 18,1994
UNDERGROUND STORAGE TANK (UST) SYSTEM
VOLUNTARY CLOSURE OUTLINE

NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
DIVISION OF WASTE MANAGEMENT
UNDERGROUND STORAGE TANK BRANCM
14 REILLY ROAD
FRANKFORT, KENTUCKY 40601
(502) 564-6716
(800) 928-4273
October 1995
The Natural Resources and Environmental Protection Cabinet does not discriminate on the basis of
race, color, national origin, sex, age, religion, or disability. Upon request, the Cabinet provides
reasonable accommodations including auxiliary aids and services necessary to afford an individual
with a disability an equal opportunity to participate in all services, programs, and activities.
-------
PRE APRIL 18,1994
UNDERGROUND STORAGE TANK (UST) SYSTEM
VOLUNTARY CLOSURE OUTLINE
Natural Resources And Environmental Protection Cabinet
Division of Waste Management
Underground Storage Tank Branch
14 Reilly Road, Frankfort, Kentucky 40601
(502) 564-6716
(800) 928-4273
INTRODUCTION
In accordance with Kentucky Administrative Regulation 401 KAR 42:071, this document establishes
voluntary closure standards for owners and operators of underground storage tank (UST) systems that
permanently closed, or that had a confirmed release without permanent closure, prior to April 18,1994. This
outline provides the minimum requirements for documentation and assessment of the site in accordance with
401 KAR 42:071. This outline in no way eliminates the owner or operator's option of performing permanent
closure or receiving a closure letter by following the outlines in place at the time of permanent closure.
Facilities with additional UST systems permanently closed after April 18,1994 or that had a confirmed
release after April 18, 1994, shall comply with all requirements of 401 KAR 42:070 and 42:080.
For facilities that had a confirmed release or that performed permanent closure of UST system(s) prior
to August 1,1991, refer to sections 1.0 and 2.0. For facilities that had a confirmed release or that performed
permanent closure of UST system(s) between August 1,1991, and April 18,1994, refer to sections 1.0 and
3.0.
For definition of terms used within this outline, refer to 401 KAR 42:005.
Closure of UST facilities in accordance with this outline shall not constitute designation as a residual
landfill.
SECTION 1.0 SITE REQUIREMENTS
The following criteria shall be met for all UST facilities requesting no further action in accordance with
401 KAR 42:071.
1.1 All facilities shall have performed permanent closure of UST system(s) or had a confirmed
release without permanent closure of UST system(s) prior to April 18,1994.
1.2 The UST facility shall be registered with the UST Branch. If the UST facility is not registered,
the owner or operator shall register the UST facility by submitting a Notification for
Underground Storage Tank(s) Form (DEP5024) in accordance with 401 KAR 42:020 and
42:200.
1
-------
1.3 The owner or operator shall submit a letter to the Cabinet indicating their desire to have the
facility reviewed in accordance with the requirements specified in 401 KAR 42:071. The letter
shall contain the UST facility identification number for the site, the specific UST system(s) to
which this request applies, and the name, address, and phone number for the owner or
operator. The letter shall be signed by the owner or operator. This letter shall also include
basic information about the site (for example, site name, site address, site county, etc.).
SECTION 2.0 CLOSURE REQUIREMENTS FOR UST FACILITIES WHICH PERMANENTLY CLOSED
USTS OR HAD A CONFIRMED RELEASE WITHOUT UST PERMANENT CLOSURE
PRIOR TO AUGUST 1,1991
The following minimum documentation and assessment is required in order to determine if no further
action shall be necessary for UST systems that permanently closed or had a confirmed release prior to
August 1,1991.
2.1 All soil and water sampling shall be performed using SW-846 test methods as indicated in
Table A and Table B.
2.2 The tank pit walls shall be sampled in the following manner
Tank Removal:
• All tank pit walls shall be sampled and analyzed. Analysis of at least one (1)
composite laboratory sample that represents all of the tank pit walls shall be
submitted to the UST Branch.
Tank Closure in Place:
• One (1) representative soil sample shall be collected and analyzed from the area
that corresponds to each wall of the tank pit Collection of the soil sample shall be
achieved by borings, trenches, or other appropriate methods. There shall be a
minimum of one (1) sample collected and analyzed from each area of the tank pit
wall location. Analysis of all samples collected shall be submitted to the UST
Branch.
2.3 The tank pit bottom shall be sampled in the following manner
Tank Removal:
• At least one (1) representative laboratory sample from the bottom of the tank pit area
shall be collected and analyzed. Analysis of all samples collected shall be submitted
to the UST Branch.
Tank Closure in Place:
• Due to the inability to assess below the tank(s), the tank pit bottom is not required
to be sampled. The sampling requirements from the area that corresponds to each
wall of the tank pit for closure in place will be sufficient for the pit area sampling.
2
-------
2.4 If a background sample is necessary, a minimum of one (1) representative sample shall be
collected from an area upgradient and unaffected by a potential release. The sample shall
be collected at a minimum depth of three (3) feet below the ground surface. Analysis of all
background samples collected shall be submitted to the UST Branch.
2.5 Additional sampling and analysis may be required, as directed by the Cabinet, for facilities
that initiated site investigation activities in lieu of sampling the excavation zone at the time of
permanent closure.
2.6 A Removal Assessment Report (DEP4058/08/89) or a Closure Assessment Report Form
(DEP4058/11/90) shall be completed and submitted. If one of the above mentioned forms
has not been submitted, two (2) copies of a Closure Assessment Report Form (DEP 4058)
shall be completed, including all available information, and submitted to the UST Branch.
The forms may be completed and signed by the owner, operator, contractor, or consultant.
2.7 If the minimum sampling requirements are not available or have not been achieved, re-
sampling of the former tank pit area will be allowed by following the above listed requirements
in Section 2.0.
2.8 If the minimum sampling requirements, listed above, cannot be followed, a letter shall be
submitted to the UST Branch explaining why the sampling requirements cannot be followed.
The letter shall also include an alternative sampling plan proposal that will properly assess
the UST system.
2.9 If the analyzed levels are greater than those listed in Table A or Table B, the owner or
operator shall have the following options:
(a) Continue to excavate soil contamination or perform a site investigation and
corrective action until the allowable cleanup levels specified are met. The outlines
that were in place at the time of permanent closure or the confirmed release shall
continue to be followed; or
(b) Classify the UST facility in accordance with 401 KAR 42:080 in order to determine
site specific cleanup levels and either continue to excavate soil contamination or
perform a site investigation and corrective action in accordance with 401 KAR
42:060 until the allowable levels specified in 401 KAR 42:080 are met
3
-------
TABLE A
Analytical Requirements for Soil Samples
For Sites Permanently Closed or a Confirmed Release Without Permanent Closure
Prior to August 1,1991
Product StoFed in Tank
Analysis
Acceptable

Allowable

Required
Method
Cleanup Levels
Gasoline,

B:
<1.00 ppm
Kerosene, or
BTX
SW-846
T:
<1.00 ppm
Jet Fuel

X:
<7.000 ppm
Diesel or
Chrysene

Chrysene
<15.0 ppm
Regulated Heating Oil
c PAH
SW-846
c PAH:
<1.0 ppm

n PAH

n PAH:
<3.0 ppm

NAP

NAP:
<1.0 ppm

Oil and
SW-846
<10.0 ppm or less than

Grease

Established Background
Waste Oil

<50.0 ppm or less than

Total Lead
SW-846
Established Background

Chrysene

Chrysene
<15.0 ppm

c PAH
SW-846
c PAH:
<1.0 ppm
Re-Sample for Waste Oil
n PAH

n PAH:
<3.0 ppm
or New Oil
NAP

NAP:
<1.0 ppm

SW-846

Total Lead

<50.0 ppm or less than

Established Background
Other Petroleum or
Contact the

Non-Petroleum
UST Branch

BTX: Benzene, Toluene, and Xylene
cPAH: Allowable Cleanup Level Individually for Benzo(a)Anthracene, Benzo(a)pyrene, Benzo(b)f)uoranthene,
Benzo(k)fluoranthene, Dibenzo(a,h)anthracene, and lndeno(1,2,3-cd)pyrene
n PAH: Allowable Cleanup Level Individually for Acenaphthene, Acenaphthylene, Anthracene, Benzo(ghi)perylene,
Fluoranttiene, Fluorene, Phenanthrene, and Pyrene
NAP: Naphthalene
ppm: part per million (mg/kg)
4
-------
TABLE B
Analytical Requirements for Water Samples
For Sites Permanently Closed or a Confirmed Release Without Permanent Closure
Prior to August 1,1991
Product Stored in Tank
Analysis
. Required
Acceptable
Method
Allowable
Cleanup Levels
Gasoline,
Kerosene, or
Jet Fuel
BTX
SW-846
B: <0.005 ppm
T: <1.000 ppm
X: <10.00 ppm
Diesel or
Regulated Heating Oil
C PAH
n PAH
NAP
SW-846
c PAH: <0.005 ppm
n PAH: <3.0 ppm
NAP: <0.3 ppm
Waste Oil
Oil and
Grease
Total Lead
SW-846
SW-846
<5.0 ppm or less than
Established Background
<0.05 ppm or less than
Established Background
Re-Sample for Waste Oil
or New Oil
c PAH
n PAH
NAP
Total Lead
SW-846
SW-846
c PAH: <0.005 ppm
n PAH: <3.0 ppm
NAP: <0.3 ppm
<0.05 ppm or less than
Established Background
Other Petroleum or
Non-Petroleum
Contact the
UST Branch

BTX: Benzene, Toluene, and Xylene
cPAH: Allowable Cleanup Level Individually for Benzo(a)Anthracene, Benzo(a)pyrene, Benzo(b)fluoranthene,
Benzo(k)fluoranthene, Chrysene, Dibenzo(a,h)anthracene, and lndeno(1,2,3-cd)pyrene
n PAH: Allowable Cleanup Level Individually for Acenaphthene, Acenaphthylene, Anthracene, Benzo(ghi)perylene,
Fluoranthene, Fluorene, Phenanthrene, and Pyrene
NAP: Naphthalene
ppm: part per million (mg/kg)
5
-------
SECTION 3.0 CLOSURE REQUIREMENTS FOR UST FACILITIES WHICH PERMANENTLY CLOSED
OR HAD A CONFIRMED RELEASE WITHOUT PERMANENT CLOSURE OF A UST
SYSTEM BETWEEN AUGUST 1,1991 AND APRIL 18,1994
The following minimum documentation and assessment procedures shall be required in order to
determine if no further action shall be necessary for UST systems which permanently closed or had a
confirmed release between August 1,1991 and April 18,1994.
3.1 All soil and water sampling and analysis shall be performed using the appropriate SW-846
test methods specified in Table C and Table D.
3.2 Each tank pit wall shall be sampled in the following manner
Tank Removal:
• Grid each tank pit wall into four (4) equal sections.
• Collect one (1) representative composite soil sample consisting of a grab sample
from each of the grid sections.
• At least one (1) representative composite soil sample shall be collected and
analyzed from each wall in the tank pit area.
Tank Closure in Place:
• Representative soil samples from soil borings shall be collected and analyzed from
the area that corresponds to each wall of the tank pit Samples shall be collected as
close as possible to the UST.
• There shall be at least one (1) representative sample collected from the area that
corresponds to each wall of the tank pit, with a minimum of four (4) samples
collected and analyzed from the areas that correspond to the tank pit walls. Each
sample shall be a composite sample that is representative of the total depth of the
borings.
• Borings shall be advanced to a minimum depth of two (2) to three (3) feet below the
bottom of the tank(s).
3.3 The tank pit bottom shall be sampled in the following manner
Tank Removal:
• Grid the tank pit bottom into four (4) equal sections.
• Collect one (1) representative composite soil sample consisting of a grab sample
from each of the grid sections.
• At least one (1) representative composite soil sample shall be collected and
analyzed from the bottom in the tank pit area.
6
-------
Tank Closure in Place:
• Due to the inability to assess below the tank(s), the tank pit bottom is not required
to be sampled. The sampling requirements from the area that corresponds to each
wall of the tank pit for closure in place will be sufficient for the pit area sampling.
3.4 The piping trench shall be sampled in the following manner
Piping Removal:
• The piping trench shall be divided into four (4) equal sections.
• One (1) representative composite soil sample consisting of a grab sample from each
of the sections shall be collected.
• At least one (1) representative composite soil sample shall be collected and
analyzed from the piping trench area. If the piping trench is over one-hundred (100)
feet long, then additional piping trench sampling shall be performed. For each one-
hundred (100) foot section of piping trench, at least one (1) representative composite
sample shall be collected.
Piping Closure in Place:
• The piping trench shall be divided into four (4) equal sections.
• One (1) representative composite soil sample consisting of a grab sample from each
of the sections shall be collected. Samples shall be collected as close as possible
to the piping. Collection of soil samples shall be achieved by borings, trenches, or
other appropriate methods. For each one-hundred (100) foot section of piping
trench, at least one (1) composite sample shall be collected.
3.5 The excavated material shall be sampled in the following manner
• Grid each excavated material pile into four (4) equal sections.
• Collect one (1) representative composite soil sample consisting of a grab sample
from each of the grid sections.
3.6 If a background sample is necessary, a minimum of five (5) representative samples shall be
collected and composited from an area upgradient and unaffected by a potential release.
The sample shall be collected at a minimum depth of three (3) feet below the ground surface.
A minimum of one (1) composite sample shall be analyzed.
3.7 If water is encountered during permanent closure activities, a representative sample of the
water shall be collected and analyzed in accordance with Table D.
3.8 A groundwater sample shall be collected from the hydrogeologically downgradient area most
likely to be affected by a release from the UST system if the water indicates levels above
those listed for groundwater in Table D.
7
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3.9 A groundwater sample shall be collected from the hydrogeologically downgradient area most
likely to be affected by a release from the UST system if water was encountered during
permanent closure activities but not sampled and analyzed.
3.10 A groundwater sample shall be collected from the hydrogeologically downgradient area most
likely to be affected by a release from the UST system if a clean tank pit bottom soil sample
is not possible due to the presence of bedrock. If a tank(s) is being closed in place, a
groundwater sample shall be collected from the hydrogeologically downgradient area most
likely to be affected by a release from the UST system if bedrock is encountered in soil
borings prior to achieving the required depth of two (2) to three (3) feet below the bottom of
the tank.
3.11 Additional sampling and analysis may be required, as directed by the Cabinet, for facilities
that initiated site investigation activities in lieu of sampling the excavation at the time of
permanent closure.
3.12 A site sketch, indicating the tank locations, piping trench locations, property boundaries, all
sampling locations, and any other pertinent site features shall be submitted to the UST
Branch.
3.13 Laboratory analysis reports for all samples collected and analyzed shall be submitted to the
UST Branch.
3.14 Chain-of-Custody sheet(s) or a laboratory log shall be submitted to the UST Branch for all
samples collected and analyzed.
3.15 A Closure Assessment Report Form (DEP4058) shall be completed and submitted. If this
form has not been submitted to the UST Branch, one shall be completed with all available
information and an original and one (1) copy shall be submitted to the UST Branch. The form
shall be signed by the owner, operator, contractor, or consultant
3.16 If the minimum sampling requirements are not available or have not been achieved; re-
sampling of the tank pit and piping trench areas will be allowed by complying with the above
listed requirements in Section 3.0.
3.17 If the above listed minimum sampling requirements cannot be followed, a letter shall be
submitted to the UST Branch explaining why the sampling requirements cannot be followed.
The letter shall also include an alternative sampling plan proposal that will properly assess
the UST system.
3.18 If the analyzed levels are greater than those listed in Table C or Table 0, the owner or
operator shall have the following options:
(a) Continue to excavate soil contamination or perform a site investigation and
corrective action until the allowable cleanup levels specified are met. The outlines
that were in place at the time of permanent closure or the confirmed release shall
continue to be followed; or
(b) Classify the UST facility in accordance with 401 KAR 42:080 in order to determine
site specific cleanup levels and either continue to excavate soil contamination or
perform a site investigation and corrective action in accordance with 401 KAR
42:060 until the allowable levels specified in 401 KAR 42:080 are met.
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TABLE C
Analytical Requirements for Soil Samples
For Sites Permanently Closed or a Confirmed Release Without Permanent Closure
Between August 1,1991, and April 18,1994
Product
stored in tank
Analysis
Acceptable Method
Allowable
Cleanup Levels .
Gasoline,
Kerosene, or
Jet Fuel
BTEX
Method 5030 in
conjunction with
SW-846 8240, 8260,
8020, or 8021
B: <1.00 ppm
T: <1.00 ppm
E: <1.00 ppm
X: <7.00 ppm
Diesel or
regulated Heating Oil
Chrysene
c PAH
n PAH
NAP
Method 3540 or
3550 in conjunction
with SW-846 8100,
8270, or 8310
Chrysene <15.0 ppm
cPAH <1.0 ppm
n PAH <3.0 ppm
NAP <1.0 ppm
Waste Oil
Oil & Grease
Method 3540 or 3550 in
conjunction with
SW-846 9071
<10.0 ppm or less than
Established Background

Total Lead
SW-846 7420, 7421, or
6010
<50.0 ppm or less than
Established Background
New Oil
Oil & Grease
Method 3540 or 3550 in
conjunction with SW-846 9071
<10.0 ppm or less than
Established Background
Re-Sample for Waste Oil
or New Oil
Chrysene
c PAH
n PAH
NAP
Method 3540 or
3550 in conjunction
with SW-846 8100,
8270, or 8310
Chrysene <15.0 ppm
c PAH: <1.0 ppm
n PAH <3.0 ppm
NAP <1.0 ppm

Total Lead
SW-846 7420, 7421, or
6010
<50.0 ppm or less than
Established Background
Other Petroleum or
Non-Petroleum
Contact the
UST Branch

Total Lead
SW-846 7420, 7421, or 6010
<0.05 ppm or less than
Established Background
New Oil
Oil & Grease
Method 3510 or 3520 in
conjunction with SW-846 9070
<5.0 ppm or less than
Established Background
Re-Sample for Waste Oil
or New Oil
c PAH
n PAH
NAP
Method 3510 or
3520 in conjunction
with SW-846 8100,
8270, or 8310
c PAH: <0.005 ppm
n PAH: <3.0 ppm
NAP: <0.3 ppm

Total Lead
SW-846 7420, 7421, or 6010
<0.05 ppm or less than
Established Background
Other Petroleum or
Non-Petroleum
Contact the
UST Branch

BTEX: Benzene, Toluene, Ethylbenzene, and Xylene
cPAH: Allowable Cleanup Level Individually for Benzo(a)Anthracene, Benzo(a)pyrene, Benzo(b)fluoranthene,
Benzo(k)fluoranthene, Chrysene, Dibenzo(a,h)anthracene, and lndeno(1,2,3-cd)pyrene
n PAH: Allowable Cleanup Level Individually for Acenaphthene, Acenaphthylene, Anthracene, Benzo(ghi)perylene,
Fluoranthene, Fluorene, Phenanthrene, and Pyrene
NAP: Naphthalene
ppm: part per million (mg/kg)
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PRE APRIL 18,1994 VOLUNTARY REGULATION KAR 42:071 FINAL CHECKLIST
Site Name County
Location UST ID #
Instructions
Place the page # next to each item included in the voluntary closure report. Address all items in writing within each specific section
in the report The completed checklist shall be submitted with each copy of the final report in order to expedite review of the voluntary
closure report.
Page # 2.0 Requirements Prior to August 1,1991
2.1 All soil and water sampling was performed by using SW-846 test methods
2.2 All tank pit walls were sampled according to Section 2.0 requirements
2.3 The bottom of the tank pit was sampled according to Section 2.0 requirements
2.4 Ambient background was sampled according to Section 2.0 requirements if applicable
2.5 Additional sampling was conducted, if necessary
2.6 A Removal Assessment Report Form or a Closure Assessment Report Form is included
2.7 All minimum sampling requirements according to Section 2.0 were followed during re-sampling, if
necessary
2.8 The UST Branch has been contacted in writing explaining why the sampling requirements cannot be
followed, including the alternative sampling plan, if necessary
2.9 The facility was classified in accordance with 401 KAR 42:080, if necessary
3.0 Requirements Between August 1,1991 and April 18,1994
3.1 All soil and water sampling was performed by using the required SW-846 test methods
3.2 Each tank pit wall was sampled according to Section 3.0 requirements
3.3 The bottom of the tank pit was sampled according to Section 3.0 requirements
3.4 The piping trench was sampled according to Section 3.0 requirements
3.5 The excavated material was sampled according to Section 3.0 requirements
3.6 Ambient background was sampled according to Section 3.0 requirements
3.7 A water sample was collected according to Section 3.0 requirements, if necessary
3.8 Hydrogeologically downgradient groundwater was sampled because of elevated levels, if necessary
3.9 Hydrogeologically downgradient groundwater was sampled because of contaminated pit water or pit
water not sampled according to Section 3.0 requirements, if necessary
3.10 Hydrogeologically downgradient groundwater was sampled because of encountered bedrock according
to Section 3.0 requirements, if necessary
3.11 Additional sampling was conducted, if necessary
3.12 A detailed site sketch has been included
3.13 Laboratory analysis reports for all samples are included
3.14 Chain-of-Custody sheet(s) or a laboratory log are included
3.15 A Closure Assessment Report Form (DEP4058) has been included
3.16 All minimum sampling requirements according to Section 3.0 were followed during re-sampling, if
necessary
3.17 The UST Branch has been contacted in writing explaining why the sampling requirements cannot be
followed, including the alternative sampling proposal plan, if necessary
3.18 The facility/site was classified in accordance with 401 KAR 42:080, if necessary
The Pre April 18,1994 Voluntary Regulation 401 KAR 42:071 Final Checklist may be completed and
signed by the owner, operator, contractor, or consultant.
Signature Date
Name and Title (Type or Print)
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PETROLEUM UNDERGROUND STORAGE TANK SYSTEM
FACILITY CLASSIFICATION OUTLINE
This document shall be used, in accordance with Kentucky Administrative Regulation 401 KAR 42:080,
to categorize petroleum underground storage tank (UST) facilities, that submitted a Notice of Intent
to Permanently Close Underground Storage Tanks Form or reported a release after January 1, 1996,
into one of four (4) classes based upon their potential impact to human health, safety, and the
environment. This document shall also be used to categorize petroleum underground storage tank
(UST) facilities, which submitted a Notice of Intent to Permanently Close UST's Form, or reported a
release prior to January 1, 1996, and wish to voluntarily classify. Facilities shall be classified by
assessing site-specific conditions as documented by a Professional Engineer registered with the
Kentucky Board of Registration for Professional Engineers and Land Surveyors, or a Professional
Geologist registered with the Kentucky Board of Registration for Professional Geologists, in order to
establish the allowable residual levels of petroleum.
Facilities with active petroleum UST systems shall also be classified if analytical results of a site check
conducted, in accordance with 401 KAR 42:060, indicate that a release has occurred, or if a confirmed
release has been reported. All active petroleum UST systems required to classify shall determine
allowable residual soil levels of petroleum constituents by placement into Class III or Class IV as
prescribed in this outline.
In every case, allowable residual levels of petroleum constituents in groundwater on site, with the
exception of Class I which mandates the use of specific levels, shall not be determined according to
the applicable Class but shall be determined by using the Groundwater Worksheet.
By answering the questions in the Classification Guide , each UST facility shall be moved into a
particular class and allowable residual levels of petroleum constituents in soil and groundwater shall
be established. Knowledge of site history and other site-specific information may be required to answer
some questions and further research on the part of the owner or operator may be necessary. In
addition, answers to some of these questions may not be possible prior to the site characterization.
The Classification Guide shall be completed, signed, and submitted with the Closure Assessment Report
Form (see the Underground Storage Tank System Closure Outline incorporated by reference in 401 KAR
42:070), Site Check Report (see the Underground Storage Tank System Site Check Outline
incorporated by reference in 401 KAR 42:060), or when specified by the Division.
The allowable residual soil levels in Class III and Class IV may be determined without consideration of
the Point of Compliance if the consent of off-site, affected property owner(s) has been obtained where
elevated levels, in excess of the specified Point of Compliance standards in Class III and Class IV, will
remain on the off-site property. Site-specific conditions and the professional judgement of the
registered professional engineer or registered professional geologist shall be utilized to determine the
presence of elevated residual soil levels on off-site affected properties. Such consent shall be
submitted to the Underground Storage Tank Branch on Form DEP6054/10/95 which is incorporated
by reference in 401 KAR 42:080 and shall be accompanied by a site map identifying the location and
address of off-site affected properties in relation to the UST facility.
Facilities with multiple UST systems may classify each system individually only if the UST systems are
separated by 100 meters (328 feet) or more.
For definition of terms used within this outline, refer to 401 KAR 42:005.
Closure of underground storage tank systems under this classification system shall not constitute
designation as a residual landfill.
If you have any questions, contact the Underground Storage Tank Branch at (502) 564-6716 or 800-
928-4273.
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CLASS I
1.0 Criteria for Closure Under Class I
All of the following criteria shall be established and verified by a registered professional
engineer or registered professional geologist in order for a facility to close under Class I:
1.1 Three (3) UST or fewer are present at the facility. Facilities which have had more than
three (3) regulated UST on site since December 22, 1988 shall not be allowed closure
under Class I;
1.2 The combined total capacity of all UST's, present on site since December 22, 1988,
is less than 6000 gallons;
1.3 The UST's were taken out of service and empty prior to December 22, 1988. UST's
which have been filled with water or other inert materials shall not contain amounts of
free product in excess of 2.5 centimeters (one inch), or 0.3 percent by weight of the
total capacity of the UST system in order to close under Class I;
1.4 Closure of the system is to be performed by removal. Facilities performing closure in
place shall not be allowed closure under Class I;
1.5 No domestic-use wells, springs, cisterns, or well head protection areas are located
within a 100 meter (328 feet) radius from the tank pit;
1.6 No environmentally sensitive features are located within a 100 meter (328 feet) radius
from the tank pit, or are sufficiently determined to be hydrogeologically upgradient from
the tank pit;
1.7 No clear evidence of a release is observed within the excavation zone or excavated
materials (fumes, odors, free product etc.);
1.8 When native soils are encountered, excavation activities shall cease in order to observe
the excavation. See Section 2.0 below regarding water within the excavation; and
1.9 No surficial evidence of a subsurface release (seeps, springs, etc.) is observed outside
of the excavation within a 150 meter (492 feet) radius from the tank pit.
2.0 Water in the Excavation
Inspect any water encountered within the excavation zone for evidence of a release (e.g. sheen
on water surface). If any potential evidence of a release is observed, a determination shall be
made as to whether the water encountered meets the definition of groundwater as defined in
401 KAR 42:005. No action shall be required for groundwater within the excavation zone
which exhibits no observable evidence of a release.
2.1 Water, determined to be groundwater, indicating evidence of a release shall be sampled
and analyzed according to the protocol established in the October 1995 Underground
Storage Tank System Closure Outline.
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If analysis indicates that the levels in this groundwater are above those specified in
Groundwater Table I of the Groundwater Worksheet, the facility shall not be allowed
closure under Class I and shall close under either Class III or Class IV.
If analysis indicates that the levels in this groundwater are below those specified in
Groundwater Table I of the Groundwater Worksheet, the facility may continue closure
under Class I.
2.2 Water encountered within the excavation zone which does not meet the definition of
groundwater, but exhibits potential evidence of a release, must be recovered and
disposed of properly.
3.0 Excavated Material
3.1 Sampling Requirements
Excavated backfill material which exhibits any potential evidence of a release (eg.
unidentified staining or odors), shall be sampled and analyzed, according to the protocol
established in the October 1995 Underground Storage Tank System Closure Outline,
to the levels specified in Soil Table 3.
If analysis indicates levels above those specified in Soil Table 3, the facility shall not
be allowed closure under Class I.
If analysis indicates levels below those specified in Soil Table 3, the facility may
continue closure under Class I.
3.2 Disposal Requirements
If no clear evidence of a release is observed, or if excavated material with unidentified
potential evidence of a release is sampled, analyzed, and meets the levels specified in
Soil Table 3, the material may:
• be used as backfill for the on-site UST pit;
• be disposed of at a permitted landfill or landfarm; or
• be treated on or off site through Registered Permit By Rule requirements of the
Division of Waste Management.
Any excavated material to be used for an unrestricted off-site purpose, shall be
sampled and analyzed, according to the protocol established in the October 1995
Underground Storage Tank System Closure Outline, to meet levels specified in Soil
Table 3.
4.0 Closure
Once it has been established that the criteria and requirements of Sections 1, 2, and 3 have
been satisfied, no further assessment of the excavation shall be necessary.
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5.0 Documentation Requirements
5.1 All data and supporting information shall be collected and submitted to the
Underground Storage Tank Branch which demonstrate that the requirements and
criteria in Sections 1, 2 and 3 have been met.
5.2 Color photographs or color photocopies of the excavation shall be submitted to the
Underground Storage Tank Branch
5.3 A completed and signed Classification Guide shall be submitted to the Underground
Storage Tank Branch.
5.4 Refer to the October 1995 Underground Storage Tank System Closure Outline for
additional closure documentation requirements.
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CLASS II
1.0 Criteria for Closure Under Class II
All of the following criteria shall be established and verified by a registered professional
engineer or registered professional geologist in order to close a UST facility under Class II:
1.1 Closure of the UST system is to be performed by removal. Facilities performing closure
in place shall not be allowed closure under Class II;
1.2 External leak detection devices (as specified in 40 CFR 280.43, e,f), interstitial
monitoring, or secondary barriers have been in operation for the operational life of the
UST system. This includes vapor monitoring, groundwater monitoring, interstitial
monitoring or secondary barriers;
1.3 No leaks or releases have been detected over the operational life of the UST system;
and
1.4 No evidence of a release is observed in the excavation zone (fumes, odors, holes in
tanks or piping, sheen on pit water, free product etc.) after backfill material has been
removed. When native soils are encountered, excavation activities shall cease in order
to observe the excavation.
2.0 Excavated Material
2.1 Sampling Requirements
If the above criteria for closure under Class II have been met, sampling of the removed
backfill material is not required.
2.2 Disposal Requirements
If any evidence of a release (fumes, odors, staining etc.) is present within the removed
backfill material, the material shall:
• be disposed of at a permitted landfill or landfarm; or
• be treated on or off site through Registered Permit-By-Rule requirements of the
Division of Waste Management.
Any removed backfill material to be used for an unrestricted off-site purpose, shall be
sampled and analyzed, according to the protocol established in the October 1995
Underground Storage Tank System Closure Outline, to meet the levels specified in Soil
Table 3.
If there is no evidence of a release within the removed backfill material, the material
may:
• be used as backfill for the on-site UST pit; or
• be disposed of at a permitted landfill or landfarm
Any removed backfill material to be used for an unrestricted off-site purpose, shall be
sampled and analyzed, according to the protocol established in the October 1995
Underground Storage Tank System Closure Outline, to meet the levels specified in Soil
Table 3.
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3.0 Closure
Once it has been established that the criteria and requirements of Sections 1 and 2 have been
satisfied, no further assessment of the excavation shall be necessary.
4.0 Documentation Requirements
4.1 All data and supporting information shall be collected and submitted to the
Underground Storage Tank Branch which demonstrate that the requirements and
criteria in Sections 1 and 2 have been met.
4.2 Color photographs or color photocopies of the excavation shall be submitted to the
Underground Storage Tank Branch.
4.3 A completed and signed Classification Guide shall be submitted.
4.4 Refer to the October 1995 Underground Storage Tank System Closure Outline for
additional closure documentation requirements.
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CLASS III
1.0 Criteria for Closure Under Class III
All of the following criteria shall be established and verified by a registered professional
engineer or registered professional geologist in order for a facility to close under Class III:
1.1 No domestic use wells, springs, cisterns, or well head protection areas are located
within a 100 meter (328 feet) radius from the tank pit.
1.2 No environmentally sensitive features are located within a 50 meter (164 feet) radius
from the tank pit, or are sufficiently documented to be hydrogeologically upgradient
from the tank pit.
1.3 No surficial evidence of a subsurface release (seeps, springs etc.) is observed outside
of the excavation, or fumes detected inside buildings, within a 150 meter (492 feet)
radius from the tank pit.
2.0 General Requirements For Facilities Closing Under Class III
2.1 Any free product encountered shall be recovered immediately.
2.2 Soils within the tank pit, piping trenches, and excavated material shall be sampled and
analyzed according to the protocol specified in the October 1995 Underground Storage
Tank System Closure Outline.
2.3 A groundwater sample shall be collected in the hydrogeologically downgradient area
most likely to be affected by a release from the UST system and analyzed if the
collection of a composite soil sample from the bottom of the excavation or from borings
at the required depth for closure in place or active systems is not possible due to the
presence of bedrock, or if allowable soil levels cannot be achieved at the soil/bedrock
interface.
2.4 Water encountered in the excavation zone, which does not meet the definition of
groundwater, shall be recovered and disposed of properly. If possible, preventive
measures shall be taken to reduce the amount of water entering the excavation zone
from the surface.
2.5 Assess sanitary sewer lines, storm sewer lines, and telephone man-vaults within a 50
meter (164 feet) radius from the tank pit for levels exceeding ten percent (10%) of the
Lower Explosive Limit (LEL). If LEL levels exceed ten percent (10%), initial abatement
measures as prescribed by the October 1995 Underground Storage Tank System
Release Response and Initial Abatement Requirements Outline must be followed.
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3.0 Groundwater
3.1 Any groundwater encountered during the closure process (i.e. within the excavation,
trenches or in any borings required) shall be sampled and analyzed according to the
protocol specified in the October 1995 Underground Storage Tank System Closure
Outline. If levels of petroleum constituents in groundwater exceed those specified by
the
Groundwater.Worksheet, a site investigation shall be performed in accordance with the
October 1995 Underground Storage Tank System Site Investigation Outline.
3.2 If allowable soil levels are present in the walls and bottom of the excavation, and
groundwater has not been encountered within the excavation, an assessment shall be
made to a depth of 1 meter below the bottom of the excavation, or to the soil/bedrock
interface if less than 1 meter below the bottom, to confirm the absence of
groundwater. If groundwater is encountered in the 1 meter zone, it shall be sampled
and analyzed according to the protocol specified in the October 1995 Underground
Storage Tank System Closure Outline. If levels of petroleum constituents in
groundwater exceed those specified by the Groundwater Worksheet, a site
investigation shall be performed in accordance with the October 1995 Underground
Storage Tank System Site Investigation Outline.
4.0 Establishing Soil Cleanup Standards
Two tables, Class III Soil Table 1 and Class III Soil Table 2, specify the allowable residual
petroleum constituent levels in soil for closure under Class III. A site specific determination,
based on the subsequent criteria, shall be made to establish the appropriate Class III Soil Table
to be used.
CLASS III SOIL TABLE 1
5.0 Class III Soil Table 1 Criteria
Class III Soil Table 1 shall be used if any of the following are present:
5.1 The facility is located in a carbonate bedrock setting, as determined through a geologic
quadrangle map analysis, (see Section 5.1, page 15 for a detailed description of this
geologic setting);
5.2 Domestic use wells, springs, cisterns, or well head protection areas are located within
a 100 to 300 meter (328 feet to 984 feet) radius from the tank pit;
5.3 Environmentally sensitive features are located within a 50 to 150 meter (164 feet to
492 feet) radius from the tank pit and are hydrogeologically downgradient from the
tank pit;
5.4 Groundwater is encountered in the tank pit or piping trench excavation, or borings as
required for closure in place and active systems;
5.5 Groundwater is not encountered within the tank pit or piping trench excavation, or
borings as required for closure in place and active systems, and documentation has not
been submitted to demonstrate that groundwater is at a depth of more than 30 feet
from the surface; and
5.6 Water supply lines, sanitary sewer lines, storm sewer lines, or telephone man-vaults are
located within a 50 meter (164 feet) radius from the tank pit.
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6.0 Corrective Action Measures Allowed When Soil Levels Exceed Class III Soil
Table 1 Standards
6.1 The following corrective action measures are allowed to achieve Class III Soil Table 1
levels when levels exceeding those specified in Class III Soil Table 1 do not extend
beyond the Point of Compliance:
• continued excavation; or
• a site investigation performed in accordance with 401 KAR 42:060, followed
by in-situ corrective action performed in accordance with 401 KAR 42:060, or
continued excavation.
6.2 Any residual soil levels in excess of those specified in Class III Soil Table 1, which
extend outside of the Point of Compliance, shall be remediated to achieve the specified
Class IV Soil Matrix Table levels as determined by the following procedures:
• determine the appropriate Class IV Soil Matrix Table, soil type, and depth to
groundwater according to the protocol established within Class IV;
• using the 0-100 distance parameter within the Class IV Soil Matrix Table,
apply the site-specific soil type and depth to groundwater measurements to
determine the allowable levels of petroleum constituents in soil. NOTE: In no
situation shall soil levels exceeding those specified in Class III Soil Table 1 be
allowed outside of the Point of Compliance except as specified in Section 6.4
below.
Class III Soil Table 1 levels may, however, be applied to soil within the Point of
Compliance in this situation.
6.3 The following corrective action measures are allowed to achieve the applicable Class
IV Soil Matrix Table levels outside of the Point of Compliance when soil levels
exceeding those specified in Class III Soil Table 1 extend beyond the Point of
Compliance:
• continued excavation; or
• a site investigation performed in accordance with 401 KAR 42:060, followed
by in-situ corrective action performed in accordance with 401 KAR 42:060, or
continued excavation.
6.4 The allowable residual soil levels in Class III may be determined without consideration
of the Point of Compliance if the consent of off-site, affected property owner(s) has
been obtained where elevated levels, in excess of the specified Point of Compliance
standards in Class III, will remain on the off-site property. Site-specific conditions and
the professional judgement of the registered professional engineer or registered
professional geologist shall be utilized to determine the presence of elevated residual
soil levels on off-site affected properties. Such consent shall be submitted to the
Underground Storage Tank Branch on Form DEP6054/10/95, which is incorporated by
reference in 401 KAR 42:080 and shall be accompanied by a site map identifying the
location and address of off-site affected properties in relation to the UST facility.
CLASS III SOIL TABLE 2
7.0 Class III Soil Table 2 Criteria
Class III Soil Table 2 may be used if all of the following are established:
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7.1 Domestic use wells, springs, cisterns, or well head protection areas are located beyond
a 300 meter (984 feet) radius from the tank pit;
7.2 Environmentally sensitive features are located beyond a 150 meter (492 feet) radius
from the tank pit, or are sufficiently determined to be hydrogeologically upgradient from
the tank pit;
7.3 Site-specific information is submitted to demonstrate that groundwater is at a depth
of more than 30 feet from the surface; and
7.4 Soil samples collected at the nearest hydrogeologically downgradient Point of
Compliance indicate levels below those specified in Class III Soil Table 1. (See Section
8.0 below)
8.0 Point of Compliance Assessment Requirement When Class III Soil Table 2 Is
Used
All facilities requesting closure under Class III Soil Table 2 shall assess the hydrogeologically
downgradient Point of Compliance. Three (3) soil borings shall be conducted to a depth of 15
feet from the surface or to the soil/bedrock interface if encountered less than 15 feet from the
surface. Soil exhibiting the highest field instrumentation reading from each boring shall be
collected in accordance with state sampling protocol and analyzed individually to the standards
specified in Class III Soil Table 1. (see Section 9.4 below)
9.0 Corrective Action Measures Allowed When Soil Levels Exceed Class III Soil
Table 2 Standards
9.1 The following corrective action measures are allowed to achieve Class III Soil Table 2
levels when soil levels exceeding those specified in Class III Soil Table 2 do not extend
to the Point of Compliance:
• continued excavation; or
• a site investigation performed in accordance with 401 KAR 42:060, followed
by in-situ corrective action performed in accordance with 401 KAR 42:060, or
continued excavation.
9.2 Any residual soil levels in excess of those specified in Class III Soil Table 1 at or
extending outside of the Point of Compliance (see section 8.0 above) shall be
remediated to achieve the specified Class IV Matrix Table levels as determined by the
following procedures:
• determine the appropriate Class IV Soil Matrix Table, soil type, and depth to
groundwater according to the protocol established within Class IV;
• using the 0-100 distance parameter within the Class IV Soil Matrix Table,
apply the site-specific soil type and depth to groundwater measurements to
determine the allowable levels of petroleum constituents in soil. NOTE: In no
situation shall soil levels exceeding those specified in Class III Soil Table 1 be
allowed outside of the Point of Compliance except as specified in Section 9.4
below.
Class III Soil Table 1 levels shall be applied to soil within the Point of Compliance in this
situation.
9.3 The following corrective action measures are allowed to achieve the applicable Class
IV Soil Matrix Table levels when soil levels exceeding those specified in Class III Soil
Table 1 extend beyond the Point of Compliance:
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• continued excavation; or
• a site investigation performed in accordance with 401 KAR 42:060, followed
by in-situ corrective action, performed in accordance with 401 KAR 42:060 or
continued excavation.
9.4 The allowable residual soil levels in Class ill may be determined without consideration
of the Point of Compliance if the consent of off-site affected property owner(s) has
been obtained where elevated levels, in excess of the specified Point of Compliance
standards in Class III, will remain on the off-site property. Site-specific conditions and
the professional judgement of the registered professional engineer or registered
professional geologist shall be utilized to determine the presence of elevated residual
soil levels on off-site affected properties. Such consent shall be submitted to the
Underground Storage Tank Branch on Form DEP6054/10/95, which is incorporated by
reference in 401 KAR 42:080 and shall be accompanied by a site map identifying the
location and address of off-site affected properties in relation to the UST facility.
10.0 Excavated Material
10.1 Sampling Requirements
All excavated material shall be sampled and analyzed in accordance with the October
1995 Underground Storage Tank System Closure Outline.
10.2 Disposal Requirements
The following options are available for the disposal of excavated material:
• Excavated material may be used as backfill for the on-site UST pit if analysis
indicates levels below those specified in the applicable table (Class III Tables
1 or 2). If this option is chosen, a layer of clean material shall be placed above
the backfilled excavated material to a minimum depth of two (2) meters (6.5
feet) from the ground surface.
• Excavated material may be disposed of at a permitted landfill or landfarm.
• Excavated material may be treated on or off site through Registered Permit-By-
Rule requirements of the Division of Waste Management.
• If the excavated material is to be used for any un-restricted off-site purpose,
it shall be sampled and analyzed to the levels specified in Soil Table 3 (page
26). If analysis indicates levels above those specified in Soil Table 3, the
material shall be disposed of properly.
11.0 Documentation Requirements
11.1 All data and supporting information shall be collected and submitted to the
Underground Storage Tank Branch.
11.2 A completed and signed Classification Guide shall be submitted to the Underground
Storage Tank Branch.
11.3 Refer to the October 1995 Underground Storage Tank System Closure Outline for
additional closure documentation requirements.
11.4 A completed and signed Consent Form DEP 6054/10/95 shall be submitted to the
Underground Storage Tank Branch if the Point of Compliance requirements are
disregarded.
11
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CLASS III SOIL TABLE 1

BTEX

BENZENE

2
PPM
TOLUENE

18
PPM
ETHYLBENZENE
30
PPM
XYLENE (TOTAL)
50
PPM

PAH

15
PPM
B(a)A

0.15
PPM
cPAH

0.3
PPM
nPAH

10
PPM
NAP

5.0
PPM

Total Lead

50 PPM or Established Background
CLASS III SOIL TABLE 2

BTEX

BENZENE

10
PPM
TOLUENE

90
PPM
ETHYLBENZENE
150
PPM
XYLENE (TOTAL)
250
PPM

PAH

15
PPM
B(a)A

0.15
PPM
cPAH

0.3
PPM
nPAH

100
PPM
NAP

50
PPM

Total Lead

50 PPM or Established Background
BTEX: Benzene, Toluene, Ethylbenzene, and Xylene(total)
PAH: Polynuclear Aromatic Hydrocarbons
Ch: Allowable level individually for Chrysene
B(a)A: Allowable level individually for Benzo(a)anthracene
cPAH: Allowable level individually for Benzo(a)pyrene, Benzo(b)fluoranthene, Benzo(k)fluoranthene,
Dibenzo(a,h)anthracene, and ldeno(1,2,3-cd)pyrene
nPAH: Allowable level individually for Acenaphthene, Acenaphthylene, Anthracene, Benzo(ghi)perylene,
Fluoranthene, Fluorene, Phenanthrene, and Pyrene.
NAP: Allowable Level Individually for Naphthalene
PPM: mg/kg - Part Per Million
NOTE: Refer to the October 1995 Underground Storage Tank System Closure Outline for details concerning analytical
requirements and procedures for establishing background.
For allowable levels in groundwater, refer to the Groundwater Worksheet.
12
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CLASS IV
1.0 Procedural Requirements
The following procedures shall be required to establish the allowable levels of petroleum
constituents in soil for closure, and shall be documented by a registered professional engineer
or registered professional geologist. This class includes all facilities which do not meet the
requirements of Classes I, II or III.
1.1 Any free product encountered shall be recovered immediately.
1.2 Soil type shall be determined according to grain size. The soil samples to be analyzed
for grain size shall be collected from the bottom of the pit, with three (3) samples
collected along the longest straight line that can be drawn diagonally across the pit;
take one sample at each end and one in the middle of the line. {Facilities performing
closure in place shall collect samples from the bottom of three (3) of the borings
required.) Each of these samples shall be classified individually according to ASTM
Designation: D 422-63 (Reapproved 1990) Standard Test Method For Particle-Size
Analysis of Soils. The soil type shall be defined by the 50 percent value |D50) as
plotted on a grain size distribution curve (a semi-logarithmic plot) with weight percent
finer plotted on the arithmetic scale and the grain sizes plotted on the semi-logarithmic
scale. If two or more of the three soils analyzed fall into one soil type, that shall be the
soil type for the facility. If the soil types are all different, the sand size shall be the soil
type for the facility.
If collection of soil samples is not possible from the bottom of the excavation due to
bedrock, three (3) samples shall be collected from the walls of the excavation as close
to the bottom of the excavation as possible for grain size analysis using the above
methodology. In situations where the excavation is made up entirely of bedrock and
soil sample collection is not possible from either the bottom or the walls of the
excavation, the sand size shall be used as the soil type for the facility.
The requirement for soil grain size analysis shall be waived if the most stringent Class
IV Soil Matrix Table levels are used, taking into account each soil type and the
appropriate depth to groundwater and distance parameters within the applicable Class
IV Soil Matrix Table.
1.3 Determine the depth of any groundwater encountered during the closure process.
1.4 Determine the distance to the nearest hydrogeologically downgradient Point of
Compliance from the tank pit.
1.5 Determine the distance to any hydrogeologically downgradient environmentally
sensitive features within a 300 meter (984 feet) radius from the tank pit.
1.6 Determine the distance to any domestic use wells, springs, cisterns, or well head
protection areas within a 300 meter (984 feet) radius from the tank pit.
1.7 Investigate and document any evidence of fumes or petroleum odors in adjacent
buildings within a 150 meter (492 feet) radius from the tank pit.
13
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2.0 General Requirements For Facilities Closing Under Class IV
2.1 Any free product encountered shall be recovered immediately.
2.2 Soils within the tank pit, piping trenches and excavated material shall be sampled and
analyzed according to the protocol specified in the October 1995 Underground Storage
Tank System Closure Outline.
2.3 A groundwater sample shall be collected in the hydrogeologically downgradient area
most likely to be affected by a release from the UST system and analyzed, if the
collection of a composite soil sample from the bottom of the excavation or from borings
at the required depth for closure in place is not possible due to the presence of
bedrock, or if allowable soil levels cannot be achieved at the soil/bedrock interface.
2.4 Water encountered in the excavation zone that does not meet the definition of
groundwater shall be recovered and disposed of properly. If possible, preventive
measures shall be taken to reduce the amount of water entering the excavation from
the surface.
2.5 Assess sanitary sewer lines, storm sewer lines, and telephone man-vaults within a 50
meter (164 feet) radius from the tank pit for levels exceeding ten percent (10%) of the
Lower Explosive Limit (LEL). If LEL levels exceed ten percent (10%), initial abatement
measures as prescribed by the October 1995 Underground Storage Tank System
Release Response and Initial Abatement Requirements Outline must be followed.
3.0 Groundwater
3.1 Any groundwater encountered during the closure process (i.e. within the excavation,
trenches or in any borings required) shall be sampled and analyzed according to the
protocol specified in the October 1995 Underground Storage Tank System Closure
Outline. If levels of petroleum constituents in groundwater exceed those specified by
the Groundwater Worksheet, a site investigation shall be performed in accordance with
the October 1995 Underground Storage Tank System Site Investigation Outline.
3.2 If allowable soil levels are present in the walls and bottom of the excavation, and
groundwater has not been encountered within the excavation, an assessment shall be
made to a depth of 1 meter below the bottom of the excavation, or to the soil/bedrock
interface if less than 1 meter below the bottom, to confirm the absence of
groundwater. If groundwater is encountered in the 1 meter zone, it shall be sampled
and analyzed according to the protocol specified in the October 1995 Underground
Storage Tank System Closure Outline. If levels of petroleum constituents in
groundwater exceed those specified by the Groundwater Worksheet, a site
investigation shall be performed in accordance with the October 1995 Underground
Storage Tank System Site Investigation Outline.
4.0 Selection of a Matrix Table
Each facility in Class IV shall be placed into one of three Class IV Soil Matrix Tables, which
indicate the allowable soil levels for closure, based upon the geologic setting in which the
facility is located. The geologic setting of the facility shall be determined by locating the
facility on a 7.5 Minute USGS Geological Quadrangle Map. A description of the geology is in
the legend where a geologic column for the quadrangle and a detailed description of the
formations is presented.
14
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4.1 NOTE: Any facility with plastic PVC water supply lines within a 50 meter (164 feet) radius
from the tank pit, or with storm sewer lines, sanitary sewer lines, or telephone man-
vaults within a 50 meter (164 feet) radius from the tank pit which, when measured
within the conduit, indicate levels exceeding ten percent (10%) of the Lower Explosive
limit (LEL), shall be placed into Class IV Soil Matrix Table I.
5.0 Geologic Formations Included in Each Matrix Table
5.1 Class IV Soil Matrix Table I
Carbonate Bedrock Settings: These areas are underlain by carbonate rocks including
limestone, dolostone, interbedded limestone and shale, or interbedded dolostone and
shale. Carbonate rocks will be shown on the 7.5 Minute USGS Geologic Quadrangle
Map as geologic formations composed of limestone or dolomite.
5.2 Class IV Soil Matrix Table II
Alluvium: These areas are underlain by deposits of Quaternary Alluvium found
predominantly in the valleys along major streams (third order or greater). This setting
includes sediments of lacustrine deposition or sediments derived from other glacial
deposits.
Fractured Shales: These areas are underlain by thick sections of fractured shale and
include the Devonian and Lower Mississippian shales as well as other areas of the state
where shale is the predominant bedrock material.
Fractured Sandstone and Shale (Eastern Coal Field): These areas are underlain by
alternating units of sandstone, siltstone, shale, limestone, coal, and clay. These
deposits are mapped on the Geologic Quadrangle maps as predominantly Pennsylvanian
in age and occur in the Eastern Coal Field Physiographic Region of the state.
5.3 Class IV Soil Matrix Table III
Gulf Coastal Plain Sediments: These areas are underlain by sediments of Cretaceous
and Tertiary Age and are commonly overlain by Pleistocene loess. This geologic setting
is found mainly in the Jackson Purchase Physiographic Region of Western Kentucky.
Note: Quaternary Alluvial deposits located within the Jackson Purchase Physiographic
region are not considered Gulf Coastal Plain Sediments and shall be referred to Class
IV Soil Matrix Table II.
Fractured Sandstone and Shale (Western Coal Field): These areas are underlain by
alternating units of sandstone, siltstone, shale, limestone, coal, and clay. These
deposits are mapped on the Geologic Quadrangle maps as predominantly Pennsylvanian
in age and occur in the Western Coal Field Physiographic Region of the state.
15
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6.0
Criteria To Determine Appropriate Soil Levels Within Each Class IV Soil Matrix
Table
Once the facility has been placed into the appropriate Class IV Soil Matrix Table, the applicable
soil levels shall be based on all of the following criteria:
• depth to groundwater;
• distance to the nearest hydrogeologically downgradient Point of Compliance
from the tank pit (see Section 8.3);
• distance to domestic use wells, springs, cisterns, or well head protection areas
if less than the distance to the nearest hydrogeologically downgradient property
line;
• distance to hydrogeologically downgradient environmentally sensitive features
if less than the distance to the nearest hydrogeologically downgradient property
line; and
• soil type present at the facility (sand, silt, or clay).
6.1 NOTE: Environmentally sensitive features within 300 meters (984 feet) shall not dictate the
allowable levels in this class if sufficient documentation is submitted to indicate that the feature
is hydrogeologically upgradient from the tank pit.
7.0 Determining Depth To Groundwater
7.1 Depth to groundwater shall be determined by the following:
• assessment of existing monitoring devices on site;
• performance of a site-specific investigation (e.g. drilling to groundwater, etc.) to
determine depth to groundwater;
• a visual examination of the tank pit and piping trench - if existing monitoring devices
are not present on site for an actual determination to be made as to depth to
groundwater, or to avoid a site-specific investigation, e.g. drilling until groundwater is
encountered, etc. If groundwater is encountered within the tank pit excavation, piping
trench, or borings as required for closure in place and active systems, the 4.5 Meter
depth to groundwater levels shall be used within the appropriate Class IV Soil Matrix
Table. If groundwater is not present within the tank pit excavation, piping trench, or
borings as required for closure in place and active systems, the actual depth of the tank
pit excavation shall be noted, and the depth listed in the appropriate Class IV Soil
Matrix Table which is equal to or immediately greater than the actual depth of the tank
pit excavation shall be used.
7.2 If an actual determination of depth to groundwater, below the bottom of the
excavation, is made which falls between the depths listed within the Class IV Soil
Matrix Tables, the upper depth listed shall be used to determine allowable levels. For
example, if the depth to groundwater is established at 12 meters through a site-specific
determination, the 10.5 meter depth to groundwater levels shall be used as opposed
to the 13.5 meter depth to groundwater levels.
16
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8.0 Corrective Action and Point of Compliance Requirements
8.1 Any residual soil levels in excess of those specified in Class III Soil Table 1, which
extend outside of the Point of Compliance, shall be remediated to achieve the specified
Class IV Soil Matrix Table levels as determined by the following procedures:
• determine the appropriate Class IV Soil Matrix Table, soil type, and depth to
groundwater according to the protocol established within Class IV;
• using the 0-100 distance parameter within the Class IV Soil Matrix Table,
apply the site-specific soil type and depth to groundwater measurements to
determine the allowable levels of petroleum constituents in soil. NOTE: In no
situation shall soil levels exceeding those specified in Class III Soil Table 1 be
allowed outside of the Point of Compliance except as specified in Section 8.3
below.
Original Class IV Soil Matrix Table levels may, however, be applied to soil within the
Point of Compliance in this situation.
8.2 The following options are available to achieve allowable levels when soil levels exceed
those specified in the applicable Class IV Soil Matrix Table as prescribed within and
outside of the Point of Compliance:
• continued excavation; or
• a site investigation performed in accordance with 401 KAR 42:060, followed
by in-situ corrective action performed in accordance with 401 KAR 42:060, or
continued excavation.
8.3 The allowable residual soil levels in Class IV may be determined without consideration
of the Point of Compliance if the consent of off-site affected property owner(s) has
been obtained where elevated levels, in excess of the specified Point of Compliance
standards in Class IV, will remain on the off-site property. Site-specific conditiohs and
the professional judgement of the registered professional engineer or registered
professional geologist shall be utilized to determine the presence of elevated residual
soil levels on off-site affected properties. Such consent shall be submitted to the
Underground Storage Tank Branch on Form DEP6054/10/95, which is incorporated by
reference in 401 KAR 42:080 and shall be accompanied by a site map identifying the
location and address of off-site affected properties in relation to the UST facility.
9.0 Excavated Material
9.1 Sampling Requirements
All excavated material shall be sampled and analyzed in accordance with the October
1995 Underground Storage Tank System Closure Outline.
9.2 Disposal Requirements
The following options are available for the disposal of excavated material:
• Excavated material may be used as backfill for the on-site UST pit if analysis
indicates levels below those specified in the applicable Class IV Soil Matrix
Table. If this option is chosen, a layer of clean material shall be placed above
the backfilled excavated material to a minimum depth of two (2) meters (6.5
feet) from the ground surface;
17
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Excavated material may be disposed of at a permitted landfill or landfarm;
Excavated material may be treated on or off site through Registered Permit-By-
Rule requirements of the Division of Waste Management; or
If the excavated material is to be used for any un-restricted off-site purpose,
it shall be sampled and analyzed to the levels specified in Soil Table 3 (page
25). If analysis indicates levels above those specified in Soil Table 3, the
material shall be disposed of properly.
10.0 Documentation Requirements
10.1 All data and supporting information shall be collected and submitted to the
Underground Storage Tank Branch.
10.2 A completed and signed Classification Guide shall be submitted to the Underground
Storage Tank Branch.
10.3 Refer to the October 1995 Underground Storage Tank System Closure Outline for
additional closure documentation requirements.
10.4 A completed and signed Consent Form DEP 6054/10/1995 shall be submitted to the
Underground Storage Tank Branch if the Point of Compliance requirements are
disregarded.
18
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CLASS IV SOIL k MX TABLE I - (A)
(Gasoline, Kerosene, Jet Fuel)
SOIL
TYPE
DEPTH TO
GROUNDWATER
(METERS)
DISTANCE TO HYDROGEOLOGICALLY DOWNGRADIENT POINT OF COMPLIANCE, DOMESTIC USE
WELL, SPRING, CISTERN, OR WELL HEAD PROTECTION AREA, OR ENVIRONMENTALLY SENSITIVE
FEATURE

0-100 METERS
100 - 300 METERS
> 300 METERS

B/T/E/X (PPM)
B/T/E/X (PPM)
B/T/E/X (PPM)
SAND
4.5
5.5
7.5
10.5
0.1/35/30/210
0.5/110/100/500
0.8/180/160/500
1.0/1 80/230/500
0.1/100/120/500
0.4/180/300/500
0.8/180/300/500
1.0/180/300/500
1.0/180/300/500
4.0/180/300/500
7.0/180/300/500
10/180/300/500

0-100 METERS
100 - 300 METERS
> 300 METERS

B/T/E/X (PPM)
B/T/E/X (PPM)
B/T/E/X (PPM)
SILT
4.5
5.5
7.5
10.5
0.1/35/30/230
0.4/80/80/500
0.6/180/140/500
1.0/180/240/500
0.1/100/120/500
0.4/180/290/500
0.6/180/300/500
1.0/180/300/500
1.0/180/300/500
4.0/180/300/500
6.0/180/300/500
12/180/300/500

0-100 METERS
100 - 300 METERS
> 300 METERS

B/T/E/X (PPM)
B/T/E/X (PPM)
B/T/E/X (PPM)
CLAY
4.5
5.5
7.5
10.5
0.1/35/30/240
0.3/80/60/470
0.5/150/100/500
2.0/180/300/500
0.1/100/120/500
0.3/180/220/500
0.5/180/300/500
2.0/180/300/500
1.0/180/300/500
3.0/180/300/500
5.0/180/300/500
16/180/300/500
B/T/E/X: Benzene/Toluene/Ethylbenzene/Xylene
-------
CLASS IV SOIL MATRIX TABLE I - (B)
(Diesel, Waste Oil, New Oil)
SOIL
TYPE
DEPTH TO
GROUNDWATER
(METERS)
DISTANCE TO HYDROGEOLOGICALLY DOWNGRADIENT POINT OF COMPLIANCE, DOMESTIC USE WELL, SPRING,
CISTERN, OR WELL HEAD PROTECTION AREA, OR ENVIRONMENTALLY SENSITIVE FEATURE
SAND
4.5
5.5
7.5
10.5
0-100 METERS
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
15/0.15/0.3/10/5.0 50 OR BGRD.
15/0.15/0.3/10/5.0 50 OR BGRD.
15/0.15/0.3/10/5.0 50 OR BGRD.
15/0.15/0.3/10/5.0 50 OR BGRD.
100 -300 METERS
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
15/0.15/0.3/20/10 50 OR BGRD.
15/0.15/0.3/20/10 50 OR BGRD.
15/0.15/0.3/20/10 50 OR BGRD.
15/0.15/0.3/20/10 50 OR BGRD.
> 300 METERS
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
15/0.15/0.3/100/50 50 OR BGRD.
15/0.15/0.3/100/50 50 OR BGRD.
15/0.15/0.3/100/50 50 OR BGRD.
15/0.15/0.3/100/50 50 OR BGRD.
SILT
4.5
5.5
7.5
10.5
0 -100 METERS
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
15/0.15/0.3/10/5.0 50 OR BGRD.
15/0.15/0.3/10/5.0 50 OR BGRD.
15/0.15/0.3/10/5.0 50 OR BGRD.
15/0.15/0.3/10/5.0 50 OR BGRD.
100 - 300 METERS
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
15/0.15/0.3/20/10 50 OR BGRD.
15/0.15/0.3/20/10 50 OR BGRD.
15/0.15/0.3/20/10 50 OR BGRD.
15/0.15/0.3/20/10 50 OR BGRD.
> 300 METERS
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
15/0.15/0.3/100/50 50 OR BGRD.
15/0.15/0.3/100/50 50 OR BGRD.
15/0.15/0.3/100/50 50 OR BGRD.
15/0.15/0.3/100/50 50 OR BGRD.
CLAY
4.5
5.5
7.5
10.5
0-100 METERS
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
15/0.15/0.3/10/5.0 50 OR BGRD.
15/0.15/0.3/10/5.0 50 OR BGRD.
15/0.15/0.3/10/5.0 50 OR BGRD.
15/0.15/0.3/10/5.0 50 OR BGRD.
100-300 METERS
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
15/0.15/0.3/20/10 50 OR BGRD.
15/0.15/0.3/20/10 50 OR BGRD.
15/0.15/0.3/20/10 50 OR BGRD.
15/0.15/0.3/20/10 50 OR BGRD.
> 300 METERS
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
15/0.15/0.3/100/50 50 OR BGRD.
15/0.15/0.3/100/50 50 OR BGRD.
15/0.15/0.3/100/50 50 OR BGRD.
15/0.15/0.3/100/50 50 OR BGRD.
PAH: Polynuclear Aromatic Hydrocarbons
Ch: Allowable level individually for Chrysene
B(a)A: Allowable level individually for Benzo(a)anthracene
cPAH: Allowable level individually for Benzo(a)pyrene, Benzo(b)fluoranthene, Benzo(k)fluoranthene, Dibenzo(a,h)anthracene, and ldeno(1,2,3-cd)pyrene
nPAH: Allowable Level Individually for Acenaphthene, Acenaphthylene, Anthracene, Benzo(ghi)perylene, Fluoranthene, Fluorene, Phenanthrene, and
Pyrene.
NAP: Allowable Level Individually for Naphthalene
PPM: mg/kg - Part Per Million
50 or BGRD: 50 Parts Per Million or Site-Specifically Established Background for Total Lead
-------
CLASS IV SOIL l\/.«. RIX TABLE II - (A)
(Gasoline, Kerosene, Jet Fuel)
SOIL
DEPTH TO
DISTANCE TO HYDROGEOLOGICALLY DOWNGRADIENT POINT OF COMPLIANCE,
DOMESTIC USE WELL, SPRING,
TYPE
GROUNDWATER
CISTERN, OR WELL HEAD PROTECTION AREA, OR ENVIRONMENTALLY SENSITIVE FEATURE

(METERS)

0-100 METERS
100 - 300 METERS
> 300 METERS

B/T/E/X (PPM)
B/T/E/X (PPM)
B/T/E/X (PPM)

4.5
0.01/0.5/0.4/3.0
0.07/45/100/330
20/180/300/500
SAND
5.5
0.01/2.0/2.0/18
0.3/180/300/500
20/180/300/500
7.5
0.02/7.0/4.0/40
0.9/180/300/500
20/180/300/500

10.5
0.05/20/10/90
2.0/180/300/500
20/180/300/500

13.5
0.1/40/20/190
4.0/180/300/500
20/180/300/500

16.5
0.2/70/40/320
7.0/180/300/500
20/180/300/500

23.5
1.0/180/210/500
20/180/300/500
20/180/300/500

0-100 METERS
100 - 300 METERS
> 300 METERS

B/T/E/X (PPM)
B/T/E/X ( PPM)
B/T/E/X (PPM)
SILT
4.5
5.5
7.5
10.5
13.5
16.5
23.5
0.01/0.5/0.4/3.0
0.03/2.0/4.0/40
0.2/40/30/330
0.8/180/180/500
6.0/180/300/500
20/180/300/500
20/180/300/500
0.07/45/100/330
1.0/180/300/500
10/180/300/500
20/180/300/500
20/180/300/500
20/180/300/500
20/1 80/300/500
20/180/300/500
20/180/300/500
20/180/300/500
20/180/300/500
20/180/300/500
20/180/300/500
20/180/300/500

0-100 METERS
100 - 300 METERS
> 300 METERS

B/T/E/X (PPM)
B/T/E/X (PPM)
B/T/E/X (PPM)

4.5
0.01/0.5/0.4/3.0
0.07/45/100/330
20/180/300/500
CLAY
5.5
0.1/50/40/250
7.0/180/300/500
20/180/300/500
7.5
19/180/300/500
20/180/300/500
20/180/300/500

10.5
20/180/300/500
20/180/300/500
20/180/300/500

13.5
20/180/300/500
20/180/300/500
20/180/300/500

16.5
20/180/300/500
20/180/300/500
20/180/300/500

23.5
20/180/300/500
20/180/300/500
20/180/300/500
B/T/E/X: Benzene/Toluene/Ethylbenzene/Xylene(total)
PPM: Part Per Million
21
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CLASS IV SOIL MATRIX TABLE II - (B)
(Diesel, Waste Oil, New Oil)
SOIL
DEPTH TO
DISTANCE TO HYDROGEOLOGICALLY DOWNGRADIENT POINT OF COMPLIANCE ,
DOMESTIC USE WELL,
SPRING,
TYPE
GROUNDWATER
CISTERN, OR WELL HEAD PROTECTION AREA, OR ENVIRONMENTALLY SENSITIVE FEATURE

(METERS)

0-100 METERS
100 - 300 METERS
> 300 METERS

Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
SAND
4.5
5.5
7.5
10.5
13.5
16.5
23.5
15/0.15/0.3/3.0/1.0
15/0.15/0.3/9.0/2.0
15/0.15/0.3/10/4.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.

0-100 METERS
100 - 300 METERS
> 300 METERS

Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)

4.5
15/0.15/0.3/3.0/1.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.
SILT
5.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.
7.5
15/0,15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.

10.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.

13.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.

16.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.

23.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.

0-100 METERS
100 - 300 METERS
> 300 METERS

Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)

4.5
15/0.15/0.3/3.0/1.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.
CLAY
5.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.
7.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.

10.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.

13.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.

16.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
50 OR BGRD.

23.5
15/0.15/0.3/10/5.0
50 OR BGRD.
15/0.15/0.3/20/10
50 OR BGRD.
15/0.15/0.3/100/50
60 OR BGRD.
PAH: Polynuclear Aromatic Hydrocarbons
Ch: Allowable level individually for Chrysene
B(a)A: Allowable level individually for Benzo(a)anthracene
cPAH: Allowable level individually for Benzo(a)pyrene, Benzo(b)fluoranthene, Benzo(k)fluoranthene, Dibenzo(a,h)anthracene, and ldeno(1,2,3-cd)pyrene
nPAH: Allowable Level Individually for Acenaphthene, Acenaphthylene, Anthracene, Benzo(ghi)perylene, Fluoranthene, Fluorene, Phenanthrene, and Pyrene.
NAP: Allowable Level Individually for Naphthalene
50 or BGRO: 50 Parts Per Million or Site-Specifically Established Background for Total Lead
-------
CLASS IV SOIL IW - 300 METERS

B/T/E/X (PPM)
B/T/E/X (PPM)
B/T/E/X (PPM)

4.5
0.01/0.5/0.4/3.0
0.01/4.0/5.0/30
0.1/60/150/430
SAND
5.5
0.01/2.0/1.0/13
0.04/16/18/110
0.3/180/300/500
7.5
0.01/4.0/2.0/20
0.08/30/30/1 70
0.6/180/300/500

10.5
0.02/6.0/3.0/30
0.1/50/40/250
0.9/180/300/500

13.5
0.02/8.0/4.0/40
0.1/70/50/310
1.0/180/300/500

16.5
0.03/9.0/5.0/50
0.2/80/60/390
1.0/180/300/500

23.5
0.05/15/8.0/80
0.3/120/100/500
2.0/180/300/500

0-100 METERS
100 - 300 METERS
> 300 METERS

B/T/E/X (PPM)
B/T/E/X (PPM)
B/T/E/X (PPM)

4.5
0.01/0.5/0.4/3.0
0.01/4.0/5.0/30
0.1/60/150/430
SILT
5.5
0.01/1.0/1.0/10
0.04/10/13/90
0.3/130/300/500
7.5
0.01/3.0/2.0/20
0.06/25/20/1 70
0.5/180/300/500

10.5
0.02/5.0/3.0/30
0.1/45/40/260
1.0/180/300/500

13.5
0.03/8.0/5.0/45
0.2/70/60/390
1.0/180/300/500

16.5
0.04/12/9.0/70
0.2/100/100/500
2.0/180/300/500

23.5
0.09/30/18/150
0.6/180/220/500
4.0/180/300/500

0-100 METERS
100 - 300 METERS
> 300 METERS

B/T/E/X (PPM)
B/T/E/X (PPM)
B/T/E/X (PPM)

4.5
0.01/0.5/0.4/3.0
0.01/4.0/5.0/30
0.1/60/150/430
CLAY
5.5
0.01/0.7/0.8/7.0
0.03/6.0/10/60
0.3/80/280/500
7.5
0.01/2.0/1.0/13
0.05/19/17/110
0.4/180/300/500

10.5
0.03/7.0/7.0/40
0.2/60/80/370
1.0/180/300/500

13.5
0.09/20/15/120
0.5/170/180/500
4.0/180/300/500

16.5
0.4/50/35/290
2.0/180/300/500
18/180/300/500

23.5
0.5/50/70/330
3.0/180/300/500
20/180/300/500
B/T/E/X: Benzene/Toluene/Ethylbenzene/Xylene(total)
PPM: Part Per Million
23
-------
CLASS IV SOIL MATRIX TABLE III - (B)
(Diesel, Waste Oil. New Oil)
SOIL
TYPE
DEPTH TO
GROUNDWATER
(METERS)
DISTANCE TO HYDROGEOLOGICALLY DOWNGRADIENT POINT OF COMPLIANCE, DOMESTIC USE WELL,
CISTERN, OR WELL HEAD PROTECTION AREA, OR ENVIRONMENTALLY SENSITIVE FEATURE
SPRING,

0-100 METERS
100 - 300 METERS
> 300 METERS

Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
SAND
4.5
5.5
7.5
10.5
13.5
16.5
23.5
15/0.15/0.3/3.0/1.0
15/0.15/0.3/8.0/2.0
15/0.15/0.3/10/2.0
15/0.15/0.3/10/4.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 or BGRD.
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.

0-100 METERS
100 - 300 METERS
> 300 METERS

Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
SILT
4.5
5.5
7.5
10.5
13.5
16.5
23.5
15/0.15/0.3/3.0/1.0
15/0.15/0.3/6.0/1.0
15/0.15/0.3/10/3.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
50 OR BGRD.
60 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/50/10
15/0.15/0.3/50/10
15/0.15/0.3/50/10
15/0.15/0.3/50/10
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0,3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.

0 -100 METERS
100- 300 METERS
> 300 METERS

Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
Ch/B(a)A/cPAH/nPAH/NAP (PPM) LEAD (PPM)
CLAY
4.5
5.5
7.5
10.5
13.5
16.5
23.5
15/0.15/0.3/3.0/1.0
15/0.15/0.3/8.0/2.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
15/0.15/0.3/10/5.0
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0.15/0.3/20/10
15/0,15/0.3/20/10
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
15/0.15/0.3/100/50
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
50 OR BGRD.
PAH: Polynuclear Aromatic Hydrocarbons
Ch: Allowable level individually for Chrysene
B(a)A: Allowable level individually for Benzo(a)anthracene
cPAH: Allowable level individually for Benzo(a)pyrene, Benzolblfluoranthene, Benzo(k)fluoranthene, Dibenzo(a,h)anthracene, and ldeno(1,2,3-cd)pyrene
nPAH: Allowable Level Individually for Acenaphthene, Acenaphthylene, Anthracene, Benzo(ghi)perylene, Fluoranthene, Fluorene, Phenanthrene, and Pyrene.
NAP: Allowable Level Individually for Naphthalene
50 or BGRD: 50 Parts Per Million or Site-Specifically Established Background for Total Lead
-------
SOIL TABLE 3
ALLOWABLE SOIL LEVELS IN EXCAVATED MATERIALS TO BE USED FOR
UN-RESTRICTED OFF SITE PURPOSES

BTEX

BENZENE

0.01
PPM
TOLUENE

0.7
PPM
ETHYLBENZENE
0.9
PPM
XYLENE

5.0
PPM

PAH

15
PPM
B(a)A

0.15
PPM
cPAH

0.3
PPM
nPAH

3.0
PPM
NAP

1.0
PPM

Total Lead

Benzo(k)fluoranthene, Dibenzo(a,h)anthracene, and ldeno(1,2,3-cd)pyrene
nPAH:
Allowable Level Individually for Acenaphthene, Acenaphthylene, Anthracene,

Benzo(ghi)perylene, Fluoranthene, Fluorene, Phenanthrene, and Pyrene.
NAP:
Allowable Level Individually for Naphthalene
PPM:
mg/kg - Part Per Million
NOTE: Refer to the October 1995 Underground Storage Tank System Closure Outline for details
concerning analytical requirements and procedures for establishing background.
For allowable levels in groundwater, refer to the Groundwater Worksheet.
25
-------
GROUNDWATER WORKSHEET
1.0 General
In situations where groundwater has been encountered and an assessment is necessary, the
allowable levels in groundwater shall be established through an assessment of site-specific
conditions as determined by a registered professional engineer or registered professional
geologist.
2.0 Establishing Groundwater Cleanup Standards
2.1 Two tables, Groundwater Table I and Groundwater Table II (page 31), specify the allowable
residual levels in groundwater for closure. A site-specific determination, based on the
subsequent criteria, shall be made to establish the appropriate table to be used.
NOTE: All facilities shall meet the requirements of 401 KAR 5:031, the surface water
standards, for environmentally sensitive features.
GROUNDWATER TABLE I
3.0 Groundwater Table I Criteria
3.1 Groundwater Table I shall be used if the following conditions exist:
• The facility is serviced by a public water supply, and groundwater is
encountered at a depth of 3.0 meters (9.84 feet) or less from the ground
surface; or
• Domestic use wells, springs, cisterns, or well head protection areas are located
within a 300 meter (984 feet) radius from the tank pit.
26
-------
GROUNDWATER TABLE II
4.0 Groundwater Table II Criteria
Groundwater Table II may be used if the following conditions in sections 4.1 or 4.2 exist:
4.1 The facility is serviced by a public water supply and;
• No domestic use wells, springs, cisterns, or well head protection areas are
located within a 300 meter (984 feet) radius from the tank pit; and
• Groundwater has not been encountered at a depth of 3.0 meters (9.84 feet)
or less from the ground surface.
4.2 The facility is not serviced by a public water supply and;
• No domestic use wells, springs, cisterns, or well head protection areas are
located within a 300 meter (984 feet) radius from the tank pit; and
• The affected groundwater is not a current or potential source for domestic use.
(See Section 4.3 below)
4.3 Groundwater shall not be considered a current or potential source for domestic use if
any of the following conditions are verified:
• The affected groundwater zone yields less than 150 gallons per day as
determined by a registered professional engineer or geologist using acceptable
hydrological methodologies;
• Analysis of any affected groundwater indicates total dissolved solids (TDS) in
excess of 10,000 ppm as per 40 CFR 136 method 160.2;
• An estimation based on relevant information/data (e.g. local pump tests and
analysis of similar or same formations, published information, etc.) indicates
that the yields of any affected groundwater can be reasonably expected to be
less than 150 gallons per day, or that total dissolved solids (TOS) of any
affected groundwater can be reasonably expected to exceed 10,000 ppm.
5.0 Public Notice Requirements With The Use Of Groundwater Table II
If a Classification Guide is submitted that indicates that the levels specified in Groundwater
Table II are applicable according to the above criteria, and site-specific analysis of groundwater
indicates that levels exceeding those specified in Groundwater Table I are present, a Public
Notice indicating the intention to leave these levels of petroleum remaining in the groundwater,
without plans to remediate, is required. This Public Notice shall be published one time in a
newspaper having general circulation in the county where the facility is located. Submit one
copy of an invoice and two copies of an affidavit of publication to the Division of Waste
Management, Underground Storage Tank Branch within seven (7) days after publication. (See
Figure A)
27
-------
6.0 Application of Groundwater Tables I and II
6.1 In every case. Groundwater Table I levels shall be applied to groundwater at or beyond
the Point of Compliance.
6.2 If Groundwater Table II levels are determined to be appropriate on site, and if
groundwater levels above those specified in Groundwater Table I are present in
encountered groundwater, a groundwater sample shall be collected at, or as close as
possible to, the hydrogeologically downgradient Point of Compliance and analyzed to
confirm that groundwater levels exceeding those specified in Groundwater Table I are
not present.
7.0 Corrective Action Measures
If allowable groundwater levels are exceeded within or beyond the Point of Compliance, the
following actions shall be taken:
• A Site Investigation shall be performed in accordance with 401 KAR 42:060;
and
• A Corrective Action Plan shall be developed in accordance with 401 KAR
42:060.
28
-------
FIGURE A
PUBLIC NOTICE
(Example)
Proposed Closure of Underground Storage Tanks
For
Facility Name
The Kentucky Natural Resources and Environmental Protection Cabinet's Division of Waste
Management is proposing to approve the closure of petroleum underground storage tanks for
Site/Facilitv Name located at Street Address. Citv/Countv The
tanks have been closed in place at/removed from the site. Name , the
Owner/Operator, has submitted documents requesting permanent closure of the UST system at the
facility. A Closure Assessment Report and Closure Classification Guide have been completed. Petroleum
hydrocarbon levels in the soil and groundwater are below allowable levels for a Class Class number.
Class III Table or Class IV Matrix Table. Groundwater Table for the site according to the Underground
Storage Tank System Facility Classification Outline in 401 KAR 42:080. The Cabinet proposes to
accept the hydrocarbon levels that remain in the groundwater. This tentative decision is based on a
thorough review of site conditions and regulatory requirements.
Copies of reports and related documents are available at the Division of Waste Management's
Frankfort office. To review the documents, contact the UST Records Custodian at 1-800-928-4273
or (502) 564-6716, ext. 647. Hearing- and speech-impaired persons can contact the agency by using
the Kentucky Relay Service, a toll-free telecommunication device for the deaf (TDD). For voice to TDD,
call 1-800-648-6057. For TDD to voice, call 1-800-648-6056. Upon request, the documents can be
provided in alternative formats to individuals with disabilities.
Anyone wishing to comment on the Cabinet's tentative decision, must do so by Date (30
davs from date of publication) . the close of the 30-day public comment period. Comments should
be submitted to the Division of Waste Management, Underground Storage Tank Branch, 14 Reilly Road,
Frankfort, KY 40601.
29
-------
GROUNDWATER TABLE I
ALLOWABLE GROUNDWATER LEVELS
BTEX

BENZENE
0.005
PPM
TOLUENE
1.0
PPM
ETHYLBENZENE
0.7
PPM
XYLENE
10.0
PPM
PAH

cPAH:
0.005
PPM
nPAH:
3.0
PPM
NAPHTHALENE:
0.3
PPM
Total Lead

0.015 PPM or Established Background
GROUNDWATER TABLE II
ALLOWABLE GROUNDWATER LEVELS
BTEX

BENZENE
0.4
PPM
TOLUENE
9.4
PPM
ETHYLBENZENE
2.4
PPM
XYLENE
10.0
PPM
PAH

cPAH:
0.005
PPM
nPAH:
3.0
PPM
NAPHTHALENE:
0.3
PPM
Total Lead
0.015 PPM or Established Background
BTEX: Benzene, Toluene, Ethylbenzene, and Xylene(total)
PAH: Polynuclear Aromatic Hydrocarbons
cPAH: Allowable Level Individually for Benzo(a)anthracene, Benzo(a)pyrene,
Benzo(b)fluoranthene, Benzo(k)fluoranthene, Chrysene, Dibenzo(a,h)anthracene,
ldeno(1,2,3-cd)pyrene
nPAH: Allowable Level Individually for Acenaphthene, Acenaphthylene, Anthracene,
Benzo(ghi)perylene, Fluoranthene, Fluorene, Phenanthrene, and Pyrene.
PPM: mg/L - Part Per Million
NOTE: Refer to the October 1995 Underground Storage Tank System Closure Outline for details
concerning analytical requirements and procedures for establishing background.
30
-------
CLASSIFICATION GUIDE
DEP6053/10/95
'nstructions: Circle the correct answer to each applicable question in both the soil and groundwater guides, complete
pages 5, 6, and 7, and submit with the Closure Assessment Report (CAR) Form.
SOIL
This guide shall be used to place each facility into a particular class, and to establish allowable soil levels.
1.
Are three (3) tanks or fewer present at the facility?
Yes
No
Proceed to question No. 2.
Proceed to question No. 17.
2.
Have there been more than three (3) regulated underground storage tanks
on site since December 22, 1988?
Yes
No
Proceed to question No. 17.
Proceed to question No. 3.
3.
Is the combined total capacity of all tanks present on site since December
22, 1988 less than 6000 gallons?
Yes
No
Proceed to question No. 4.
Proceed to question No. 17.
4.
Were the tanks taken out of service and empty prior to December 22,
1988? (See Section 1.3, page 2)
Yes
No
Proceed to question No. 5.
Proceed to question No. 17.
5:
Is permanent closure to be performed by closure in place?
Yes
No
Proceed to question No. 20.
Proceed to question No. 6.
6.
Are any domestic use wells, springs, cisterns, or well head protection areas
located within a 100 meter (328 feet) radius from the tank pit?
Yes
No
Proceed to question No. 30.
Proceed to question No. 7.
7.
Are any environmentally sensitive features located within a 100 meter
(328 feet) radius from the tank pit?
Yes
No
Proceed to question No. 8.
Proceed to question No. 9.
8.
Are environmentally sensitive features, located within a 100 meter (328
feet) radius from the tank pit, hydrogeologically upgradient from the tank
pit?
Yes
No
Proceed to question No. 9.
Proceed to question No. 21.
9.
Was clear evidence of a release observed within the excavation zone or
excavated materials? (See Section 1.7, page 2)
Yes
No
Proceed to question No. 17.
Proceed to question No. 10.
10.
Has surficial evidence of a subsurface release been observed outside of the
excavation within a 1 50 meter (492 feet) radius from the tank pit?
Yes
No
Proceed to question No. 32.
Proceed to question No. 11.
11.
Was water encountered within the excavation zone?
Yes
No
Proceed to question No. 12.
Proceed to question No. 15.
12.
Was evidence of a release observed in the water encountered within the
excavation zone? (See Section 2.0, page 2)
Yes
No
Proceed to question No. 13.
Proceed to question No. 15.
13.
Does the water encountered within the excavation zone meet the definition
of groundwater as defined in 401 KAR 42:005?
Yes
No
Proceed to question No. 14.
Proceed to question No. 15. (This
water shall be disposed of properly.)
14.
Does analysis of samples collected from the groundwater within the
excavation zone indicate levels above those specified in Groundwater Table
1? (See page 31)
Yes
No
Closure under Class I disallowed.
Proceed to question No. 20.
Proceed to question No. 15.
15.
Was potential evidence of a release observed in the excavated materials
(unidentified staining, odors etc.)?
Yes
No
Proceed to question No. 16.
Facility meets the requirements for
closure under Class I.
16.
Does analysis of samples collected from the excavated materials indicate
levels above those specified in Soil Table 3?
Yes
No
Proceed to question No. 17.
Facility meets the requirements for
closure under Class I.
17.
Have external leak detection devices been in operation over the life of the
UST system? (See Section 1.2, page 5)
Yes
No
Proceed to question No. 18.
Proceed to question No. 20.
18.
Have leaks or releases been detected over the life of the system?
Yes
No
Proceed to question No. 20.
Proceed to question No. 19.
ntinued on next page.
1
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CLASSIFICATION GUIDE (CONTINUED) DEP6053/10/95
SOIL
19.
Was evidence of a release observed within the excavation zone? (See
Section 1.4, page 5)
Yes
No
Proceed to question No. 20. |
Facility meets the requirements for 1
closure under Class II. |
20.
Are any domestic use wells, springs, cisterns, or well head protection areas
located within a 100 meter (328 feet) radius from the tank pit?
Yes
No
Proceed to question No. 32.
Proceed to question No. 21.
21.
Are any environmentally sensitive features located within a 50 meter (164
feet) radius from the tank pit?
Yes
No
Proceed to question No. 22.
Proceed to question No. 23.
22.
Have environmentally sensitive features, located within a 50 meter (164
feet) radius from the tank pit, been documented to be hydrogeologically
upgradient from the tank pit?
Yes
No
Proceed to question No. 23.
Proceed to question No. 32.
23.
Has surficial evidence of a subsurface release been observed outside of the
excavation within a 150 meter (492 feet) radius from the tank pit?
Yes
No
Proceed to question No. 32.
Proceed to question No. 24.
24.
Have fumes been detected inside buildings within a 150 meter (492 feet)
radius from the tank pit?
Yes
No
Proceed to question No. 32.
Proceed to question No. 25.
25.
Are any of the following conditions present? Circle the preceding number of
those that apply.
Yes
No
Proceed to question No. 26.
Proceed to question No. 28.
1
The facility is located in a carbonate bedrock setting, as determined through
a geologic quadrangle map analysis. (See page 15, Section 5.1 for a detailed
description of this geologic setting.)

2
Domestic use wells, springs, cisterns, or well head protection areas are
located within a 100 to 300 meter (328 feet to 984 feet) radius from the
tank pit.

3
Environmentally sensitive features are located within a 50 to 150 meter
(164 feet to 492 feet) radius from the tank pit and are hydrogeologically
downgradient from the tank pit.

4
Groundwater is encountered in the tank pit or piping trench excavation, or
borings as required for closure in place and active systems.

5
Groundwater is not encountered within the tank pit or piping trench
excavation, or borings as required for closure in place and active systems,
and documentation has not been submitted to demonstrate that
groundwater is at a depth of more than 30 feet from the surface.

6
Water supply lines, sanitary sewer lines, storm sewer lines, or telephone
man-vaults are located within a 50 meter (164 feet) radius from the tank
pit.

26.
Has consent from all off-site affected property owners been obtained and
documentation submitted in order to disregard the Point of Compliance
requirements in Class III?
Yes
No
Soil on and off site shall be remediated
to Class III Soil Table 1 levels.
Proceed to question No. 27.
27.
Does analysis of soil samples collected from the excavation zone indicate
levels above those specified in Class III Soil Table 1 ?
Yes
No
Soils within the Point of Compliance
shall be remediated to achieve Class III
Soil Table 1 levels. Any soil levels above
Class III Soil Table 1 levels which are
outside of the Point of Compliance shall
be remediated to the appropriate Class
IV Soil Matrix Table levels. (See Section
6.2, p. 9)
Facility meets the requirements for
Class III closure.
Continued on next page.
2
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CLASSIFICATION GUIDE (CONTINUED) DEP6053/10/95
SOIL
la.
Have all of the following been established?
Domestic use wells, springs, cisterns, or well head protection areas are
located beyond a 300 meter (984 feet) radius from the tank pit.
Environmentally sensitive features are located beyond a 150 meter (492
feet) radius from the tank pit, or are sufficiently determined to be
hydrogeologically upgradient from the tank pit.
Site-specific information is submitted to demonstrate that groundwater is at
a depth of more than 30 feet from the surface.
Soil samples collected at the nearest hydrogeologically downgradient Point
of Compliance, indicate levels below those specified in Class III Soil Table 1.
Yes
No
Proceed to question No. 29.
Proceed to question No. 26.
29.
Has consent from all off-site affected property owners been obtained and
documentation submitted in order to disregard the Point of Compliance
requirements in Class III?
Yes
No
Soil on and off site shall be remediated
to Class III Soil Table 2 levels.
Proceed to question No. 30.
30.
Does analysis of soil samples collected at the nearest hydrogeologically
downgradient Point of Compliance indicate levels below those specified in
Class III Soil Table 1. (See Section 8.0, page 10)
Yes
No
Proceed to question No. 31.
Soils within the Point of Compliance
shall be remediated to achieve Class III
Soil Table 1 standards. Any levels in soil
above Class III Soil Table 1 which are
outside of the Point of Compliance shall
be remediated to the appropriate Class
IV Soil Matrix Table standards. (See
Section 9.2, p. 10)
31.
Does analysis of soil samples collected from the excavation zone indicate
levels above those specified in Class III Soil Table 2?
Yes
No
Soils shall be remediated to achieve
Class III Soil Table 2 standards. (See
note below)
Facility meets the requirements for
Class III closure.
32.
Has consent from all off-site affected property owners been obtained and
documentation submitted in order to disregard the Point of Compliance
requirements in Class IV?
Yes
No
Soil on and off site shall be remediated
to achieve the appropriate Class IV Soil
Matrix Table levels.
Proceed to question No. 33.
33.
Do the prescribed Class IV Soil Matrix Table levels exceed those specified in
Class III Soil Table 1 ?
Yes
No
Proceed to question No. 34.
Proceed to question No. 35.
34.
Are levels exceeding those specified in Class III Soil Table 1 present at the
Point of Compliance?
Yes
No
Soils within the Point of Compliance
shall be remediated to the applicable
Class IV Soil Matrix Table levels. Soils
outside of the Point of Compliance shall
be remediated to the appropriate Class
IV Soil Matrix Table levels (See Section
8.0, p. 17)
Proceed to question No. 35.
35.
Does analysis of soil samples collected from the excavation zone indicate
levels above those specified in the applicable Class IV Soil Matrix Table?
Yes
No
Soils within the Point of Compliance
shall be remediated to achieve the
appropriate Class IV Soil Matrix Table
standards.
Facility meets the requirements for
Class IV closure.
NOTE: Residual soil and/or groundwater levels above those specified in the applicable table will be allowed for closure
only if a supplemental risk assessment, permit as a residual landfill, or monitor only plan is submitted and
accepted by the Division in the form of a Corrective Action Plan.
3
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GROUNDWATER GUIDE (FOR FACILITIES IN CLASS III AND CLASS IV) DEP6053/10/95
This guide shall be used to establish allowable levels in groundwater for facilities in Class III or Class IV.
1.
Was any water encountered within the excavation zone or required borings?
Yes
No
Proceed to question No. 3.
Proceed to question No. 2.
2.
Was any water encountered within the assessment one (1) meter below the
bottom of a dry excavation? (See Section 3.2, page 8 or Section 3.2, page
14)
Yes
No
Proceed to question No. 3.
Proceed to question No. 4.
3.
Does this water meet the definition of groundwater as defined in 401 KAR
42:005?
Yes
No
Proceed to question No. 7.
Proceed to question No. 4.
4.
Was bedrock encountered within the excavation zone which prevented the
collection of a composite soil sample from the bottom of the excavation?
Yes
No
Proceed to question No. 6.
Proceed to question No. 5.
5.
Were allowable soil levels achieved prior to reaching the soil/bedrock
interface?
Yes
No
Facility is not required to assess
groundwater.
Proceed to question No. 6.
6.
Were groundwater samples collected in the hydrogeologically downgradient
area most likely to be effected by a release from the UST system?
Yes
No
Proceed to question No. 7.
Provide documentation to explain failure
to assess groundwater.
7.
Is the facility serviced by a public water supply?
Yes
No
Proceed to question No. 8.
Proceed to question No. 9.
8.
Has groundwater been encountered at, or less than, 3.0 meters from the
ground surface?
Yes
No
Groundwater shall be remediated to
achieve Groundwater Table I levels.
Proceed to question No. 10.
9.
Is the affected groundwater a current or potential source for domestic use?
(See Section 4.3, page 27)
Yes
No
Proceed to question No. 11.
Proceed to question No. 10.
10.
Are domestic use wells, springs, cisterns, or well head protection areas
located within a 300 meter (984 feet) radius from the tank pit?
Yes
No
Proceed to question No. 11.
Proceed to question No. 12.
11.
Does analysis of groundwater samples indicate levels above those specified
in Groundwater Table I?
Yes
No
Groundwater shall be remediated to
achieve Groundwater Table I levels
No further assessment of groundwater
is necessary.
12.
Does analysis of groundwater samples indicate levels above those specified
in Groundwater Table II?
Yes
No
Proceed to question No. 13.
No further assessment of groundwater
is necessary.
13.
Were groundwater samples collected in a hydrogeologically downgradient
direction from the tank pit at, or as close as possible to, the Point of
Compliance?
Yes
No
Proceed to question No. 14.
Provide documentation to explain failure
to assess groundwater.
14.
Does analysis of the hydrogeologically downgradient groundwater indicate
levels below those specified in Groundwater Table I?
Yes
No
Groundwater shall be remediated to
Groundwater Table II levels within the
Point of compliance.
Groundwater shall be remediated to
Groundwater Table II levels within the
Point of Compliance, and Groundwater
Table I levels outside of the Point of
Compliance.
NOTE:
Residual soil and/or groundwater levels above those specified in the applic
able table will be allowed for closure
only if a supplemental risk assessment, permit as a residual landfill, or monitor only plan is submitted and
accepted by the Division in the form of a Corrective Action Plan.
4
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VERIFICATION OF FACILITY CLASSIFICATION
DEP6053/10/95
WNER NAME:
FACILITY NAME:
FACILITY UST ID NUMBER:
I CERTIFY THAT THIS FACILITY MEETS THE CRITERIA TO CLOSE UNDER:
(CHECK APPLICABLE CLASS)
.CLASS I
. CLASS II
CLASS III
CLASS IV
THIS FACILITY HAS RESIDUAL LEVELS IN EXCESS OF THOSE SPECIFIED IN THE APPLICABLE SOIL OR GROUNDWATER TABLE(S).
(CHECK APPROPRIATE RESPONSE)
YES
NO
ERTIFY THAT, THROUGH AN ACCURATE COMPLETION OF THE CLASSIFICATION GUIDE, THE ALLOWABLE SOIL LEVELS WITHIN THE POINT
COMPLIANCE FOR THIS FACILITY ARE SPECIFIED IN:
(CHECK APPLICABLE TABLE)
. CLASS III SOIL TABLE 1
. CLASS III SOIL TABLE 2
. CLASS IV SOIL MATRIX TABLE I (FILL IN BLANKS)
SOIL TYPE:
DEPTH TO GROUNDWATER:.
DISTANCE (0-100, 100-300, OR >300):.
. CLASS IV SOIL MATRIX TABLE II (FILL IN BLANKS)
SOIL TYPE:
DEPTH TO GROUNDWATER: ,
DISTANCE (0-100, 100-300, OR >300):
. CLASS IV SOIL MATRIX TABLE III (FILL IN BLANKS)
SOIL TYPE:
DEPTH TO GROUNDWATER:
DISTANCE (0-100, 100-300,C OR >300):
. DOES NOT APPLY (CLASS I OR CLASS II)
5
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DEP6053/10/95
THIS FACILITY HAS OBTAINED WRITTEN CONSENT FROM ALL OFF-SITE AFFECTED PROPERTY OWNERS TO DISREGARD THE POINT OF
COMPLIANCE REQUIREMENTS. (CHECK APPROPRIATE RESPONSE)
YES
NO
I CERTIFY THAT, THROUGH AN ACCURATE COMPLETION OF THE CLASSIFICATION GUIDE, THE ALLOWABLE SOIL LEVELS OUTSIDE OF THE
POINT OF COMPLIANCE FOR THIS FACILITY ARE SPECIFIED IN:
(CHECK APPLICABLE TABLE)
CLASS III TABLE 1
CLASS III TABLE 2
CLASS IV SOIL MATRIX TABLE I (FILL IN BLANKS)
SOIL TYPE: , DEPTH TO GROUNDWATER: .
CLASS IV SOIL MATRIX TABLE II (FILL IN BLANKS)
SOIL TYPE: , DEPTH TO GROUNDWATER: .
CLASS IV SOIL MATRIX TABLE III (FILL IN BLANKS)
SOIL TYPE: , DEPTH TO GROUNDWATER: .
DOES NOT APPLY, SOIL LEVELS EXCEEDING THOSE ALLOWED ARE NOT PRESENT AT OR BEYOND THE POINT OF COMPLIANCE
I CERTIFY THAT, THROUGH AN ACCURATE COMPLETION OF THE GROUNDWATER GUIDE, THE ALLOWABLE LEVELS IN GROUNDWATER WITh.
THE POINT OF COMPLIANCE FOR THIS FACILITY ARE SPECIFIED IN:
GROUNDWATER TABLE I
GROUNDWATER TABLE II
DOES NOT APPLY (GROUNDWATER ASSESSMENT NOT REQUIRED)
LEVELS EXCEEDING THOSE SPECIFIED IN GROUNDWATER TABLE I ARE:(CHECK APPLICABLE RESPONSE)
PRESENT AT OR BEYOND THE POINT OF COMPLIANCE
NOT PRESENT AT OR BEYOND THE POINT OF COMPLIANCE
DOES NOT APPLY (GROUNDWATER ASSESSMENT NOT REQUIRED)
I CERTIFY THAT THE SURFACE WATER STANDARDS SPECIFIED IN 401 KAR 5:031 HAVE BEEN ADDRESSED.
CONTINUED ON NEXT PAGE FOR APPROPRIATE SIGNATURES
6
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DEP6053/10/95
THE UNDERSIGNED, FIRST BEING DULY SWORN, STATES THAT I HAVE PERSONALLY EXAMINED AND AM FAMILIAR WITH THE INFORMATION
SUBMITTED IN THIS AND ALL ATTACHED DOCUMENTS, AND THAT BASED ON MY INQUIRY OF THOSE INDIVIDUALS RESPONSIBLE FOR
STAINING THE INFORMATION, I BELIEVE THE SUBMITTED INFORMATION IS TRUE, ACCURATE AND COMPLETE. THE UNDERSIGNED FURTHER
KNOWLEDGES THAT KRS 224.99-010 PROVIDES PENALTIES FOR SUBMITTING FALSE INFORMATION.
COMPANY NAME
NAME OF INDIVIDUAL WHOS SIGNATURE APPEARS BELOW
SIGNATURE'
DATE OF SIGNATURE
SUBSCRIBED AND SWORN TO BEFORE ME BY
THIS THE DAY OF ,19 .
NOTARY PUBLIC
MY COMMISSION EXPIRES
LOCATION OF COMMISSION!?)
'NOTE: IF AN INDIVIDUAL SIGNING THIS OTHER THAN PRESIDENT OR SECRETARY OF A CORPORATION, ATTACH A NOTARIZED COPY OF
POWER OF ATTORNEY, OR RESOLUTION OF BOARD OF DIRECTORS WHICH GRANTS INDIVIDUAL THE LEGAL AUTHORITY TO
REPRESENT THE COMPANY. (DOES NOT APPLY TO A SINGLE PROPRIETORSHIP OR PARTNERSHIP).
UNDER THE REQUIREMENTS OF KRS CHAPTER 322 AND 322A, THIS VERIFICATION OF FACILITY CLASSIFICATION SHALL BE SIGNED BY A
PROFESSIONAL ENGINEER (P.E.) REGISTERED WITH KENTUCKY BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND
SURVEYORS, OR A PROFESSIONAL GEOLOGIST
-------
AFFECTED PR0PER1 JVNER CONSENT FORM 6054/10/95
I, (consenting property owner) owning property at (property location),
hereby consent to allow (UST owner/operator) to remediate and/or close the underground storage tank system(s) located at
(UST facility location), UST ID# , in conformance with 401 KAR Chapter 42 without consideration of soil
contaminant levels at the property boundary of the UST facility. In so giving my consent, I understand that elevated levels of soil contamination may be left on my property. I understand that these levels
of residual soil contamination are based upon the surrounding environmentally sensitive features, domestic use wells, springs, cisterns, and well head protection areas as they presently exist and that
those levels have been determined to be protective of human health and the environment by the study performed pursuant to KRS 224.60-137. I further understand that by signing this consent form,
I may be allowing contamination that will not be protective of environmentally sensitive features, domestic use wells, springs, cisterns, or well head protection areas that may be added to my property
in the future.
I also understand that the following levels of contamination may remain in soils arthe UST facility:
ALLOWABLE
SOIL LEVELS
(PPM)
B
T
E
X
Ch
B(a)A
cPAH
nPAH
NAP
LEAD

BTEX: Benzene, Toluene, Ethylbenzene, and Xylene(total)
PAH: Polynuclear Aromatic Hydrocarbons
Ch: Allowable level individually for Chrysene
B(a)A: Allowable level individually for Benzo(a)anthracene
cPAH: Allowable level individually for Benzo(a)pyrene, Benzo(b)fluoranthene, Benzo(k)f1uoranthene, Dibenzo(a,h)anthracene, and ldeno(1,2,3-cd)pyrene
nPAH: Allowable Level Individually for Acenaphthene, Acenaphthylene, Anthracene, Benzo(ghi)perylene, Fluoranthene, Fluorene, Phenanthrene, and Pyrene.
NAP: Allowable Level Individually for Naphthalene
PPM: mg/kg - Part Per Million
I further understand that consideration of soil contaminant levels at the property boundary of the UST facility could have resulted in lower levels of soil
contamination on my property.
IN WITNESS WHEREOF, I hereby execute and deliver this consent effective as of this day of , 19 .
. (Consenting Party)
Subscribed and sworn to before me by_
. this the
_day of_
19_
, (NOTARY PUBLIC)
My Commission Expires:.
-------
Effective Date - November 14, 1995
401 KAR 42:090. Financial Responsibility.
RELATES TO: KRS 224.10 and 224.60, 40 CFR Part 280 Subpart H and Part 281,
and 42 USC 6991c
STATUTORY AUTHORITY: KRS 224.10-100 and 224.60-105, 40 CFR Part 280
Subpart H and Part 281, and 42 USC 6991c
NECESSITY AND FUNCTION: KRS 224.10-100 requires the Natural Resources and
Environmental Protection Cabinet to develop and conduct programs that provide for the
prevention, abatement, and control of contaminants that may threaten the environment. KRS
224.60-105(2) requires the Cabinet to regulate underground storage tank (UST) systems by
requiring notification, minimum construction and performance standards, leak detection, record
keeping, release reporting, corrective action, closure, financial responsibility, and other standards
to protect public health and the environment. KRS 224.60-105(3) requires the Cabinet to establish
a regulatory program that implements federal requirements for UST systems. This chapter
identifies requirements for UST systems. This administrative regulation establishes requirements
for demonstrating financial responsibility for corrective action and for compensation of third
parties for bodily injury and property damage caused by sudden and nonsudden accidental releases
arising from the operation of UST systems containing petroleum.
Section 1. Adoption of Federal Regulations. The requirements for demonstrating
financial responsibility for corrective action and for compensation of third parties for bodily
injury and property damage caused by sudden and nonsudden accidental releases arising from the
operation of UST systems containing petroleum are governed by 40 CFR Part 280 Subpart H
(1994).
401 KAR 42:090 - 1
-------
40 CFR 280
Subpart H
-------
Subpart H—Financial
Responsibility
Source: 53 FR 43370, Oct. 26, 1988, unless
otherwise noted.
§ 280.90 Applicability.
(a) This subpart applies to owners
and operators of all petroleum under-
ground storage tank (UST) systems ex-
cept as otherwise provided in this sec-
tion.
(b) Owners and operators of petro-
leum UST systems are subject to these
requirements if they are in operation
on or after the date for compliance es-
tablished in §280.91.
(c) State and Federal government en-
tities whose debts and liabilities are
the debts and liabilities of a state or
the United States are exempt from the
requirements of this subpart.
(d) The requirements of this subpart
do not apply to owners and operators of
any UST system described in §280.10 (b)
or (c).
(e) If the owner and operator of a pe-
troleum underground storage tank are
separate persons, only one person is re-
quired to demonstrate financial re-
sponsibility; however, both parties are
liable in event of noncompliance. Re-
gardless of which party complies, the
date set for compliance at a particular
facility is determined by the character-
istics of the owner as set forth in
§280.91.
§280.91 Compliance dates.
Owners of petroleum underground
storage tanks are required to comply
with the requirements of this subpart
by the following dates:
(a) All petroleum marketing firms
owning 1,000 or more USTs and all
other UST owners that report a tan-
gible net worth of $20 million or more
to the U.S. Securities and Exchange
Commission (SEC), Dun and Brad-
-------
§280.92
40 CFR Ch. I (7-1 -94 Edition)
street, the Energy Information Admin-
istration, or the Rural Electrification
Administration; January 24, 1989, ex-
cept that compliance with § 280.94(b) is
required by: July 24, 1989.
(b) All petroleum marketing firms
owning 100-999 USTs; October 26, 1989.
(c) All petroleum marketing firms
owning 13-99 USTs at more than one fa-
cility; April 26, 1991.
(d) All petroleum UST owners not de-
scribed in paragraphs (a), (b), or (c) of
this section, excluding local govern-
ment entities; December 31, 1993.
(e) All local government entities (in-
cluding Indian tribes) not included in
paragraph (f) of this section; February
18, 1994.
(f) Indian tribes that own USTs on
Indian lands which meet the applicable
technical requirements of this part;
December 31,1998.
[53 FR 43370, Oct. 26, 1988, as amended at 54
FR 5452, Feb. 3, 1989; 55 FR 18567, May 2, 1990;
55 FR 46025, Oct. 31, 1990; 56 FR 66373, Dec. 23.
1991; 59 FR 9607, Feb. 28,1994}
§280.92 Definition of terms.
When used in this subpart, the fol-
lowing terms shall have the meanings
given below;
Accidental release means any sudden
or nonsudden release of petroleum from
an underground storage tank that re-
sults In a need for corrective action
and/or compensation for bodily injury
or property damage neither expected
nor Intended by the tank owner or op-
erator.
Bodily injury shall have the meaning
given to this term by applicable state
law; however, this term shall not in-
clude those liabilities which, consist-
ent with standard Insurance industry
practices, are excluded from coverage
in liability insurance policies for bod-
ily injury.
Chief Financial Officer, in the case of
local government owners and opera-
tors, means the individual with the
overall authority and responsibility for
the collection, disbursement, and use
of funds by the local government.
Controlling interest means direct own-
ership of at least 50 percent of the vot-
ing stock of another entity.
Director of the Implementing Agency
means the EPA Regional Adminis-
trator, or, in the case of a state with a
program approved under section 9004,
the Director of the designated state or
local agency responsible for carrying
out an approved UST program.
Financial reporting year means the
latest consecutive twelve-month period
for which any of the following reports
used to support a financial test is pre-
pared;
(1) a 10-K report submitted to the
SEC;
(2) an annual report of tangible net
worth submitted to Dun and Brad-
street; or
(3) annual reports submitted to the
Energy Information Administration or
the Rural Electrification Administra-
tion.
"Financial reporting year" may thus
comprise a fiscal or a calendar year pe-
riod.
Legal defense cost is any expense that
an owner or operator or provider of fi-
nancial assurance incurs in defending
against claims or actions brought,
(1) By EPA or a state to require cor-
rective action or to recover the costs of
corrective action;
(2) By or on behalf of a third party
for bodily injury or property damage
caused by an accidental release; or
(3) By any person to enforce the
terms of a financial assurance mecha-
nism.
Local government shall have the
meaning given this term by applicable
state law and includes Indian tribes.
The term is generally intended to in-
clude: (1) Counties, municipalities,
townships, separately chartered and
operated special districts (including
local government public transit sys-
tems and redevelopment authorities),
and independent school districts au-
thorized as governmental bodies by
state charter or constitution; and (2)
Special districts and independent
school districts established by coun-
ties, municipalities, townships, and
other general purpose governments to
provide essential services.
Occurrence means an accident, in-
cluding continuous or repeated expo-
sure to conditions, which results in a
release from an underground storage
tank.
Note: This definition Is intended to assist
in the understanding of these regulations
and is not intended either to limit the mean-
-------
Environmental Protection Agency
§280.93
ing of "occurrence" in a way'that conflicts
with standard insurance usage or to prevent
the use of other standard insurance terms in
place of "occurrence."
Owner or operator, when the owner or
operator axe separate parties, refers to
the party that is obtaining or has ob-
tained financial assurances.
Petroleum marketing facilities include
all facilities at which petroleum is pro-
duced or refined and all facilities from
which petroleum is sold or transferred
to other petroleum marketers or to the
public.
Petroleum marketing firms are all firms
owning petroleum marketing facilities.
Firms owning other types of facilities
with USTs as well as petroleum mar-
keting facilities are considered to be
petroleum marketing firms.
Property damage shall have the mean-
ing given this term by applicable state
law. This term shall not include those
liabilities which, consistent with
standard insurance industry practices,
are excluded from coverage in liability
insurance policies for property damage.
However, such exclusions for property
damage shall not include corrective ac-
tion associated with releases from
tanks which are covered by the policy.
Provider of financial assurance means
an entity that provides financial assur-
ance to an owner or operator of an un-
derground storage tank through one of
the mechanisms listed in §§280.95-
280.103, including a guarantor, insurer,
risk retention group, surety, issuer of a
letter of credit, issuer of a state-re-
quired mechanism, or a state.
Substantial business relationship means
the extent of a business relationship
necessary under applicable state law to
make a guarantee contract issued inci-
dent to that relationship valid and en-
forceable. A guarantee contract is is-
sued "incident to that relationship" if
it arises from and depends on existing
economic transactions between the
guarantor and the owner or operator.
Substantial governmental relationship
means the extent of a governmental re-
lationship necessary under applicable
state law to make an added guarantee
contract issued incident to that rela-
tionship valid and enforceable. A guar-
antee contract is issued "incident to
that relationship" if it arises from a
clear commonality of interest in the
event of an UST release such as coter-
minous boundaries, overlapping con-
stituencies, common ground-water aq-
uifer, or other relationship other than
monetary compensation that provides
a motivation for the guarantor to pro-
vide a guarantee.
Tangible net worth means the tangible
assets that remain after deducting li-
abilities; such assets do not include in-
tangibles such as goodwill and rights
to patents or royalties. For purposes of
this definition, "assets" means all ex-
isting and all probable future economic
benefits obtained or controlled by a
particular entity as a result of past
transactions.
Termination under § 280.97(b)(1) and
§ 280.97(b)(2) means only those changes
that could result in a gap in coverage
as where the insured has not obtained
substitute coverage or has obtained
substitute coverage with a different
retroactive date than the retroactive
date of the original policy.
[53 FR 43370, Oct. 26, 1988, as amended at 54
FR 47081, Nov. 9, 1989; 58 FR 9050. Feb. 18.
1993]
§280.93 Amount and scope of required
financial responsibility.
(a) Owners or operators of petroleum
underground storage tanks must dem-
onstrate financial responsibility for
taking corrective action and for com-
pensating third parties for bodily in-
jury and property damage caused by
accidental releases arising from the op-
eration of petroleum underground stor-
age tanks in at least the following per-
occurrence amounts:
(1) For owners or operators of petro-
leum underground storage tanks that
are located at petroleum marketing fa-
cilities, or that handle an average of
more than 10,000 gallons of petroleum
per month based on annual throughput
for the previous calendar year; $1 mil-
lion.
(2) For all other owners or operators
of petroleum underground storage
tanks; $500,000.
(b) Owners or operators of petroleum
underground storage tanks must dem-
onstrate financial responsibility for
taking corrective action and for com-
pensating third parties for bodily in-
jury and property damage caused by
accidental releases arising from the op-
-------
§280.94
40 CFR Ch. I (7-1-94 Edition)
er&tlon of petroleum underground stor-
age tanks In at least the following an-
nual aggregate amounts:
(1) For owners or operators of 1 to 100
petroleum underground storage tanks,
$1 million; and
(2) For owners or operators of 101 or
more petroleum underground storage
tanks, $2 million.
(c) For the purposes of paragraphs (b)
and (f) of this section, only, "a petro-
leum underground storage tank"
means a single containment unit and
does not mean combinations, of single
containment units.
(d) Except as provided in paragraph
(e) of this section, if the owner or oper-
ator uses separate mechanisms or sepa-
rate combinations of mechanisms to
demonstrate financial responsibility
for:
(1) Taking corrective action;
(2) Compensating third parties for
bodily injury and property damage
caused by sudden accidental releases;
or
(3) Compensating third parties for
bodily Injury and property damage
caused by nonsudden accidental re-
leases, the amount of assurance pro-
vided by each mechanism or combina-
tion of mechanisms must be in the full
amount specified in paragraphs (a) and
(b) of this section.
(e) If an owner or operator uses sepa-
rate mechanisms or separate combina-
tions of mechanisms to demonstrate fi-
nancial responsibility for different pe-
troleum underground storage tanks,
the annual aggregate required shall be
based on the number of tanks covered
by each such separate mechanism or
combination of mechanisms.
(D Owners or operators shall review
the amount of aggregate assurance pro-
vided whenever additional petroleum
underground storage tanks axe ac-
quired or installed. If the number of pe-
troleum underground storage tanks for
which assurance must be provided ex-
ceeds 100, the owner or operator shall
demonstrate financial responsibility in
the amount of at least S2 million of an-
nual aggregate assurance by the anni-
versary of the date on which the mech-
anism demonstrating financial respon-
sibility became effective. If assurance
is being demonstrated by a combina-
tion of mechanisms, the owner or oper-
ator shall demonstrate financial re-
sponsibility in the amount of at least
$2 million of annual aggregate assur-
ance by the first-occurring effective
date anniversary of any one of the
mechanisms combined (other than a fi-
nancial test or guarantee) to provide
assurance.
(g) The amounts of assurance re-
quired under this section exclude legal
defense costs.
(h) The required per-occurrence and
Annim-] aggregate coverage amounts do
not in any way limit the liability of
the owner or operator.
§ 280.94 Allowable mechanisms and
combinations of mechanisms.
(a) Subject to the limitations of
paragraphs (b) and (c) of this section,
(1) An owner or operator. Including a
local government owner or operator,
may use any one or combination of the
mechanisms listed in §§280.95 through
280.103 to demonstrate financial respon-
sibility under this subpart for one or
more underground storage tanks, and
(2) A local government owner or oper-
ator may use any one or combination
of the mechanisms listed in §§280.104
through 280.107 to demonstrate finan-
cial responsibility under this subpart
for one or more underground storage
tanks.
(b) An owner or operator may use a
guarantee under §280.96 or surety bond
under §280.98 to establish financial re-
sponsibility only if the Attomey(s)
General of the state(s) in which the un-
derground storage tanks axe located
has (have) submitted a written state-
ment to the implementing agency that
a guarantee or surety bond executed as
described in this section is a legally
valid and enforceable obligation in
that state.
(c) An owner or operator may use
self-insurance in combination with a
guarantee only if, for the purpose of
meeting the requirements of the finan-
cial test under this rule, the financial
statements of the owner or operator
axe not consolidated with the financial
statements of the guarantor.
[53 FR 43370, Oct. 26, 1988, as amended at 58
FR 9051, Feb. 18, 1993]
-------
Environmental Protection Agency
§ 280.95 Financial test of self-insur-
ance.
(a) An owner or operator, and/or
guarantor, may satisfy the require-
ments of §280.93 by passing a financial
test as specified in this section. To pass
the financial test of self-insurance, the
owner or operator, and/or guarantor
must meet the criteria of paragraph (b)
or (c) of this section based on year-end
financial statements for the latest
completed fiscal year.
(b)(1) The owner or operator, and/or
guarantor, must have a tangible net
worth of at least ten times:
(1) The total of the applicable aggre-
gate amount required by §280.93, based
on the number of underground storage
tanks for which a financial test is used
to demonstrate financial responsibility
to EPA under this section or to a state
implementing agency under a state
program approved by EPA under 40
CFR part 281;
(ii) The sum of the corrective action
cost estimates, the current closure and
post-closure care cost estimates, and
amount of liability coverage for which
a financial test is used to demonstrate
financial responsibility to EPA under
40 CFR 264.101, 264.143, 264.145, 265.143,
165.145, 264.147, and 265.147 or to a state
implementing agency under a state
program authorized by EPA under 40
CFR part 271; and
(iii) The sum of current plugging and
abandonment cost estimates for which
a financial test is used to demonstrate
financial responsibility to EPA under
40 CFR 144.63 or to a state implement-
ing agency under a state program au-
thorized by EPA under 40 CFR part 145.
(2) The owner or operator, and/or
guarantor, must have a tangible net
worth of at least $10 million.
(3) The owner or operator, and/or
guarantor, must have a letter signed
by the chief financial officer worded as
specified in paragraph (d) of this sec-
tion.
(4) The owner or operator, and/or
guarantor, must either:
(i) File financial statements annually
with the U.S. Securities and Exchange
Commission, the Energy Information
Administration, or the Rural Elec-
trification Administration; or
(ii) Report annually the firm's tan-
gible net worth to Dun and Bradstreet,
§280.95
and Dun and Bradstreet must have as-
signed the firm a financial strength
rating of 4A or 5A.
(5) The firm's year-end financial
statements, if independently audited,
cannot include an adverse auditor's
opinion, a disclaimer of opinion, or a
"going concern" qualification.
(c)(1) The owner or operator, and/or
guarantor must meet the financial test
requirements of 40 CFR 264.147(f)(1),
substituting the appropriate amounts
specified in §280.93 (b)(1) and (b)(2) for
the "amount of liability coverage"
each time specified in that section.
(2) The fiscal year-end financial
statements of the owner or operator,
and/or guarantor, must be examined by
an independent certified public ac-
countant and be accompanied by the
accountant's report of the examina-
tion.
(3) The firm's year-end financial
statements cannot include an adverse
auditor's opinion, a disclaimer of opin-
ion, or a "going concern" qualification.
(4) The owner or operator, and/or
guarantor, must have a letter signed
by the chief financial officer, worded as
specified in paragraph (d) of this sec-
tion.
(5) If the financial statements of the
owner or operator, and/or guarantor,
are not submitted annually to the U.S.
Securities and Exchange Commission,
the Energy Information Administra-
tion or the Rural Electrification Ad-
ministration, the owner or operator,
and/or guarantor, must obtain a special
report by an independent certified pub-
lic accountant stating that:
(i) He has compared the data that the
letter form the chief financial officer
specifies as having been derived from
the latest year-end financial state-
ments of the owner or operator, and/or
guarantor, with the amounts in such fi-
nancial statements; and
(ii) In connection with that compari-
son, no matters came to his attention
which caused him to believe that the
specified data should be adjusted.
(d) To demonstrate that it meets the
financial test under paragraph (b) or (c)
of this section, the chief financial offi-
cer of the owner or operator, or guar-
antor, must sign, within 120 days of the
close of each financial reporting year,
as defined by the twelve-month period
-------
§280.95
40 CFR Ch. I (7-1-94 Edition)
for which financial statements used to
support the financial test are prepared,
a letter worded exactly as follows, ex-
cept that the instructions in brackets
are to be replaced by the relevant in-
formation and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [Insert:
name and address of the owner or operator,
or guarantor]. This letter Is in support of the
use of [Insert: "the financial test of self-In-
surance," and/or "guarantee"] to dem-
onstrate financial responsibility for [Insert:
"taking corrective action" and/or "com-
pensating third parties for bodily injury and
property damage"] caused by [insert:
"suddent accidentia] releases" and/or
"nonsudden accidentia] releases"] in the
amount of at least [insert: dollar amount]
per occurrence and [Insert: dollar amount]
annual aggregate arising from operating (an)
underground storage tank(s).
Underground storage tanks at the follow-
ing facilities are assured by this financial
test or a financial test under an authorized
State program by this [Insert: "owner or op-
erator," and/or "guarantor"]: [List for each
facility: the name and address of the facility
where tanks assured by this financial test
are located, and whether tanks are assured
by this financial test or a financial test
under a State program approved under 40
CFR part 281. If separate mechanisms or
combinations of mechanisms are being used
to assure any of the tanks at this facility,
list each tank assured by this financial test
or a financial test under a State program au-
thorized under 40 CFR part 281 by the tank
identification number provided in the notifi-
cation submitted pursuant to 40 CFR 280.22
or the corresponding State requirements.]
A [insert: "financial test," and/or "guaran-
tee"] is also used by this [insert: "owner or
operator," or "guarantor"] to demonstrate
evidence of financial responsibility in the
following amounts under other EPA regula-
tions or state programs authorized by EPA
under 40 CFR parts 271 and 145:
EPA Regulations Amount
Closure (§§264.143 and 265.143) ... S
Post-Closure Care ({§264.145 and
265.145) S
Liability Coverage (§§264.147
and 265.147) $
Corrective Action (§§264.101(b)) S
Plugging and Abandonment
(§144.63) J
Closure J
Post-Closure Care $
Llabilltly Coverage $
Corrective Action S
Plugging and Abandonment $
Total S
This [insert: "owner or operator." or
"guarantor"] has not received an adverse
opinion, a disclaimer of opinion, or a "going
concern" qualification from an Independent
auditor on his financial statements for the
latest completed fiscal year.
[Fill in the information for Alternative I if
the criteria of paragraph (b) of §280.95 are
being used to demonstrate compliance with
the financial test requirements. Fill in the
Information for Alternative n if the criteria
of paragraph (c) of §280.95 are being used to
demonstrate compliance with the financial
test requirements.]
Alternative I
1. Amount of annual UST $
aggregate coverage
being assured by a fi-
nancial test, and/or
guarantee.
2. Amount of corrective ac- $
tlon. closure and post-
closure care costs, li-
ability coverage, and
plugging and abandon-
ment costs covered by a
financial test, and/or
guarantee.
3. Sum of lines 1 and 2 $
4. Total tangible assets $
5. Total liabilities [if any of $
the amount reported on
line 3 is Included in
total liabilities, you
may deduct that
amount from this line
and add that amount to
line 6],
6. Tangible net worth [sub- S
tract line 5 from line 4].
Yes No
7. Is line 6 at least $10 mil- _
lion?.
8. Is line 6 at least 10 times _
line 3?.
9. Have financial state- _
ments for the latest fis-
cal year been filed with
the Securities and Ex-
change Commission?.
10. Have financial state- _
ments for the latest fis-
cal year been filed with
the Energy Information
Administration?.
11. Have financial state- _
ments for the lastest
fiscal year been filed
with the Rural Elec-
trification Administra-
tion?.
-------
Environmental Protection Agency
§280.95
Alternative I—Continued
Alternative /—Continued
12. Has financial information
been provided to Dun
and Bradstreet, and has
Dun and Bradstreet pro-
vided a financial
strength rating of 4A or
5A? [Answer "Yes" only
if both criteria have
been met.].
Alternative II
1. Amount of annual UST
aggregate coverage
being assured by a test,
and/or guarantee.
2. Amount of corrective ac-
tion, closure and post-
closure care costs, li-
ability coverage, and
plugging and abandon-
ment costs covered by a
financial test, and/or
guarantee.
3. Sum of lines 1 and 2
4. Total tangible assets
5. Total liabilities [if any of
the amount reported on
line 3 is included in
total liabilities, you
may deduct that
amount from this line
and add that amount to
line 6],
6. Tangible net worth [sub-
tract line 5 from line 4].
7. Total assets in the U.S.
[required only if less
than 90 percent of as-
sets are located in the
U.S.].
9.
10.
11.
12.
13.
14.
Yes No
8. Is line 6 at least $10 mil- $
lion?.
Is line 6 at least 6 times
line 3?.
Are at least 90 percent of
assets located in the
U.S.? [If "No," com-
plete line 11.].
Is line 7 at least 6 times
line 3?.
[Fill in either lines 12-15 or lines 16-18:]
Current assets i
Current liabilities
Net working capital [sub-
tract line 13 from line
12].
Yes No
15. Is line 14 at least 6 times
line 3?.
16. Current bond rating of
most recent bond issue.
17. Name of rating service ....
18. Date of maturity of bond
19. Have financial state- _
ments for the latest fis-
cal year been filed with
the SEC, the Energy In-
formation Administra-
tion, or the Rural Elec-
trification Administra-
tion?.
[If "No," please attach a report from an
independent certified public accountant cer-
tifying that there are no material differences
between the data as reported in lines 4-18
above and the financial statements for the
latest fiscal year.]
[For both Alternative I and Alternative II
complete the certification with this state-
ment.]
I hereby certify that the wording of this
letter is Identical to the wording specified in
40 CFR part 280.95(d) as such regulations
were constituted on the date shown imme-
diately below.
[Signature]
[Name]
[Title]
[Date]
(e) If an owner or operator using the
test to provide financial assurance
finds that he or she no longer meets
the requirements of the financial test
based on the year-end financial state-
ments, the owner or operator must ob-
tain alternative coverage within 150
days of the end of the year for which fi-
nancial statements have been prepared.
(f) The Director of the implementing
agency may require reports of financial
condition at any time from the owner
or operator, and/or guarantor. If the
Director finds, on the basis of such re-
ports or other information, that the
owner or operator, and/or guarantor, no
longer meets the financial test require-
ments of § 280.95(b) or (c) and (d), the
owner or operator must obtain alter-
nate coverage within 30 days after noti-
fication of such a finding.
(g) If the owner or operator fails to
obtain alternate assurance within 150
days of finding that he or she no longer
meets the requirements of the finan-
cial test based on the year-end finan-
cial statements, or within 30 days of
notification by the Director of the im-
plementing agency that he or she no
longer meets the requirements of the
financial test, the owner or operator
must notify the Director of such fail-
ure within 10 days.
-------
§280.96
40 CFR Ch. I (7-1-94 Edition)
§ 280.96 Guarantee.
(a) An owner or operator may satisfy
the requirements of §280.93 by obtain-
ing a guarantee that conforms to the
requirements of this section. The guar-
antor must be:
(1) A firm that (i) possesses a control-
ling interest in the owner or operator;
(ii) possesses a controlling interest in a
firm described under paragraph (a)(l)(i)
of this section; or, (iii) is controlled
through stock ownership by a common
parent firm that possesses a control-
ling interest in the owner or operator;
or,
(2) A firm engaged in a substantial
business relationship with the owner or
operator and issuing the guarantee as
an act incident to that business rela-
tionship.
(b) Within 120 days of the close of
each financial reporting year the guar-
antor must demonstrate that it meets
the financial test criteria of §280.95
based on year-end financial statements
for the latest completed financial re-
porting year by completing the letter
from the chief financial officer de-
scribed in § 280.95(d) and must deliver
the letter to the owner or operator. If
the guarantor fails to meet the require-
ments of the financial test at the end
of any financial reporting year, within
120 days of the end of that financial re-
porting year the guarantor shall send
by certified mail, before cancellation
or nonrenewal of the guarantee, notice
to the owner or operator. If the Direc-
tor of the implementing agency noti-
fies the guarantor that he no longer
meets the requirements of the finan-
cial test of §280.95 (b) or (c) and (d), the
guarantor must notify the owner or op-
erator within 10 days of receiving such
notification from the Director. In both
cases, the guarantee will terminate no
less than 120 days after the date the
owner or operator receives the notifica-
tion, as evidenced by the return re-
ceipt. The owner or operator must ob-
tain alternative coverage as specified
in §280.110(c).
(c) The guarantee must be worded as
follows, except that instructions in
brackets are to be replaced with the
relevant information and the brackets
deleted:
Guarantee
Guarantee made this [date] by [name of
guaranteeing entity], a business entity orga-
nized under the laws of the state of [name of
state], herein referred to as guarantor, to
[the state implementing agency] and to any
and all third parties, and obligees, on behalf
of [owner or operator] of [business address].
Recitals.
(1) Guarantor meets or exceeds the finan-
cial test criteria of 40 CFR 280.95 (b) or (c)
and (d) and agrees to comply with the re-
quirements for guarantors as specified in 40
CFR 280.96(b).
(2) [Owner or operator] owns or operates
the following underground storage tank(s)
covered by this guarantee: [List the number
of tanks at each facility and the name(s) and
address(es) of the faclllty(ies) where the
tanks are located. If more than one instru-
ment is used to assure different tanks at any
one facility, for each tank covered by this in-
strument, list the tank identification num-
ber provided in the notification submitted
pursuant to 40 CFR 280.22 or the correspond-
ing state requirement, and the name and ad-
dress of the facility.] This guarantee satis-
fies 40 CFR part 280, subpart H requirements
for assuring funding for [insert: "taking cor-
rective action" and/or "compensating third
parties for bodily injury and property dam-
age caused by" either "sudden accidental re-
leases" or "nonsudden accidental releases"
or "accidental releases"; if coverage is dif-
ferent for different tanks or locations, Indi-
cate the type of coverage applicable to each
tank or location] arising from operating the
above-identified underground storage tank(s)
in the amount of [Insert dollar amount] per
occurrence and [Insert dollar amount] an-
nual aggregate.
(3) [Insert appropriate phrase: "On behalf
of our subsidiary" (if guarantor is corporate
parent of the owner or operator); "On behalf
of our affiliate" (if guarantor is a related
firm of the owner or operator); or "Incident
to our business relationship with" (if guar-
antor is providing the guarantee as an inci-
dent to a substantial business relationship
with owner or operator)] [owner or operator],
guarantor guarantees to [implementing
agency] and to any and all third parties that:
In the event that [owner or operator] fails
to provide alternative coverage within 60
days after receipt of a notice of cancellation
of this guarantee and the [Director of the
implementing agency] has determined or
suspects that a release has occurred at an
underground storage tank covered by this
guarantee, the guarantor, upon instructions
from the [Director], shall fund a standby
trust fund in accordance with the provisions
of 40 CFR 280.108, in an amount not to exceed
the coverage limits specified above.
-------
Environmental Protection Agency
§280.97
ness of insurance or eligible to provide insur-
ance as an excess or surplus lines insurer in
one or more states"].
[Signature of authorized representative of
Insurer or Risk Retention Group]
[Name of person signing]
(Title of person signing]. Authorized Rep-
resentative of [name of Insurer or Risk Re-
tention Group]
[Address of Representative]
(2) Certificate of Insurance
Name: [name of each covered location]
Address: [address of each covered location]
Policy Number:
Endorsement (if applicable):
Period of Coverage: [current policy period]
Name of [Insurer or Risk Retention Group]:
Address of [Insurer or Risk Retention
Group]:
Name of Insured:
Address of Insured:
Certification:
1. [Name of Insurer or Risk Retention
Group], [the "Insurer" or "Group"], as iden-
tified above, hereby certifies that it has is-
sued liability insurance covering the follow-
ing underground storage tank(s):
[List the number of tanks at each facility
and the name(s) and address(es) of the
facility(ies) where the tanks are located.
If more than one instrument is used to
assure different tanks at any one facil-
ity, for each tank covered by this instru-
ment, list the tank identification num-
ber provided in the notification submit-
ted pursuant to 40 CFR 280.22, or the cor-
responding state requirement, and the
name and address of the facility.]
for [insert: "taking corrective action" and/or
"compensating third parties for bodily in-
jury and property damage caused by" either
"sudden accidental releases" or "nonsudden
accidental releases" or "accidental re-
leases"; in accordance with and subject to
the limits of liability, exclusions, conditions,
and other terms of the policy; if coverage is
different for different tanks or locations, in-
dicate the type of coverage applicable to
each tank or location] arising from operat-
ing the underground storage tank(s) identi-
fied above.
The limits of liability are [insert the dollar
amount of the "each occurrence" and "an-
nual aggregate" limits of the Insurer's or
Group's liability; if the amount of coverage
is different for different types of coverage or
for different underground storage tanks or
locations, indicate the amount of coverage
for each type of coverage and/or for each un-
derground storage tank or location], exclu-
sive of legal defense costs, which are subject
to a separate limit under the policy. This
coverage is provided under [policy number].
The effective date of said policy is [date],
2. The ["Insurer" or "Group"] further cer-
tifies the following with respect to the insur-
ance described in Paragraph 1:
a. Bankruptcy or insolvency of the insured
shall not relieve the ["Insurer" or "Group"]
of Its obligations under the policy to which
this certificate applies.
b. The ["Insurer" or "Group"] is liable for
the payment of amounts within any deduct-
ible applicable to the policy to the provider
of corrective action or a damaged third-
party, with a right of reimbursement by the
insured for any such payment made by the
["Insurer" or "Group"]. This provision does
not apply with respect to that amount of any
deductible for which coverage is dem-
onstrated under another mechanism or com-
bination of mechanisms as specified in 40
CFR 280.95-280.102.
c. Whenever requested by [a Director of an
implementing agency], the ["Insurer" or
"Group"] agrees to furnish to [the Director]
a signed duplicate original of the policy and
all endorsements.
d. Cancellation or any other termination of
the insurance by the ["Insurer" or "Group"],
except for non-payment of premium or mis-
representation by the insured, will be effec-
tive only upon written notice and only after
the expiration of 60 days after a copy of such
written notice is received by the insured.
Cancellation for non-payment of premium or
misrepresentation by the insured will be ef-
fective only upon written notice and only
after expiration of a minimum of 10 days
after, a copy of such written notice is re-
ceived by the insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise
covered by the policy that are reported to
the ["Insurer" or "Group"] within six
months of the effective date of cancellation
or non-renewal of the policy except where
the new or renewed policy has the same ret-
roactive date or a retroactive date earlier
than that of the prior policy, and which arise
out of any covered occurrence that com-
menced after the policy retroactive date, if
applicable, and prior to such policy renewal
or termination date. Claims reported during
such extended reporting period are subject to
the terms, conditions, limits, including lim-
its of liability, and exclusions of the policy.]
I hereby certify that the wording of this
instrument is identical to the wording in 40
CFR 280.97(b)(2) and that the ["Insurer" or
-------
§280.98
40 CFR Ch. I (7-1-94 Edition)
"Group"] Is ["licensed to transact tbe busi-
ness of insurance, or eligible to provide in-
surance as an excess or surplus lines insurer,
in one or more states"].
[Signature of authorized representative of
Insurer]
[Type name]
[Title], Authorised Representative of [name
of Insurer or Risk Retention Group]
[Address of Representative]
(c) Each Insurance policy must be Is-
sued by an Insurer or a risk retention
group that, at a minimum. Is licensed
to transact the business of insurance or
eligible to provide insurance as an ex-
cess or surplus lines insurer in one or
more states.
[S3 FR 43370. Oct. 26. 1988, as amended at 64
FR 47081, Nov. 9.1989]
$280£8 Surety bond.
(a) An owner or operator may satisfy
the requirements of $280.93 by obtain-
ing a surety bond that conforms to the
requirements of this section. The sur-
ety company issuing the bond must be
among those listed as acceptable sure-
ties on federal bonds in the latest Cir-
cular 570 of the U.S. Department of the
Treasury.
(b) The surety bond must be worded
as follows, except that instructions in
brackets must be replaced with the rel-
evant information and the brackets de-
leted:
Performance Bond
Date bond executed:
Period of coverage:
Principal: [legal name and business address
of owner or operator]
Type of organization: [insert "individual,"
"Joint venture," "partnership," or "corpora-
tion"]
State of incorporation (if applicable):
Surety(ies): [name(s) and business
addressees)]
Scope of Coverage: [List tbe number of tanks
at each facility and the name(s) and
address(es) of the faclllty(ies) where the
tanks are located. If more than one instru-
ment is used to assure different tanks at any
one facility, for each tank covered by this In-
strument, list the tank identification num-
ber provided In the notification submitted
pursuant to 40 CFR 280.22, or the correspond-
ing state requirement, and the name and ad-
dress of the facility. List the coverage guar-
anteed by the bond: "taking corrective ac-
tion" and/or "compensating third parties for
bodily Injury and property damage caused
by" either "sudden accidental releases" or
"nonsudden accidental releases" or "acci-
dental releases" "arising from operating the
underground storage tank"].
Penal sums of bond:
Per occurrence 3
Annual aggregate $
Surety'8 bond number:
Know All Persons by These Presents, that
we, the Principal and Surety(ies), hereto are
firmly bound to [the Implementing agency],
in the above penal sums for the payment of
which we bind ourselves, our heirs, execu-
tors. administrators, successors, and assigns
Jointly and severally; provided that, where
the Surety(les) are corporations acting as co-
sureties, we, the Sureties, bind ourselves In
such sums Jointly and severally only for the
purpose of allowing a Joint action or actions
against any or all of us, and for all other pur-
poses each Surety binds itself, Jointly and
severally with the Principal, for the pay-
ment of such sums only as is set forth oppo-
site the name of such Surety, but if no limit
of liability Is indicated, the limit of liability
shall be the (till amount of the penal sums.
Whereas said Principal is required under
Subtitle I of the Resource Conservation and
Recovery" Act (RCRA), as amended, to pro-
vide financial assurance for [insert: "taking
corrective action" and/or "compensating
third parties for bodily injury and property
damage caused by" either "sudden acciden-
tal releases" or "nonsudden accidental re-
leases" or "accidental releases"; If coverage
is different for different tanks or locations,
indicate the type of coverage applicable to
each tank or location] arising from operat-
ing the underground storage tanks Identified
above, and
Whereas said Principal shall establish a
standby trust fund as Is required when a sur-
ety bond is used to provide such financial as-
surance;
-------
Environmental Protection Agency
§280.97
In the event that the [Director] determines
that [owner or operator] has failed to per-
form corrective action for releases arising
out of the operation of the above-identified
tank(s) in accordance with 40 CPR part 280.
subpart F, the guarantor upon written in-
structions from the [Director] shall fund a
standby trust in accordance with the provi-
sions of 40 CFR 280.108, in an amount not to
exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a
judgment or award based on a determination
of liability for bodily injury or property
damage to third parties caused by ["sudden"
and/or "nonaudden"] accldential releases
arising from the operation of the above-iden-
tified tank(s), or fails to pay an amount
agreed to in settlement of a claim arising
from or alleged to arise from such Injury or
damage, the guarantor, upon written in-
structions from the [Director], shall fund a
standby trust in accordance with the provi-
sions of 40 CFR 280.108 to satisfy such
judgment^), award(s), or settlement
agreements) up to the limits of coverage
specified above.
(4) Guarantor agrees that if, at the end of
any fiscal year before cancellation of this
guarantee, the guarantor falls to meet the fi-
nancial test criteria of 40 CFR 280.95 (b) or
(c) and (d), guarantor shall send within 120
days of such failure, by certified mall, notice
to [owner or operator]. The guarantee will
terminate 120 days from the date of receipt
of the notice by [owner or operator], as evi-
denced by the return receipt.
(5) Guarantor agrees to notify [owner or
operator] by certified mall of a voluntary or
Involuntary proceeding under Title 11 (Bank-
ruptcy), U.S. Code naming guarantor as
debtor, within 10 days after commencement
of the proceeding.
(6) Guarantor agrees to remain bound
under this guarantee notwithstanding any
modification or alteration of any obligation
of [owner or operator] pursuant to 40 CFR
part 280.
(7) Guarantor agrees to remain bound
under this guarantee for so long as [owner or
operator] must comply with the applicable
financial responsibility requirements of 40
CFR part 280, subpart H for the above-identi-
fied tank(s), except that guarantor may can-
cel this guarantee by sending notice by cer-
tified mail to [owner or operator], such can-
cellation to become effective no earlier than
120 days after receipt of such notice by
[owner or operator], as evidenced by the re-
turn receipt.
(8) The guarantor's obligation does not
apply to any of the following:
(a) Any obligation of [insert owner or oper-
ator] under a workers' compensation, dis-
ability benefits, or unemployment com-
pensation law or other similar law;
(b) Bodily injury to an employee of [insert
owner or operator] arising from, and in the
course of, employment by [insert owner or
operator];
(c) Bodily injury or property damage aris-
ing from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaded to, in the care, cus-
tody, or control of, or occupied by [insert
owner or operator] that is not the direct re-
sult of a release from a petroleum under-
ground storage tank;
(e) Bodily damage or property damage for
which [insert owner or operator] is obligated
to pay damages by reason of the assumption
of liability in a contract or agreement other
than a contract or agreement entered into to
meet the requirements of 40 CFR 280.93.
(9) Guarantor expressly waives notice of
acceptance of this guarantee by [the imple-
menting agency], by any or all third parties,
or by [owner or operator],
I hereby certify that the wording of this
guarantee is identical to the wording speci-
fied in 40 CFR 280.96(c) as such regulations
were constituted on the effective date shown
immediately below.
Effective date:
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
(d) An owner or operator who uses a
guarantee to satisfy the requirements
of §280.93 must establish a standby
trust fund when the guarantee is ob-
tained. Under the terms of the guaran-
tee, all amounts paid by the guarantor
under the guarantee will be deposited
directly into the standby trust fund in
accordance with instructions from the
Director of the implementing agency
under §280.108. This standby trust fund
must meet the requirements specified
in §280.103.
§ 280.97 Insurance and risk retention
group coverage.
(a) An owner or operator may satisfy
the requirements of §290.93 by obtain-
ing liability insurance that conforms
to the requirements of this section
from a qualified insurer or risk reten-
tion group. Such insurance may be in
the form of a separate insurance policy
or an endorsement to an existing insur-
ance policy.
(b) Each insurance policy must be
amended by an endorsement worded as
specified in paragraph (b)(1) of this sec-
tion, or evidenced by a certificate of
-------
§280.97
40 CFR Ch. 1 <7-1-94 Edition)
insurance worded as specified in para-
graph (b)(2) of this section, except that
instructions in brackets must be re-
placed with the relevant information
and the brackets deleted:
(1) Endorsement
Name: [name of each covered location]
Address: [address of each covered location]
Policy Number:
Period of Coverage: [current policy period]
Name of [Insurer or Risk Retention Group]:
Address of [Insurer or Risk Retention
Group]:
Name of Insured:
Address of Insured:
Endorsement:
1. This endorsement certifies that the pol-
icy to which the endorsement is attached
provides liability insurance covering the fol-
lowing underground storage tanks:
[List the number of tanks at each facility
and the name(s) and address(es) of the
faclllty(les) where the tanks are located.
If more than one Instrument is used to
assure different tanks at any one facil-
ity, for each tank covered by this Instru-
ment, list the tank Identification num-
ber provided In the notification submit-
ted pursuant to 40 CFR 280.22, or the cor-
responding state requirement, and the
name and address of the facility.]
for [Insert: "taking corrective action" and/or
"compensating third parties for bodily in-
jury and property damage caused by" either
"sudden accidental releases" or "nonsudden
accidental releases" or "accidental re-
leases"; in accordance with and subject to
the limits of liability, exclusions, conditions,
and other terms of the policy; If coverage is
different for different tanks or locations, in-
dicate the type of coverage applicable to
each tank or location] arising from operat-
ing the underground storage tank(s) identi-
fied above.
The limits of liability are [Insert the dollar
amount of the "each occurrence" and "an-
nual aggregate" limits of the Insurer's or
Group's liability; If the amount of coverage
is different for different types of coverage or
for different underground storage tanks or
locations, indicate the amount of coverage
for each type of coverage and/or for each un-
derground storage tank or location], exclu-
sive of legal defense costs, which are subject
to a separate limit under the policy. This
coverage is provided under [policy number].
The effective date of said policy is [date].
2. The insurance afforded with respect to
such occurrences is subject to all of the
terms and conditions of the policy; provided,
however, that any provisions inconsistent
with subsections (a) through (e) of this Para-
graph 2 are hereby amended to conform with
subsections (a) through (e);
a. Bankruptcy or insolvency of the insured
shall not relieve the ["Insurer" or "Group"]
of its obligations under the policy to which
this endorsement is attached.
b. The ["Insurer" or "Group"] is liable for
the payment of amounts within any deduct-
ible applicable to the policy to the provider
of corrective action or a damaged third-
party, with a right of reimbursement by the
insured for any such payment made by the
["Insurer" or "Group"]. This provision does
not apply with respect to that amount of any
deductible for which coverage is dem-
onstrated under another mechanism or com-
bination of mechanisms as specified in 40
CFR 280.95-280.102.
c. Whenever requested by [a Director of an
implementing agency], the ["Insurer" or
"Group"] agrees to furnish to [the Director]
a signed duplicate original of the policy and
all endorsements.
d. Cancellation or any other termination of
the insurance by the ["Insurer" or "Group"],
except for non-payment of premium or mis-
representation by the Insured, will be effec-
tive only upon written notice and only after
the expiration of 60 days after a copy of such
written notice is received by the Insured.
Cancellation for non-payment of premium or
misrepresentation by the insured will be ef-
fective only upon written notice and only
after expiration of a minimum of 10 days
after a copy of such written notice is re-
ceived by the insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise
covered by the policy that are reported to
the ["Insurer" or "Group"] within six
months of the effective date of cancellation
or non-renewal of the policy except where
the new or renewed policy has the same ret-
roactive date or a retroactive date earlier
than that of the prior policy, and which arise
out of any covered occurrence that com-
menced after the policy retroactive date, if
applicable, and prior to such policy renewal
or termination date. Claims reported during
such extended reporting period are subject to
the terms, conditions, limits. Including lim-
its of liability, and exclusions of the policy.]
I hereby certify that the wording of this
instrument Is identical to the wording in 40
CFR 280.97(b)(1) and that the ["Insurer" or
"Group"] is ["licensed to transact the busi-
-------
Environmental Protection Agency
§280.98
Now, therefore, the conditions of the obli-
gation are such that if the Principal shall
faithfully ["take corrective action, in ac-
cordance with 40 CFR part 280, subpart F and
the Director of the state implementing agen-
cy's instructions for." and/or "compensate
injured third parties for bodily Injury and
property damage caused by" either "sudden"
or "nonsudden" or "sudden and nonsudden"]
accidental releases arising from operating
the tank(s) indentified above, or if the Prin-
cipal shall provide alternate financial assur-
ance, as specified in 40 CFR part 280, subpart
H, within 120 days after the date the notice
of cancellation is received by the Principal
from the Surety(ies), then this obligation
shall be null and void; otherwise it is to re-
main in full force and effect.
Such obligation does not apply to any of
the following:
(a) Any obligation of [insert owner or oper-
ator] under a workers' compensation, dis-
ability benefits, or unemployment com-
pensation law or other similar law;
(b) Bodily injury to an employee of [insert
owner or operator] arising from, and in the
course of, employment by [insert owner or
operator];
(c) Bodily injury or property damage aris-
ing from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaned to, in the care, cus-
tody, or control of. or occupied by [insert
owner or operator] that is not the direct re-
sult of a release from a petroleum under-
ground storage tank;
(e) Bodily injury or property damage for
which [insert owner or operator] is obligated
to pay damages by reason of the assumption
of liability in a contract or agreement other
than a contract or agreement entered into to
meet the requirements of 40 CFR 280.93.
The Surety(ies) shall become liable on this
bond obligation only when the Principal has
failed to fulfill the conditions described
above.
Upon notification by [the Director of the
implementing agency] that the Principal has
failed to ["take corrective action, in accord-
ance with 40 CFR part 280. subpart F and the
Director's Instructions." and/or "compensate
injured third parties"] as guaranteed by this
bond, the Surety(ies) shall either perform
["corrective action in accordance with 40
CFR part 280 and the Director's instruc-
tions," and/or "third-party liability com-
pensation"] or place funds in an amount up
to the annual aggregate penal sum into the
standby trust fund as directed by [the Re-
gional Administrator or the Director] under
40 CFR 280.108.
Upon notification by [the Director] that
the Principal has failed to provide alternate
financial assurance within 60 days after the
date the notice of cancellation is received by
the Principal from the Surety(ies) and that
[the Director] has determined or suspects
that a release has occurred, the Surety(ies)
shall place funds in an amount not exceeding
the annual aggregate penal sum into the
standby trust fund as directed by [the Direc-
tor] under 40 CFR 280.108.
The Surety(ies) hereby waive(s) notifica-
tion of amendments to applicable laws, stat-
utes, rules, and regulations and agTees that
no such amendment shall in any way allevi-
ate its (their) obligation on this bond.
The liability of the Surety(ies) shall not be
discharged by any payment or succession of
payments hereunder, unless and until such
payment or payments shall amount in the
annual aggregate to the penal sum shown on
the face of the bond, but in no event shall
the obligation of the Surety(ies) hereunder
exceed the amount of said annual aggregate
penal sum.
The Surety(ies) may cancel the bond by
sending notice of cancellation by certified
mail to the Principal, provided, however,
that cancellation shall not occur during the
120 days beginning on the date of receipt of
the notice of cancellation by the Principal,
as evidenced by the return receipt.
The Principal may terminate this bond by
sending written notice to the Surety(ies).
In Witness Thereof, the Principal and
Surety(ies) have executed this Bond and
have affixed their seals on the date set forth
above.
The persons whose signatures appear below
hereby certify that they are authorized to
execute this surety bond on behalf of the
Principal and Surety(ies) and that the word-
ing of this surety .bond is identical to the
wording specified in 40 CFR 280.98(b) as such
regulations were constituted on the date this
bond was executed.
Principal
[Signature(s)]
[Names(s)]
[Title(s)]
[Corporate seal]
Corporate Surety(ies)
[Name and address]
[State of Incorporation:
[Liability limit: $
[Signature(s)]
[Names(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s),
corporate seal, and other information in the
same manner as for Surety above.]
Bond premium: $
(c) Under the terms of the bond, the
surety will become liable on the bond
obligation when the owner or operator
fails to perform as guaranteed by the
bond. In all cases, the surety's liability
-------
§280.99
40 CFR Ch. I <7-1-94 Edition)
is limited to the per-occurrence and an-
nual aggregate penal sums.
(d) The owner or operator who uses a
surety bond to satisfy the require-
ments of §280.93 must establish a
standby trust fund, when the surety
bond is acquired. Under the terms of
the bond, all amounts paid by the sur-
ety under the bond will be deposited di-
rectly into the standby trust fund in
accordance with instructions from the
Director under §280.108. This standby
trust fund must meet the requirements
specified in §280.103.
§ 280.99 Letter of credit.
(a) An owner or operator may satisfy
the requirements of §280.93 by obtain-
ing an irrevocable standby letter of
credit that conforms to the require-
ments of this section. The issuing in-
stitution must be an entity that has
the authority to issue letters of credit
in each state where used and whose let-
ter-of-credit operations are regulated
and examined by a federal or state
agency.
(b) The letter of credit must be word-
ed as follows, except that instructions
in brackets are to be replaced with the
relevant information and the brackets
deleted:
Irrevocable Standby Letter of Credit
[Name and address of issuing institution]
[Name and address of Director(s) of state im-
plementing agency(ies)]
Dear Sir or Madam: We hereby establish
our Irrevocable Standby Letter of Credit No.
in your favor, at the request and for the
account of [owner or operator name] of [ad-
dress] up to the aggregate amount of [in
words] U.S. dollars ({[insert dollar amount]),
available upon presentation [insert, if more
than one Director of a state implementing
agency is a beneficiary, "by any one of you"]
of
(1) your sight draft, bearing reference to
this letter of credit, No. , and
(2) your signed statement reading as fol-
lows: "I certify that the amount of the draft
is payable persuant to regulations issued
under authority of Subtitle I of the Resource
Conservation and Recovery Act of 1976, as
amended."
This letter of credit may be drawn on to
cover [insert: "taking corrective action"
and/or "compensating third parties for bod-
ily injury and property damage caused by"
either "sudden accidental releases" or
"nonsudden accidental releases" or "acci-
dental releases"] arising from operating the
underground storage tank(s) Identified below
in the amount of [In words] S[insert dollar
amount] per occurrence and [In words]
$[insert dollar amount] annual aggregate:
[List the number of tanks at each facility
and the name(s) and addressees) of the
facility(ies) where the tanks are located. If
more than one instrument is used to assure
different tanks at any one facility, for each
tank covered by this instrument, list the
tank identification number provided in the
notification submitted pursuant to 40 CFR
280.22, or the corresponding state require-
ment, and the name and address of the facil-
ity.]
The letter of credit may not be drawn on to
cover any of the following:
(a) Any obligation of [insert owner or oper-
ator] under a workers' compensation, dis-
ability benefits, or unemployment com-
pensation law or other similar law;
(b) Bodily Injury to an employee of [Insert
owner or operator] arising from, and in the
course of, employment by [insert owner or
operator];
(c) Bodily injury or property damage aris-
ing from the ownership, maintenance, use. or
entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaned to. in the care, cus-
tody, or control of, or occupied by [Insert
owner or operator] that is not the direct re-
sult of a release from a petroleum under-
ground storage tank;
(e) Bodily Injury or property damage for
which [insert owner or operator] is obligated
to pay damages by reason of the assumption
of liability in a contract or agreement other
than a contract or agreement entered into to
meet the requirements of 40 CFR 280.93.
This letter of credit Is effective as of [date]
and shall expire on [date], but such expira-
tion date shall be automatically extended for
a period of [at least the length of the origi-
nal term] on [expiration date] and on each
successive expiration date, unless, at least
120 days before the curent expiration date,
we notify [owner or operator] by certified
mail that we have decided not to extend this
letter of credit beyond the current expira-
tion date. In the event that [owner or opera-
tor] is so notified, any unused portion of the
credit shall be available upon presentation of
your sight draft for 120 days after the date of
receipt by [owner or operator], as shown on
the signed return receipt.
Whenever this letter of credit is drawn on
under and In compliance with the terms of
this credit, we shall duly honor such draft
upon presentation to us, and we shall deposit
the amount of the draft directly into the
standby trust fund of [owner or operator] in
accordance with your Instructions.
We certify that the wording of this letter
of credit is identical to the wording specified
-------
Environmental Protection Agency
§280.100
in 40 CFR 280.99(b) as such regulations were
constituted on the date shown Immediately
below.
[Signature(s) and title(s) of official(s) of issu-
ing institution]
[Date]
This credit is subject to [insert "the most
recent edition of the Uniform Customs and
Practice for Documentary Credits, published
and copyrighted by the International Cham-
ber of Commerce." or "the Uniform Commer-
cial Code"].
(c) An owner or operator who uses a
letter of credit to satisfy the require-
ments of §280.93 must also establish a
standby trust fund when the letter of
credit is acquired. Under the terms of
the letter of credit, all amounts paid
pursuant to a draft by the Director of
the implementing agency will be depos-
ited by the issuing institution directly
into the standby trust fund in accord-
ance with instructions from the Direc-
tor under §280.108. This standby trust
fund must meet the requirements spec-
ified in §280.103.
(d) The letter of credit must be irrev-
ocable with a term specified by the is-
suing institution. The letter of credit
must provide that credit be automati-
cally renewed for the same term as the
original term, unless, at least 120 days
before the current expiration date, the
issuing institution notifies the owner
or operator by certified mail of its de-
cision not to renew the letter of credit.
Under the terms of the letter of credit,
the 120 days will begin on the date
when the owner or operator receives
the notice, as evidenced by the return
receipt.
[53 FR 37194, Sept. 23, 1988, as amended at 59
FR 29960, June 10. 1994]
Effective Date Note: At 59 FR 29960, June
10, 1994. §280.99 was amended at revising the
last sentence in paragraph (b). effective Au-
gust 9, 1994. For the convenience of the user
the superseded text appears as follows:
{ 280.99 Letter of credit.
*****
(b) * * * This credit is subject to [insert
"the most recent edition of the Uniform Cus-
toms and Practice for Documentary Credits,
published by the International Chamber of
Commerce," or "the Uniform Commercial
Code"].
*****
§280.100 Use of state-required mecha-
nism.
(a) For underground storage tanks lo-
cated in a state that does not have an
approved program, and where the state
requires owners or operators of under-
ground storage tanks to demonstrate
financial responsibility for taking cor-
rective action and/or for compensating
third parties for bodily injury and
property damage, an owner or operator
may use a state-required financial
mechanism to meet the requirements
of §280.93 if the Regional Administrator
determines that the state mechanism
is at least equivalent to the financial
mechanisms specified in this subpart.
(b) The Regional Administrator will
evaluate the equivalency of a state-re-
quired mechanism principally in terms
of: certainty of the availability of
funds for taking corrective action and/
or for compensating third parties; the
amount of funds that will be made
available; and the types of costs cov-
ered. The Regional Administrator may
also consider other factors as is nec-
essary.
(c) The state, an owner or operator,
or any other interested party may sub-
mit to the Regional Administrator a
written petition requesting that one or
more of the state-required mechanisms
be considered acceptable for meeting
the requirements of §280.93. The sub-
mission must include copies of the ap-
propriate state statutory and regu-
latory requirements and must show the
amount of funds for corrective action
and/or for compensating third parties
assured by the mechanism(s). The Re-
gional Administrator may require the
petitioner to submit additional infor-
mation as is deemed necessary to make
this determination.
(d) Any petition under this section
may be submitted on behalf of all of
the state's underground storage tank
owners and operators.
(e) The Regional Administrator will
notify the petitioner of his determina-
tion regarding the mechanism's accept-
ability in lieu of financial mechanisms
specified in this subpart. Pending this
determination, the owners and opera-
tors using such mechanisms will be
deemed to be in compliance with the
requirements of §280.93 for under-
ground storage tanks located in the
-------
§280.101
40 CFR Ch. I (7-1-94 Edition)
state for the amounts and types of
costs covered by such mechanisms.
[53 FR 43370. Oct. 26. 1988; 53 FR 51274, Dec.
21. 1988]
§280.101 State fund or other state as-
surance.
(a) An owner or operator may satisfy
the requirements of §280.93 for under-
ground storage tanks located in a
state, where EPA is administering the
requirements of this subpart, which
assures that monies will be available
from a state fund or state assurance
program to cover costs up to the limits
specified in §280.93 or otherwise assures
that such costs will be paid if the Re-
gional Administrator determines that
the state's assurance is at least equiva-
lent to the financial mechanisms speci-
fied in this subpart.
(b) The Regional Administrator will
evaluate the equivalency of a state
fund or other state assurance prin-
cipally in terms of: Certainty of the
availability of funds for taking correc-
tive action and/or for compensating
third parties; the amount of funds that
will be made available; and the types of
costs covered. The Regional Adminis-
trator may also consider other factors
as is necessary.
(c) The state must submit to the Re-
gional Administrator a description of
the state fund or other state assurance
to be supplied as financial assurance,
along with a list of the classes of un-
derground storage tanks to which the
funds may be applied. The Regional Ad-
ministrator may require the state to
submit additional information as is
deemed necessary to make a deter-
mination regarding the acceptability
of the state fund or other state assur-
ance. Pending the determination by
the Regional Administrator, the owner
or operator of a covered class of USTs
will be deemed to be in compliance
with the requirements of §280.93 for the
amounts and types of costs covered by
the state fund or other state assurance.
(d) The Regional Administrator will
notify the state of his determination
regarding the acceptability of the
state's fund or other assurance in lieu
of financial mechanisms specified in
this subpart. Within 60 days after the
Regional Administrator notifies a state
that a state fund or other state assur-
ance is acceptable, the state must pro-
vide to each owner or operator for
which it is assuming financial respon-
sibility a letter or certificate describ-
ing the nature of the state's assump-
tion of responsibility. The letter or cer-
tificate from the state must include, or
have attached to it, the following in-
formation: the facility's name and ad-
dress and the amount of funds for cor-
rective action and/or for compensating
third parties that is assured by the
state. The owner or operator must
maintain this letter or certificate on
file as proof of financial responsibility
in accordance with §280.107(b)(5).
§280.102 Trust fund.
(a) An owner or operator may satisfy
the requirements of §280.93 by estab-
lishing a trust fund that conforms to
the requirements of this section. The
trustee must be an entity that has the
authority to act as a trustee and whose
trust operations are regulated and ex-
amined by a federal agency or an agen-
cy of the state in which the fund is es-
tablished.
(b) The wording of the trust agree-
ment must be identical to the wording
specified in § 280.103(b)(1), and must be
accompanied by a formal certification
of acknowledgement as specified in
§ 280.103(b)(2).
(c) The trust fund, when established,
must be funded for the full required
amount of coverage, or funded for part
of the required amount of coverage and
used in combination with other
mechanism(s) that provide the remain-
ing required coverage.
(d) If the value of the trust fund is
greater than the required amount of
coverage, the owner or operator may
submit a written request to the Direc-
tor of the implementing agency for re-
lease of the excess.
(e) If other financial assurance as
specified in this subpart is substituted
for all or part of the trust fund, the
owner or operator may submit a writ-
ten request to the Director of the im-
plementing agency for release of the
excess.
(f) Within 60 days after receiving a
request from the owner or operator for
release of funds as specified in para-
graph (d) or (e) of this section, the Di-
rector of the implementing agency will
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Environmental Protection Agency
§280.103
instruct the trustee to release to the
owner or operator such funds as the Di-
rector specifies in writing.
§ 280.103 Standby trust fund.
(a) An owner or operator using any
one of the mechanisms authorized by
§§280.96, 280.98, or 280.99 must establish
a standby trust fund when the mecha-
nism is acquired. The trustee of the
standby trust fund must be an entity
that has the authority to act as a
trustee and whose trust operations are
regulated and examined by a Federal
agency or an agency of the state in
which the fund is established.
(b)(1) The standby trust agreement,
or trust agreement, must be worded as
follows, except that instructions in
brackets are to be replaced with the
relevant information and the brackets
deleted:
Trust agreement
Trust agreement, the "Agreement," en-
tered into as of [date] by and between [name
of the owner or operator], a [name of state]
[insert "corporation," "partnership," "asso-
ciation," or "proprietorship"], the "Grant-
or," and [name of corporate trustee], [insert
"Incorporated in the state of " or "a
national bank"], the "Trustee."
Whereas, the United States Environmental
Protection Ag-ency, "EPA," an agency of the
United States Government, has established
certain regulations applicable to the Grant-
or. requiring that an owner or operator of an
underground storage tank shall provide as-
surance that funds will be available when
needed for corrective action and third-party
compensation for bodily injury and property
damage caused by sudden and nonsudden ac-
cidental releases arising from the operation
of the underground storage tank. The at-
tached Schedule A lists the number of tanks
at each facility and the name(s) and
address(es) of the facility(ies) where the
tanks are located that are covered by the
standpoint trust agreement.
[Whereas, the Grantor has elected to estab-
lish [insert either "a guarantee," "surety
bond," or "letter of credit"] to provide all or
part of such financial assurance for the un-
derground storage tanks identified herein
and is required to establish a standby trust
fund able to accept payments from the in-
strument (This paragraph is only applicable
to the standby trust agreement.)];
Whereas, the Grantor, acting through its
duly authorized officers, has selected the
Trustee to be the trustee under this agree-
ment, and the Trustee is willing to act as
trustee;
Now. therefore, the Grantor and the Trust-
ee agree as follows;
Section 1. Definitions
As used in this Agreement;
(a) The term "Grantor" means the owner
or operator who enters into this Agreement
and any successors or assigns of the Grantor.
(b) The term "Trustee" means the Trustee
who enters into this Agreement and any suc-
cessor Trustee.
Section 2. Identification of the Financial
Assurance Mechanism
This Agreement pertains to the [identify
the financial assurance mechanism, either a
guarantee, surety bond, or letter of credit,
from which the standby trust fund is estab-
lished to receive payments (This paragraph
is only applicable to the standby trust agree-
ment.)].
Section 3. Establishment of Fund
The Grantor and the Trustee hereby estab-
lish a trust fund, the "Fund," for the benefit
of [implementing agency]. The Grantor and
the Trustee intend that no third party have
access to the Fund except as herein provided.
[The Fund is established initially as a stand-
by to receive payments and shall not consist
of any property.] Payments made by the pro-
vider of financial assurance pursuant to [the
Director of the implementing agency's] in-
struction are transferred to the Trustee and
are referred to as the Fund, together with all
earnings and profits thereon, less any pay-
ments or distributions made by the Trustee
pursuant to this Agreement. The Fund shall
be held by the Trustee, IN TRUST, as herein-
after provided. The Trustee shall not be re-
sponsible nor shall it undertake any respon-
sibility for the amount or adequacy of, nor
any duty to collect from the Grantor as pro-
vider of financial assurance, any payments
necessary to discharge any liability of the
Grantor established by [the state implement-
ing agency]
Section 4. Payment for ["Corrective Action"
and/or Third-Party Liability Claims"]
The Trustee shall make payments from the
Fund as [the Director of the implementing
agency] shall direct, in writing, to provide
for the payment of the costs of [insert: "tak-
ing corrective action" and/or compensating
third parties for bodily injury and property
damage caused by" either "sudden acciden-
tal releases" or "nonsudden accidental re-
leases" or "accidental releases"] arising
from operating the tanks covered by the fi-
nancial assurance mechanism identified in
this Agreement.
The Fund may not be drawn upon to cover
any of the following:
(a) Any obligation of [insert owner or oper-
ator] under a workers' compensation, dis-
-------
§280.103
40 CFR Ch. I (7-1-94 Edition)
ability benefits, or unemployment com-
pensation law or other similar law;
(b) Bodily injury to an employee of [insert
owner or operator] arising from, and in the
course of employment by [insert owner or
operator];
(c) Bodily injury or property damage aris-
ing from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaned to, in the care, cus-
tody, or control of, or occupied by [insert
owner or operator] that is not the direct re-
sult of a release from a petroleum under-
ground storage tank;
(e) Bodily injury or property damage for
which [insert owner or operator] is obligated
to pay damages by reason of the assumption
of liability in a contract or agreement other
than a contract or agreement entered into to
meet the requirements of 40 CFR 280.93.
The Trustee shall reimburse the Grantor,
or other persons as specified by [the Direc-
tor], from the Fund for corrective action ex-
penditures and/or third-party liability
claims in such amounts as [the Director]
shall direct In writing. In addition, the
Trustee shall refund to the Grantor such
amounts as [the Director] specifies in writ-
ing. Upon refund, such funds shall no longer
constitute part of the Fund as defined here-
in.
Section 5. Payments Comprising the Fund
Payments made to the Trustee for the
Fund shall consist of cash and securities ac-
ceptable to the Trustee.
Section 6. Trustee Management
The Trustee shall invest and reinvest the
principal and income of the Fund and keep
the Fund invested as a single fund, without
distinction between principal and income, in
accordance with general investment policies
and guidelines which the Grantor may com-
municate in writing to the Trustee from
time to time, subject, however, to the provi-
sions of this Section. In investing, reinvest-
ing, exchanging, selling, and managing the
Fund, the Trustee shall discharge his duties
with respect to the trust fund solely in the
interest of the beneficiaries and with the
care, skill, prudence, and diligence under the
circumstances then prevailing which persons
of prudence, acting in a like capacity and fa-
miliar with such matters, would use in the
conduct of an enterprise of a like character
and with like aims; except that;
(i) Securities or other obligations of the
Grantor, or any other owner or operator of
the tanks, or any of their affiliates as de-
fined in the Investment Company Act of 1940.
as amended, 15 U.S.C. 80a-2(a), shall not be
acquired or held, unless they are securities
or other obligations of the federal or a state
government;
(ii) The Trustee is authorized to invest the
Fund in time or demand deposits of the
Trustee, to the extent insured by an agency
of the federal or state government; and
(ill) The Trustee is authorized to hold cash
awaiting Investment or distribution
uninvested for a reasonable time and with-
out liability for the payment of interest
thereon.
Section 7. Commingling and Investment
The Trustee is expressly authorized in its
discretion:
(a) To transfer from time to time any or
all of the assets of the Fund to any common,
commingled, or collective trust fund created
by the Trustee in which the Fund Is eligible
to participate, subject to all of the provi-
sions thereof, to be commingled 'with the as-
sets of other trusts participating therein;
and
(b) To purchase shares in any Investment
company registered under the Investment
Company Act of 1940, 15 U.S.C. 80a-l et seq..
including one which may be created, man-
aged. underwritten, or to which investment
advice is rendered or the shares of which are
sold by the Trustee. The Trustee may vote
such shares in its discretion.
Section 8. Express Powers of Trustee
Without in any way limiting the powers
and discretions conferred upon the Trustee
by the other provisions of this Agreement or
by law, the Trustee is expressly authorized
and empowered:
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by It,
by public or private sale. No person dealing
with the Trustee shall be bound to see to the
application of the purchase money or to in-
quire into the validity or expediency of any
such sale or other disposition;
(b) To make, execute, acknowledge, and de-
liver any and all documents of transfer and
conveyance and any and all other instru-
ments that may be necessary or appropriate
to carry out the powers herein granted;
(c) To register any securities held in the
Fund in its own name or in the name of a
nominee and to hold any security in bearer
form or in book entry, or to combine certifi-
cates representing such securities with cer-
tificates of the same issue held by the Trust-
ee in other fiduciary capacities, or to deposit
or arrange for the deposit of such securities
in a qualified central depository even
though, when so deposited, such securities
may be merged and held in bulk in the name
of the nominee of such depository with other
securities deposited therein by another per-
son, or to deposit or arrange for the deposit
of any securities issued by the United States
Government, or any agency or instrumental-
-------
Environmental Protection Agency
§280.103
ity thereof, with a Federal Reserve bank, but
the books and records of the Trustee shall at
all times show that all such securities are
part of the Fund;
(d) To deposit any cash in the Fund in in-
terest-bearing accounts maintained or sav-
ings certificates issued by the Trustee, in its
separate corporate capacity, or in any other
banking institution affiliated with the
Trustee, to the extent insured by an agency
of the federal or state government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses
All taxes of any kind that may be assessed
or levied against or in respect of the Fund
and all brokerage commissions incurred by
the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in
connection with the administration of this
Trust, including fees for legal services ren-
dered to the Trustee, the compensation of
the Trustee to the extent not paid directly
by the Grantor, and all other proper charges
and disbursements of the Trustee shall be
paid from the Fund.
Section 10. Advice of Counsel
The Trustee may from time to time con-
sult with counsel, who may be counsel to the
Grantor, with respect to any questions aris-
ing as to the construction of this Agreement
or any action to be taken hereunder. The
Trustee shall be fully protected, to the ex-
tent permitted by law, in acting upon the ad-
vice of counsel.
Section 11. Trustee Compensation
The Trustee shall be entitled to reasonable
compensation for its services as agreed upon
in writing from time to time with the Grant-
or.
Section 12. Successor Trustee
The Trustee may resign or the Grantor
may replace the Trustee, but such resigna-
tion or replacement shall not be effective
until the Grantor has appointed a successor
trustee and this successor accepts the ap-
pointment. The successor trustee shall have
the same powers and duties as those con-
ferred upon the Trustee hereunder. Upon the
successor trustee's acceptance of the ap-
pointment, the Trustee shall assign, trans-
fer, and pay over to the successor trustee the
funds and properties then constituting the
Fund. If for any reason the Grantor cannot
or does not act in the event of the resigna-
tion of the Trustee, the Trustee may apply
to a court of competent jurisdiction for the
appointment of a successor trustee or for in-
structions. The successor trustee shall speci-
fy the date on which it assumes administra-
tion of the trust in writing sent to the
Grantor and the present Trustee by certified
mail 10 days before such change becomes ef-
fective. Any expenses incurred by the Trust-
ee as a result of any of the acts con-
templated by this Section shall be paid as
provided in Section 9.
Section 13. Instructions to the Trustee
All orders, requests, and instructions by
the Grantor to the Trustee shall be in writ-
ing, signed by such persons as are designated
in the attached Schedule B or such other
designees as the Grantor may designate by
amendment to Schedule B. The Trustee shall
be fully protected in acting without inquiry
in accordance with the Grantor's orders, re-
quests, and instructions. All orders, re-
quests, and instructions by [the Director of
the implementing agency] to the Trustee
shall be in writing, signed by [the Director],
and the Trustee shall act and shall be fully
protected in acting in accordance with such
orders, requests, and instructions. The
Trustee shall have the right to assume, in
the absence of written notice to the con-
trary, that no event constituting a change or
a termination of the authority of any person
to act on behalf of the Grantor or [the direc-
torj hereunder has occurred. The Trustee
shall have no duty to act In the absence of
such orders, requests, and instructions from
the Grantor and/or [the Director], except as
provided for herein.
Section 14. Amendment of Agreement
This Agreement may be amended by an in-
strument in writing executed by the Grantor
and the Trustee, or by the Trustee and [the
Director of the implementing agency] if the
Grantor ceases to exist.
Section 15. Irrevocability and Termination
Subject to the right of the parties to
amend this Agreement as provided in Sec-
tion 14, this Trust shall be irrevocable and
shall continue until terminated at the writ-
ten direction of the Grantor and the Trustee,
or by the Trustee and [the Director of the
implementing agency], if the Grantor ceases
to exist. Upon termination of the Trust, all
remaining trust property, less final trust ad-
ministration expenses, shall be delivered .to
the Grantor.
Section 16. Immunity and Indemnification
The Trustee shall not incur personal liabil-
ity of any nature in connection with any act
or omission, made in good faith, in the ad-
ministration of this Trust, or in carrying out
any directions by the Grantor or [the Direc-
tor of the implementing agency) issued in
accordance with this Agreement. The Trust-
ee shall be indemnified and saved harmless
by the Grantor, from and against any per-
sonal liability to which the Trustee may be
subjected by reason of any act or conduct in
its official capacity, including all expenses
-------
§280.104
40 CFR Ch. I (7-1-94 Edition)
reasonably incurred In its defense in the
event the Grantor fails to provide such de-
fense.
Section 17. Choice of Law
This Agreement shall be administered,
construed, and enforced according to the
laws of the state of [insert name of state], or
the Comptroller of the Currency in the case
of National Association banks.
Section 18. Interpretation
As used in this Agreement, words in the
singular include the plural and words in the
plural include the singular. The descriptive
headings for each section of this Agreement
shall not affect the Interpretation or the
legal efficacy of this Agreement.
In Witness whereof the parties have caused
this Agreement to be executed by their re-
spective officers duly authorized and their
corporate seals (if applicable) to be hereunto
affixed and attested as of the date first above
written. The parties below certify that the
wording of this Agreement is identical to the
wording specified in 40 CFR 280.103(b)(1) as
such regulations were constituted on the
date written above.
[Signature of Grantor]
[Name of the Grantor]
[Title]
Attest:
[Signature of Trustee]
[Name of the Trustee]
[Title]
[Seal]
[Signature of Witness]
[Name of the Witness]
[Title]
[Seal]
(2) The standby trust agreement, or trust
agreement must be accompanied by a formal
certification of acknowledgement similar to
the following. State requirements may differ
on the proper content of this acknowledg-
ment.
State of
County of
On this [date], before me personally came
[owner or operator] to me known, who, being
by me duly sworn, did depose and say that
she/he resides at [address], that she/he is
[title] of [corporation], the corporation de-
scribed in and which executed the above in-
strument; that she/he knows the seal of said
corporation; that the seal affixed to such in-
strument is such corporate seal; that it was
so affixed by order of the Board of Directors
of said corporation; and that she/he signed
her/his name thereto by like order.
[Signature of Notary Public]
[Name of Notary Public]
(c) The Director of the implementing
agency will instruct the trustee to re-
fund the balance of the standby trust
fund to the provider of financial assur-
ance if the Director determines that no
additional corrective action costs or
third-party liability claims will occur
as a result of a release covered by the
financial assurance mechanism for
which the standby trust fund was es-
tablished.
(d) An owner or operator may estab-
lish one trust fund as the depository
mechanism for all funds assured in
compliance with this rule.
[53 FR 43370, Oct. 26, 1988; 53 FR 51274. Dec.
21. 1988]
§280.104 Local government bond rat-
ing test.
(a) A general purpose local govern-
ment owner or operator and/or local
government serving as a guarantor
may satisfy the requirements of §280.93
by having a currently outstanding
issue or issues of general obligation
bonds of $1 million or more, excluding
refunded obligations, with a Moody's
rating of Aaa, Aa, A, or Baa, or a
Standard & Poor's rating of AAA, AA,
A, or BBB. Where a local government
has multiple outstanding issues, or
where a local government's bonds are
rated by both Moody's and Standard
and Poor's, the lowest rating must be
used to determine eligibility. Bonds
that are backed by credit enhancement
other than municipal bond insurance
may not be considered in determining
the amount of applicable bonds out-
standing.
(b) A local government owner or op-
erator or local government serving as a
guarantor that is not a general-purpose
local government and does not have
the legal authority to issue general ob-
ligation bonds may satisfy the require-
ments of §280.93 by having a currently
outstanding issue or issues of revenue
bonds of $1 million or more, excluding
refunded issues and by also having a
Moody's rating of Aaa, A, A, or Baa, or
a Standard & Poor's rating of AAA,
AA, A, or BBB a-s the lowest rating for
any rated revenue bond issued by the
local government. Where bonds are
rated by both Moody's and Standard &
Poor's, the lower rating for each bond
must be used to determine eligibility.
-------
Environmental Protection Agency
§280.104
Bonds that are backed by credit en-
hancement may not be considered in
determining the amount of applicable
bonds outstanding.
(c) The local government owner or
operator and/or guarantor must main-
tain a copy of its bond rating published
within the last 12 months by Moody's
or Standard & Poor's.
(d) To demonstrate that it meets the
local government bond rating test, the
chief financial officer of a general pur-
pose local government owner or opera-
tor and/or guarantor must sign a letter
worded exactly as follows, except that
the instructions in brackets are to be
replaced by the relevant information
and the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert:
name and address of local government owner
issue data Maturity date
or operator, or guarantor]. This letter is in
support of the use of the. bond rating test to
demonstrate financial responsibility for [in-
sert: "taking corrective action" and/or
"compensating third parties for bodily in-
jury and property damage"] caused by [in-
sert: "sudden accidental releases" and/or
"nonsudden accidental releases"] in the
amount of at least [insert: dollar amount]
per occurrence and [insert: dollar amount]
annual aggregate arising from operating (an)
underground storage tank(s).
Underground storage tanks at the follow-
ing facilities are assured by this bond rating
test: [List for each facility: the name and ad-
dress of the facility where tanks are assured
by the bond rating test].
The details of the issue date, maturity,
outstanding amount, bond rating, and bond
rating agency of all outstanding bond issues
that are being used by [name of local govern-
ment owner or operator, or guarantor] to
demonstrate financial responsibility are as
follows: [complete table]
Bond rating Rating agency
[Moody's or Standard
& Poor's)
Outstanding amount
The total outstanding obligation of [insert
amount], excluding refunded bond Issues, ex-
ceeds the minimum amount of $1 million. All
outstanding general obligation bonds issued
by this government that have been rated by
Moody's or Standard & Poor's are rated as at
least investment grade (Moody's Baa or
Standard & Poor's BBB) based on the most
recent ra.tingrs published within the last 12
months. Neither rating service has provided
notification within the last 12 months of
downgrading of bond ratings below invest-
ment grade or of withdrawal of bond rating
other than for repayment of outstanding
bond issues.
I hereby certify that the wording of this
letter is identical to the wording specified in
40 CFR Part 280.104(d) as such regulations
were constituted on the date shown imme-
diately below.
[Date]
[Signature]
[Name]
[Title]
(e) To demonstrate that it meets the
local government bond rating test, the
chief financial officer of local govern-
ment owner or operator and/or guaran-
tor other than a general purpose gov-
ernment must sign a letter worded ex-
actly as follows, except that the in-
structions in brackets are to be re-
placed by the relevant information and
the brackets deleted:
Letter from Chief Financial Officer
I am the chief financial officer of [insert:
name and address of local government owner
or operator, or guarantor]. This letter is in
support of the use of the bond rating test to
demonstrate financial responsibility for [in-
sert: "taking corrective action" and/or
"compensating third parties for bodily in-
jury and property damage"] caused by [in-
sert : "sudden accidental releases" and/or
"nonsudden accidental releases"] in the
amount of at least [insert: dollar amount]
per occurrence and [insert: dollar amount]
annual aggregate arising from operating (an)
underground storage tank(s). This local gov-
ernment is not organized to provide general
governmental services and does not have the
legal authority under state law or constitu-
tional provisions to issue general obligation
debt.
Underground storage tanks at the follow-
ing facilities are assured by this bond rating
test: [List for each facility: the name and ad-
dress of the facility where tanks are assured
by the bond rating test).
The details of the issue date, maturity,
outstanding amount, bond rating, and bond
rating agency of all outstanding revenue
-------
§280.105
40 CFR Ch. I (7-1-94 Edition)
bond issues that are being: used by [name of
local government owner or operator, or guar-
antor] to demonstrate financial responsibil-
ity are as follows: [complete table]
Issue date Maturity dale Outstanding amount Bond rating Rating agency
[Moody's or Standard
& Poor's]
The total outstanding obligation of [insert
amount], excluding refunded bond issues, ex-
ceeds the minimum amount of SI million. All
outstanding revenue bonds issued by this
government that have been rated by Moody's
or Standard & Poor's are rated as at least in-
vestment grade (Moody's Baa or Standard &
Poor's BBB) based on the most recent rat-
ings published within the last 12 months.
The revenue bonds listed are not backed by
third-party credit enhancement or are in-
sured by a municipal bond insurance com-
pany. Neither rating service has provided no-
tification within the last 12 months of down-
grading of bond ratings below investment
grade or of withdrawal of bond rating other
than for repayment of outstanding bond is-
sues.
I hereby certify that the wording of this
letter is identical to the wording specified in
40 CFR part 280.104(e) as such regulations
were constituted on the date shown imme-
diately below.
[Date]
[Signature]
[Name]
[Title]
(f) The Director of the implementing
agency may require reports of financial
condition at any time from the local
government owner or operator, and/or
local government guarantor. If the Di-
rector finds, on the basis of such re-
ports or other information, that the
local government owner or operator,
and/or guarantor, no longer meets the
local government bond rating test re-
quirements of §280.104, the local gov-
ernment owner or operator must ob-
tain alternative coverage within 30
days after notification of such a find-
ing.
(g) If a local government owner or op-
erator using the bond rating test to
provide financial assurance finds that
it no longer meets the bond rating test
requirements, the local government
owner or operator must obtain alter-
native coverage within 150 days of the
change in status.
[58 FR 9053, Feb. 18. 1993]
§280.105 Local government financial
test.
(a) A local government owner or op-
erator may satisfy the requirements of
§280.93 by passing the financial test
specified in this section. To be eligible
to use the financial test, the local gov-
ernment owner or operator must have
the ability and authority to assess and
levy taxes or to freely establish fees
and charges. To pass the local govern-
ment financial test, the owner or oper-
ator must meet the criteria of para-
graphs (b)(2) and (b)(3) of this section
based on year-end financial statements
for the latest completed fiscal year.
(b)(1) The local government owner or
operator must have the following infor-
mation available, as shown in the year-
end financial statements for the latest
completed fiscal year:
(i) Total revenues: Consists of the sum
of general fund operating and non-oper-
ating revenues including net local
taxes, licenses and permits, fines and
forfeitures, revenues from use of money
and property, charges for services, in-
vestment earnings, sales (property,
publications, etc.), intergovernmental
revenues (restricted and unrestricted),
and total revenues from all other gov-
ernmental funds including enterprise,
debt service, capital projects, and spe-
cial revenues, but excluding revenues
to funds held in a trust or agency ca-
pacity. For purposes of this test, the
calculation of total revenues shall ex-
clude all transfers between funds under
the direct control of the local govern-
ment using the financial test
(interfund transfers), liquidation of in-
vestments, and issuance of debt.
(ii) Total expenditures: Consists of the
sum of general fund operating and non-
operating expenditures including pub-
lic safety, public utilities, transpor-
tation, public works, environmental
protection, cultural and recreational,
community development, revenue shar-
-------
Environmental Protection Agency
§280.105
ing, employee benefits and compensa-
tion, office management, planning and
zoning, capital projects, interest pay-
ments on debt, payments for retire-
ment of debt principal, and total ex-
penditures from all other governmental
funds including enterprise, debt serv-
ice, capital projects, and special reve-
nues. For purposes of this test, the cal-
culation of total expenditures shall ex-
clude all transfers between funds under
the direct control of the local govern-
ment using the financial test
(interfund transfers).
(iii) Local revenues: Consists of total
revenues (as defined in paragraph
(b)(l)(i) of this section) minus the sum
of all transfers from other govern-
mental entities, including all monies
received from Federal, state, or local
government sources.
(iv) Debt service: Consists of the sum
of all interest and principal payments
on all long-term credit obligations and
all interest-bearing- short-term credit
obligations. Includes interest and prin-
cipal payments on general obligation
bonds, revenue bonds, notes, mort-
gages, judgments, and interest bearing
warrants. Excludes payments on non-
interest-bearing short-term obliga-
tions, interfund obligations, amounts
owed in a trust or agency capacity, and
advances and contingent loans from
other governments.
(v) Total funds: Consists of the sum of
cash and investment securities from all
funds, including general, enterprise,
debt service, capital projects, and spe-
cial revenue funds, but excluding em-
ployee retirement funds, at the end of
the local government's financial re-
porting year. Includes Federal securi-
ties, Federal agency securities, state
and local government securities, and
other securities such as bonds, notes
and mortgages. For purposes of this
test, the calculation of total funds
shall exclude agency funds, private
trust funds, accounts receivable, value
of real property, and other non-secu-
rity assets.
(vi) Population consists of the number
of people in the area served by the
local government.
(2) The local government's year-end
financial statements, if independently
audited, cannot include an adverse
auditor's opinion or a disclaimer of
opinion. The local government cannot
have outstanding issues of general obli-
gation or revenue bonds that are rated
as less than investment grade.
(3) The local government owner or
operator must have a letter signed by
the chief financial officer worded as
specified in paragraph (c) of this sec-
tion.
(c) To demonstrate that it meets the
financial test under paragraph (b) of
this section, the chief financial officer
of the local government owner or oper-
ator, must sign, within 120 days of the
close of each financial reporting year,
as defined by the twelve-month period
for which financial statements used to
support the financial test are prepared,
a letter worded exactly as follows, ex-
cept that the instructions in brackets
are to be replaced by the relevant in-
formation and the brackets deleted:
Letter Prom Chief Financial Officer
I am the chief financial officer of [insert:
name and address of the owner or operator].
Thi9 letter is in support of the use of the
local government financial test to dem-
onstrate financial responsibility for [insert:
"taking: corrective action" and/or "com-
pensating third parties for bodily injury and
property damage"] caused by [insert: "sud-
den accidental releases" and/or "nonsudden
accidental releases"] in the amount of at
least [insert: dollar amount] per occurrence
and [insert: dollar amount] annual aggregate
arising from operating [an] underground
storage tank[s].
Underground storage tanks at the follow-
ing facilities are assured by this financial
test [List for each facility: the name and ad-
dress of the facility where tanks assured by
this financial test are located. If separate
mechanisms or combinations of mechanisms
are being used to assure any of the tanks at
this facility, list each tank assured by this
financial test by the tank identification
number provided in the notification submit-
ted pursuant to 40 CFR Part 280.22 or the cor-
responding state requirements.]
This owner or operator has not received an
adverse opinion, or a disclaimer of opinion
from an independent auditor on its financial
statements for the latest completed fiscal
year. Any outstanding issues of general obli-
gation or revenue bonds, if rated, have a
Moody's rating of Aaa, Aa, A, or Baa or a
Standard and Poor's rating of AAA. AA, A,
or BBB; if rated by both firms, the bonds
have a Moody's rating of Aaa. Aa, A, or Baa
and a Standard and Poor's rating of AAA,
AA, A, or BBB.
-------
§280.105
40 CFR Ch. I (7-1-94 Edition)
Worksheet for Municipal Financial Test
Part I: Basic Information
1. Total Revenues
a. Revenues (dollars)
Value of revenues excludes liquidation of
Investments and Issuance of debt. Value
Includes all general fund operating and
non-operating revenues, as well as all
revenues from all other governmental
funds including enterprise, debt service,
capital projects, and special revenues,
but excluding revenues to funds held In a
trust or agency capacity.
b. Subtract interfund transfers (dol-
lars)
c. Total Revenues (dollars)
2. Total Expenditures
a. Expenditures (dollars)
Value consists of the sum of general fund
operating and non-operating expendi-
tures including interest payments on
debt, payments for retirement of debt
principal, and total expenditures from all
other governmental funds including en-
terprise, debt service, capital projects,
and special revenues.
b. Subtract interfund transfers (dol-
lars)
c. Total Expenditures (dollars)
3. Local Revenues
a. Total Revenues (from lc) (dollars)
b. Subtract total intergovernmental trans-
fers (dollars)
c. Local Revenues (dollars)
4. Debt Service
a. Interest and fiscal charges (dol-
lars)
b. Add debt retirement (dollars)
c. Total Debt Service (dollars^
5. Total Funds (Dollars)
(Sum of amounts held as cash and invest-
ment securities from all funds, excluding
amounts held for employee retirement
funds, agency funds, and trust funds)
6. Population (Persons)
Part II: Application of Test
7. Total Revenues to Population
a. Total Revenues (from lc)
b. Population (from 6)
c. Divide 7a by 7b
d. Subtract 417
e. Divide by 5,212
f. Multiply by 4.095
8. Total Expenses to Population
a. Total Expenses (from 2c)
b. Population (from 6)
c. Divide 8a by 8b
d. Subtract 524
e. Divide by 5,401
f. Multiply by 4.095
9. Local Revenues to Total Revenues
a. Local Revenues (from 3c)
b. Total Revenues (from lc)
c. Divide 9a by 9b
d. Subtract .695
e. Divide by .205
f. Multiply by 2.840
10. Debt Service to Population
a. Debt Service (from 4d)
b. Population (from 6)
c. Divide 10a by 10b
d. Subtract 51
e. Divide by 1,038
f. Multiply by -1.866
11. Debt Service to Total Revenues
a. Debt Service (from 4d)
b. Total Revenues (from lc)
c. Divide 11a by lib
d. Subtract .068
e. Divide by .259
f. Multiply by -3.533
12. Total Revenues to Total Expenses
a. Total Revenues (from lc)
b. Total Expenses (from 2c)
c. Divide 12a by 12b
d. Subtract .910
e. Divide by .899
f. Multiply by 3.458
13. Funds Balance to Total Revenues
a. Total Funds (from 5)
b. Total Revenues (from lc)_
c. Divide 13a by 13b
d. Subtract .891
e. Divide by 9.156
f. Multiply by 3.270
14. Funds Balance to Total Expenses
a. Total Funds (from 5)
b. Total Expenses (from 2c)
c. Divide 14a by 14b
d. Subtract .866
e. Divide by 6.409
f. Multiply by 3.270
15. Total Funds to Population
a. Total Funds (from 5)
b. Population (from 6)
c. Divide 15a by 15b
d. Subtract 270
e. Divide by 4.548
f. Multiply by 1.866
-------
Environmental Protection Agency
§280.106
16. Add 7f + 8f + 9f + lOf + llf + 12f + 13f + 14f
+ 15f + 4.937
I hereby certify that the financial index
shown on line 16 of the worksheet is greater
than zero and that the wording of this letter
is Identical to the wording: specified in 40
CFR part 280.105(c) as such regulations were
constituted on the date shown immediately
below.
[Date]
[Signature]
[Name]
[Title]
(d) If a local government owner or op-
erator using the test to provide finan-
cial assurance finds that it no longer
meets the requirements of the finan-
cial test based on the year-end finan-
cial statements, the owner or operator
must obtain alternative coverage with-
in 160 days of the end of the year for
which financial statements have been
prepared.
(e) The Director of the implementing
agency may require reports of financial
condition at any time from the local
government owner or operator. If the
Director finds, on the basis of such re-
ports or other information, that the
local government owner or operator no
longer meets the financial test require-
ments of §280.105 (b) and (c), the owner
or operator must obtain alternate cov-
erage within 30 days after notification
of such a finding.
(f) If the local government owner or
operator fails to obtain alternate as-
surance within 150 days of finding that
it no longer meets the requirements of
the financial test based on the year-end
financial statements or within 30 days
of notification by the Director of the
implementing agency that it no longer
meets the requirements of the finan-
cial test, the owner or operator must
notify the Director of such failure
within 10 days.
[58 FR 9054. Feb. 18, 1993]
§280.106 Local government guarantee.
(a) A local government owner or op-
erator may satisfy the requirements of
§280.93 by obtaining a guarantee that
conforms to the requirements of this
section. The guarantor must be either
the state in which the local govern-
ment owner or operator is located or a
local government having a "substan-
tial governmental relationship" with
the owner and operator and issuing the
guarantee as an act incident to that re-
lationship. A local government acting
as the guarantor must:
(1) demonstrate that it meets the
bond rating test requirement of
§280.104 and deliver a copy of the chief
financial officer's letter as contained
in § 280.104(c) to the local government
owner or operator; or
(2) demonstrate that it meets the
worksheet test requirements of §280.105
and deliver a copy of the chief financial
officer's letter as contained in
§280.105(c) to the local government
owner or operator; or
(3) demonstrate that it meets the
local government fund requirements of
§ 280.107(a), § 280.107(b), or § 280.107(c)
and deliver a copy of the chief financial
officer's letter as contained in §280.107
to the local government owner or oper-
ator.
(b) If the local government guarantor
is unable to demonstrate financial as-
surance under any of §§280.104, 280.105,
280.107(a), 280.107(b), or 280.107(c), at the
end of the financial reporting year, the
guarantor shall send by certified mail,
before cancellation or non-renewal of
the guarantee, notice to the owner or
operator. The guarantee will terminate
no less than 120 days after the date the
owner or operator receives the notifica-
tion, as evidenced by the return re-
ceipt. The owner or operator must ob-
tain alternative coverage as specified
in §280.114(c).
(c) The guarantee agreement must be
worded as specified in paragraph (d) or
(e) of this section, depending on which
of the following alternative guarantee
arrangements is selected:
(1) If, in the default or incapacity of
the owner or operator, the guarantor
guarantees to fund a standby trust as
directed by the Director of the imple-
menting agency, the guarantee shall be
worded as specified in paragraph (d) of
this section.
(2) If, in the default or incapacity of
the owner or operator, the guarantor
guarantees to make payments as di-
rected by the Director of the imple-
menting agency for taking corrective
action or compensating third parties
for bodily injury and property damage,
the guarantee shall be worded as speci-
fied in paragraph (e) of this section.
-------
§280.106
40 CFR Ch. I (7-1-94 Edition)
(d) If the guarantor is a state, the
local government guarantee with
standby trust must be worded exactly
as follows, except that instructions in
brackets are to be replaced with rel-
evant information and the brackets de-
leted:
Local Government Guarantee With Standby
Trust Made by a State
Guarantee made this [date] by [name of
state], herein referred to as guarantor, to
[the state implementing agency] and to any
and all third parties, and obliges, on behalf
of [local government owner or operator].
Recitals
(1) Guarantor is a state.
(2) [Local government owner or operator]
owns or operates the following underground
storage tank(s) covered by this guarantee:
[List the number of tanks at each facility
and the name(s) and address(es) of the
facility(ies) where the tanks are located. If
more than one instrument is used to assure
different tanks at any one facility, for each
tank covered by this instrument, list the
tank identification number provided in the
notification submitted pursuant to 40 CFR
part 280 or the corresponding state require-
ment. and the name and address of the facil-
ity.] This guarantee satisfies 40 CFR part
280, subpart H requirements for assuring
funding for [insert: "taking corrective ac-
tion" and/or "compensating third parties for
bodily injury and property damage caused
by" either "sudden accidental releases" or
"nonsudden accidental releases" or "acci-
dental releases": if coverage is different for
different tanks or locations, indicate the
type of coverage applicable to each tank or
location] arising from operating the above-
identified underground storage tank(s) in the
amount of [insert dollar amount] per occur-
rence and [insert dollar amount] annual ag-
gregate.
(3) Guarantor guarantees to [implementing
agency] and to any and all third parties that:
In the event that [local government owner
or operator] fails to provide alternative cov-
erage within 60 days after receipt of a notice
of cancellation of this guarantee and the [Di-
rector of the implementing agency] has de-
termined or suspects that a release has oc-
curred at an underground storage tank cov-
ered by this guarantee, the guarantor, upon
instructions from the [Director] shall fund a
standby trust fund in accordance with the
provisions of 40 CFR part 280.112, in an
amount not to exceed the coverage limits
specified above.
In the event that the [Director] determines
that [local government owner or operator]
has failed to perform corrective action for
releases arising out of the operation of the
above-identified tank(s) in accordance with
40 CFR part 280. subpart F. the guarantor
upon written instructions from the [Direc-
tor] shall fund a standby trust fund in ac-
cordance with the provisions of 40 CFR part
280.112. in an amount not to exceed the cov-
erage limits specified above.
If [owner or operator] fails to satisfy a
judgment or award based on a determination
of liability for bodily injury or property
damage to third parties caused by ["sudden"
and/or "nonsudden"] accidental releases
arising from the operation of the above-iden-
tified tank(s). or fails to pay an amount
agreed to in settlement of a claim arising
from or alleged to arise from such injury or
damage, the guarantor, upon written in-
structions from the [Director], shall fund a
standby trust in accordance with the provi-
sions of 40 CFR part 280.112 to satisfy such
judgment(s), award(s), or settlement
agreements) up to the limits of coverage
specified above.
(4) Guarantor agrees to notify [owner or
operator] by certified mail of a voluntary or
involuntary proceeding under Title 11 (Bank-
ruptcy), U.S. Code naming guarantor as
debtor, within 10 days after commencement
of the proceeding.
(5) Guarantor agrees to remain bound
under this guarantee notwithstanding any
modification or alteration of any obligation
of [owner or operator] pursuant to 40 CFR
part 280.
(6) Guarantor agrees to remain bound
under this guarantee for so long as [local
government owner or operator] must comply
with the applicable financial responsibility
requirements of 40 CFR part 280. subpart H
for the above identified tank(s), except that
guarantor may cancel this guarantee by
sending notice by certified mail to [owner or
operator], such cancellation to become effec-
tive no earlier than 120 days after receipt of
such notice by [owner or operator], as evi-
denced by the return receipt.
(7) The guarantor's obligation does not
apply to any of the following:
(a) Any obligation of [local government
owner or operator] under a workers' com-
pensation, disability benefits, or unemploy-
ment compensation law or other similar law;
(b) Bodily injury to an employee of [insert:
local government owner or operator] arising
from, and in the course of, employment by
[insert: local government owner or operator]:
(c) Bodily injury or property damage aris-
ing from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaded to, in the care, cus-
tody, or control of, or occupied by [insert:
local government owner or operator] that is
not the direct result of a release from a pe-
troleum underground storage tank;
-------
Environmental Protection Agency
§280.106
(e) Bodily damage or property damage for
which (insert owner or operator] is obligated
to pay damages by reason of the assumption
of liability in a contract or agreement other
than a contract or agreement entered into to
meet the requirements of 40 CFR part 280.93.
(8) Guarantor expressly waives notice of
acceptance of this guarantee by [the imple-
menting agency], by any or all third parties,
or by [local government owner or operator],
I hereby certify that the wording of this
guarantee is identical to the wording speci-
fied in 40 CFR part 280.106(d) as such regula-
tions were constituted on the effective date
shown immediately below.
Effective date:
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
If the guarantor is a local government, the
local government guarantee with standby
trust must be worded exactly as follows, ex-
cept that instructions in brackets are to be
replaced with relevant information and the
brackets deleted:
Local Government Guarantee With Stand-
by Trust Made by a Local Government
Guarantee made this [date] by [name of
guaranteeing entity], a local government or-
ganized under the laws of [name of state],
herein referred to as guarantor, to [the state
implementing agency] and to any and all
third parties, and obliges, on behalf of [local
government owner or operator].
Recitals
(1) Guarantor meets or exceeds [select one:
the local government bond rating test re-
quirements of 40 CFR part 280.104, the local
government financial test requirements of 40
CFR part 280.105, or the local government
fund under 40 CFR part 280.107(a), 280.107(b),
or 280.107(c)].
(2) [Local government owner or operator]
owns or operates the following underground
storage tank(s) covered by this guarantee:
[List the number of tanks at each facility
and the name(s) and address(es) of the
facility(ies) where the tanks are located. If
more than one instrument is used to assure
different tanks at any one facility, for each
tank covered by this instrument, list the
tank identification number provided in the
notification submitted pursuant to 40 CFR
part 280 or the corresponding state require-
ment, and the name and address of the facil-
ity.] This guarantee satisfies 40 CFR part
280, subpart H requirements for assuring
funding for [insert: "taking corrective ac-
tion" and/or "compensating third parties for
bodily injury and property damage caused
by" either "sudden accidental releases" or
"nonsudden accidental releases" or "acci-
dental releases"; if coverage is different for
different tanks or locations, indicate the
type of coverage applicable to each tank or
location] arising from operating the above-
identified underground storage tank(s) in the
amount of [insert dollar amount] per occur-
rence and [insert: dollar amount] annual ag-
gregate.
(3) Incident to our substantial govern-
mental relationship with [local government
owner or operator], guarantor guarantees to
[implementing agency] and to any and all
third parties that:
In the event that [local government owner
or operator] fails to provide alternative cov-
erage within 60 days after receipt of a notice
of cancellation of this guarantee and the [Di-
rector of the implementing agency] has de-
termined or suspects that a release has oc-
curred at an underground storage tank cov-
ered by this guarantee, the guarantor, upon
instructions from the [Director] shall fund a
standby trust fund in accordance with the
provisions of 40 CFR part 280.112, in an
amount not to exceed the coverage limits
specified above.
In the event that the [Director] determines
that [local government owner or operator]
has failed to perform corrective action for
releases arising out of the operation of the
above-identified tank(s) in accordance with
40 CFR part 280, subpart F, the guarantor
upon written instructions from the [Direc-
tor] shall fund a standby trust fund in ac-
cordance with the provisions of 40 CFR part
280.112, in an amount not to exceed the cov-
erage limits specified above.
If [owner or operator] fails to satisfy a
judgment or award based on a determination
of liability for bodily injury or property
damage to third parties caused by ["sudden"
and/or "nonsudden"] accidental releases
arising from the operation of the above-iden-
tified tank(s), or fails to pay an amount
agreed to in settlement of a claim arising
from or alleged to arise from such injury or
damage, the guarantor, upon written in-
structions from the [Director], shall fund a
standby trust in accordance with the provi-
sions of 40 CFR part 280.112 to satisfy such
judgment(s). award(s), or settlement
agreement(s) up to the limits of coverage
specified above.
(4) Guarantor agrees that, if at the end of
any fiscal year before cancellation of this
guarantee, the guarantor fails to meet or ex-
ceed the requirements of the financial re-
sponsibility mechanism specified in para-
graph (1), guarantor shall send within 120
days of such failure, by certified mail, notice
to [local government owner or operator], as
evidenced by the return receipt.
(5) Guarantor agrees to notify [owner or
operator] by certified mail of a voluntary or
involuntary proceeding under Title 11 (Bank
-------
§280.106
40 CFR Ch. I (7-1-94 Edition)
ruptcy), U.S. Code naming guarantor as
debtor, within 10 days after commencement
of the proceeding.
(6) Guarantor agrees to remain bound
under this guarantee notwithstanding any
modification or alteration of any obligation
of [owner or operator] pursuant to 40 CFR
part 280.
(7) Guarantor agrees to remain bound
under this guarantee for so long as [local
government owner or operator] must comply
with the applicable financial responsibility
requirements of 40 CFR part 280, subpart H
for the above identified tank(s), except that
guarantor may cancel this guarantee by
sending notice by certified mail to [owner or
operator], such cancellation to become effec-
tive no earlier than 120 days after receipt of
such notice by [owner or operator], as evi-
denced by the return receipt.
(6) The guarantor's obligation does not
apply to any of the following:
(a) Any obligation of [local government
owner or operator] under a workers' com-
pensation, disability benefits, or unemploy-
ment compensation law or other similar law;
(b) Bodily injury to an employee of [Insert:
local government owner or operator] arising
from, and in the course of, employment by
[insert: local government owner or operator];
(c) Bodily injury or property damage aris-
ing from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaned to, in the care, cus-
tody, or control of, or occupied by [insert:
local government owner or operator] that is
not the direct result of a release from a pe-
troleum underground storage tank;
(e) Bodily damage or property damage for
which [insert: owner or operator] is obligated
to pay damages by reason of the assumption
of liability in a contract or agreement other
than a contract or agreement entered into to
meet the requirements of 40 CFR part 280.93.
(9) Guarantor expressly waives notice of
acceptance of this guarantee by [the imple-
menting agency], by any or all third parties,
or by [local government owner or operator].
I hereby certify that the wording of this
guarantee is identical to the wording speci-
fied in 40 CFR part 280.106(d) as such regula-
tions were constituted on the effective date
shown immediately below.
Effective date:
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
(e) If the guarantor is a state, the
local government guarantee without
standby trust must be worded exactly
as follows, except that instructions in
brackets are to be replaced with rel-
evant information and the brackets de-
leted:
Local Government Guarantee Without
Standby Trust Made by a State
Guarantee made this [date] by [name of
state], herein referred to as guarantor, to
[the state implementing agency] and to any
and all third parties, and obliges, on behalf
of [local government owner or operator].
Recitals
(1) Guarantor is a state.
(2) [Local government owner or operator]
owns or operates the following underground
storage tank(s) covered by this guarantee:
[List the number of tanks at each facility
and the name(s) and address(es) of the
facllity(ies) where the tanks are located. If
more than one instrument is used to assure
different tanks at any one facility, for each
tank covered by this instrument, list the
tank identification number provided in the
notification submitted pursuant to 40 CFR
part 280 or the corresponding state require-
ment, and the name and address of the facil-
ity.] This guarantee satisfies 40 CFR part
280, subpart H requirements for assuring
funding for [Insert: "taking corrective ac-
tion" and/or "compensating third parties for
bodily injury and property damage caused
by" either "sudden accidental releases" or
"nonsudden accidental releases" or "acci-
dental releases"; if coverage is different for
different tanks or locations, indicate the
type of coverage applicable to each tank or
location] arising from operating the above-
identified underground storage tank(s) in the
amount of [insert: dollar amount] per occur-
rence and [insert: dollar amount] annual ag-
gregate.
(3) Guarantor guarantees to [implementing
agency] and to any and all third parties and
obliges that:
In the event that [local government owner
or operator] fails to provide alternative cov-
erage within 60 days after receipt of a notice
of cancellation of this guarantee and the [Di-
rector of the implementing agency] has de-
termined or suspects that a release has oc-
curred at an underground storage tank cov-
ered by this guarantee, the guarantor, upon
written instructions from the [Director]
shall make funds available to pay for correc-
tive actions and compensate third parties for
bodily injury and property damage in an
amount not to exceed the coverage limits
specified above.
In the event that the [Director] determines
that [local government owner or operator]
has failed to perform corrective action for
releases arising out of the operation of the
above-identified tank(s) in accordance with
40 CFR part 280, subpart F, the guarantor
upon written instructions from the [Direc-
-------
Environmental Protection Agency
§280.106
tor] shall make funds available to pay for
corrective actions in an amount not to ex-
ceed the coverage limits specified above.
If [owner or operator] fails to satisfy a
judgment or award based on a determination
of liability for bodily injury or property
damage to third parties caused by ["sudden"
and/or "nonsudden"] accidental releases
arising from the operation of the above-iden-
tified tank(s). or fails to pay an amount
agreed to in settlement of a claim arising
from or alleged to arise from such injury or
damage, the guarantor, upon written in-
structions from the [Director], shall make
funds available to compensate third parties
for bodily injury and property damage in an
amount not to exceed the coverage limits
specified above.
(4) Guarantor agrees to notify [owner or
operator] by certified mail of a voluntary or
involuntary proceeding under Title 11 (Bank-
ruptcy), U.S. Code naming guarantor as
debtor, within 10 days after commencement
of the proceeding.
(5) Guarantor agrees to remain bound
under this guarantee notwithstanding any
modification or alteration of any obligation
of [owner or operator] pursuant to 40 CFR
part 280.
(6) Guarantor agrees to remain bound
under this guarantee for so long as [local
government owner or operator] must comply
with the applicable financial responsibility
requirements of 40 CFR part 280, subpart H
for the above identified tank(s), except that
guarantor may cancel this guarantee by
sending notice by certified mail to [owner or
operator], such cancellation to become effec-
tive no earlier than 120 days after receipt of
such notice by [owner or operator], as evi-
denced by the return receipt. If notified of a
probable release, the guarantor agrees to re-
main bound to the terms of this guarantee
for all charges arising from the release, up to
the coverage limits specified above, notwith-
standing the cancellation of the guarantee
with respect to future releases.
(7) The guarantor's obligation does not
apply to any of the following:
(a) Any obligation of [local government
owner or operator] under a workers' com-
pensation disability benefits, or unemploy-
ment compensation law or other similar law;
(b) Bodily injury to an employee of [insert
local government owner or operator] arising
from, and in the course of, employment by
[insert: local government owner or operator];
(c) Bodily injury or property damage aris-
ing from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaded to, in the care, cus-
tody, or control of, or occupied by [insert:
local government owner or operator] that is
not the direct result of a release from a pe-
troleum underground storage tank;
(e) Bodily damage or property damage for
which (insert: owner or operator] is obligated
to pay damages by reason of the assumption
of liability in a contract or agreement other
than a contract or agreement entered into to
meet the requirements of 40 CFR part 280.93.
(8) Guarantor expressly waives notice of
acceptance of this guarantee by [the imple-
menting agency], by any or all third parties,
or by [local government owner or operator].
I hereby certify that the wording of this
guarantee is identical to the wording speci-
fied in 40 CFR part 280.106(e) as such regula-
tions were constituted on the effective date
shown immediately below.
Effective date:
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
If the guarantor is a local government, the
local government guarantee without standby
trust must be worded exactly as follows, ex-
cept that instructions in brackets are to be
replaced with relevant information and the
brackets deleted:
Local Government Guarantee Without
Standby Trust Made by a Local Govern-
ment
Guarantee made this [date] by [name of
guaranteeing entity], a local government or-
ganized under the laws of [name of state],
herein referred to as guarantor, to [the state
implementing agency] and to any and all
third parties, and obliges, on behalf of [local
government owner or operator].
Recitals
(1) Guarantor meets or exceeds [select one:
the local government bond rating test re-
quirements of 40 CFR part 280.104, the local
government financial test requirements of 40
part CFR 280.105, the local government fund
under 40 CFR part 280.107(a), 280.107(b), or
280.107(c).
(2) [Local government owner or operator]
owns or operates the following underground
storage tank(s) covered by this guarantee:
[List the number of tanks at each facility
and the name(s) and address(es) of the
facility(ies) where the tanks are located. If
more than one instrument is used to assure
different tanks at any one facility, for each
tank covered by this instrument, list the
tank identification number provided in the
notification submitted pursuant to 40 CFR
part 280 or the corresponding state require-
ment, and the name and address of the facil-
ity.] This guarantee satisfies 40 CFR part
280, subpart H requirements for assuring
funding for [insert: "taking corrective ac-
tion" and/or "compensating third parties for
-------
§280.106
40 CFR Ch. I (7-1-94 Edition)
bodily injury and property damage caused
by" either "sudden accidental releases" or
"nonsudden accidental releases" or "acci-
dental releases"; if coverage is different for
different tanks or locations, indicate the
type of coverage applicable to each tank or
location] arising from operating the above-
identified underground storage tank(s) in the
amount of [Insert: dollar amount] per occur-
rence and [insert: dollar amount] annual ag-
gregate.
(3) Incident to our substantial govern-
mental relationship with [local government
owner or operator], guarantor guarantees to
[implementing agency] and to any and all
third parties and obliges that:
In the event that [local government owner
or operator] fails to provide alternative cov-
erage within 60 days after receipt of a notice
of cancellation of this guarantee and the [Di-
rector of the implementing agency] has de-
termined or suspects that a release has oc-
curred at an underground storage tank cov-
ered by this guarantee, the guarantor, upon
written instructions from the [Director]
shall make funds available to pay for correc-
tive actions and compensate third parties for
bodily injury and property damage in an
amount not to exceed the coverage limits
specified above.
In the event that the [Director] determines
that [local government owner or operator]
has failed to perform corrective action for
releases arising out of the operation of the
above-identified tank(s) In accordance with
40 CFR part 280, subpart F. the guarantor
upon written instructions from the [Direc-
tor] shall make funds available to pay for
corrective actions in an amount not to ex-
ceed the coverage limits specified above.
If [owner or operator] fails to satisfy a
judgment or award based on a determination
of liability for bodily injury or property
damage to third parties caused by ["sudden"
and/or "nonsudden"] accidental releases
arising from the operation of the above-iden-
tified tank(s), or fails to pay an amount
agreed to in settlement of a claim arising
from or alleged to arise from such injury or
damage, the guarantor, upon written in-
structions from the [Director], shall make
funds available to compensate third parties
for bodily injury and property damage in an
amount not to exceed the coverage limits
specified above.
(4) Guarantor agrees that if at the end of
any fiscal year before cancellation of this
guarantee, the guarantor fails to meet or ex-
ceed the requirements of the financial re-
sponsibility mechanism specified in para-
graph (1). guarantor shall send within 120
days of such failure, by certified mail, notice
to [local government owner or operator], as
evidenced by the return receipt.
(5) Guarantor agrees to notify [owner or
operator] by certified mail of a voluntary or
involuntary proceeding under Title 11 (Bank-
ruptcy). U.S. Code naming guarantor as
debtor, within 10 days after commencement
of the proceeding.
(6) Guarantor agrees to remain bound
under this guarantee notwithstanding any
modification or alteration of any obligation
of [owner or operator] pursuant to 40 CFR
part 280.
(7) Guarantor agrees to remain bound
under this guarantee for so long as [local
government owner or operator] must comply
with the applicable financial responsibility
requirements of 40 CFR part 280, subpart H
for the above identified tank(s), except that
guarantor may cancel this guarantee by
sending notice by certified mail to [owner or
operator], such cancellation to become effec-
tive no earlier than 120 days after receipt of
such notice by [owner or operator], as evi-
denced by the return receipt. If notified of a
probable release, the guarantor agrees to re-
main bound to the terms of this guarantee
for all charges arising from the release, up to
the coverage limits specified above, notwith-
standing the cancellation of the guarantee
with respect to future releases.
(8) The guarantor's obligation does not
apply to any of the following:
(a) Any obligation of [local government
owner or operator] under a workers' com-
pensation disability benefits, or unemploy-
ment compensation law or other similar law;
(b) Bodily injury to an employee of [insert:
local government owner or operator] arising
from, and in the course of, employment by
[insert: local government owner or operator];
(c) Bodily Injury or property damage aris-
ing from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor
vehicle, or watercraft;
(d) Property damage to any property
owned, rented, loaded to, in the care, cus-
tody. or control of, or occupied by [Insert:
local government owner or operator] that is
not the direct result of a release from a pe-
troleum underground storage tank;
(e) Bodily damage or property damage for
which [insert: owner or operator] is obligated
to pay damages by reason of the assumption
of liability in a contract or agreement other
than a contract or agreement entered into to
meet the requirements of 40 CFR part 280.93.
(9) Guarantor expressly waives notice of
acceptance of this guarantee by [the imple-
menting agency], by any or all third parties,
or by [local government owner or operator],
I hereby certify that the wording of this
guarantee is identical to the wording speci-
fied in 40 CFR part 280.106(e) as such regula-
tions were constituted on the effective date
shown immediately below.
-------
Environmental Protection Agency
§280.107
Effective date:
[Name of guarantor]
[Authorized signature for guarantor]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
[58 FR 9056, Feb. 18. 1993]
§ 280.107 Local government fund.
A local government owner or opera-
tor may satisfy the requirements of
§280.93 by establishing a dedicated fund
account that conforms to the require-
ments of this section. Except as speci-
fied in paragraph (b), a dedicated fund
may not be commingled with other
funds or otherwise used in normal oper-
ations. A dedicated fund will be consid-
ered eligible if it meets one of the fol-
lowing requirements:
(a) The fund is dedicated by state
constitutional provision, or local gov-
ernment statute, charter, ordinance, or
order to pay for taking corrective ac-
tion and for compensating third parties
for bodily injury and property damage
caused by accidental releases arising
from the operation of petroleum under-
ground storage tanks and is funded for
the full amount of coverage required
under §280.93, or funded for part of the
required amount of coverage and used
in combination with other
mechanism(s) that provide the remain-
ing coverage; or
(b) The fund is dedicated by state
constitutional provision, or local gov-
ernment statute, charter, ordinance, or
order as a contingency fund for general
emergencies, including taking correc-
tive action and compensating third
parties for bodily injury and property
damage caused by accidental releases
arising from the operation of petro-
leum underground storage tanks, and
is funded for five times the full amount
of coverage required under §280.93, or
funded for part of the required amount
of coverage and used in combination
with other mechanism(s) that provide
the remaining coverage. If the fund is
funded for less than five times the
amount of coverage required under
§280.93, the amount of financial respon-
sibility demonstrated by the fund may
not exceed one-fifth the amount in the
fund; or
(c) The fund is dedicated by state
constitutional provision, or local gov-
ernment statute, charter, ordinance or
order to pay for taking corrective ac-
tion and for compensating third parties
for bodily injury and property damage
caused by accidental releases arising
from the operation of petroleum under-
ground storage tanks. A payment is
made to the fund once every year for
seven years until the fund is fully-fund-
ed. This seven year period is hereafter
referred to as the "pay-in-period." The
amount of each payment must be de-
termined by this formula:
TF-CF
Y
Where TF is the total required finan-
cial assurance for the owner or opera-
tor, CF is the current amount in the
fund, and Y is the number of years re-
maining in the pay-in-period, and;
(1) The local government owner or
operator has available bonding author-
ity, approved through voter referen-
dum (if such approval is necessary
prior to the issuance of bonds), for an
amount equal to the difference between
the required amount of coverage and
the amount held in the dedicated fund.
This bonding authority shall be avail-
able for taking corrective action and
for compensating third parties for bod-
ily injury and property damage caused
by accidental releases arising from the
operation of petroleum underground
storage tanks, or
(2) The local government owner or
operator has a letter signed by the ap-
propriate state attorney general stat-
ing that the use of the bonding author-
ity will not increase the local govern-
ment's debt beyond the legal debt ceil-
ings established by the relevant state
laws. The letter must also state that
prior voter approval is not necessary
before use of the bonding authority.
(d) To demonstrate that it meets the
requirements of the local government
fund, the chief financial officer of the
local government owner or operator
and/or guarantor must sign a letter
worded exactly as follows, except that
the instructions in brackets are to be
replaced by the relevant information
and the brackets deleted:
-------
§280.108
40 CFR Ch. I (7-1-94 Edition)
Letter from Chief Financial Officer
I am the chief financial officer of [insert:
name and address of local government owner
or operator, or guarantor). This letter is in
support of the use of the local government
fund mechanism to demonstrate financial re-
sponsibility for [insert: "taking corrective
action" and/or "compensating third parties
for bodily injury and property damage"]
caused by [insert: "sudden accidental re-
leases" and/or "nonsudden accidental re-
leases"] in the amount of at least [insert:
dollar amount] per occurrence and (insert:
dollar amount] annual aggregate arising
from operating (an) underground storage
tank(s).
Underground storage tanks at the follow-
ing facilities are assured by this local gov-
ernment fund mechanism: [List for each fa-
cility: the name and address of the facility
where tanks are assured by the local govern-
ment fund].
[Insert: "The local government fund is
funded for the full amount of coverage re-
quired under §280.93, or funded for part of the
required amount of coverage and used in
combination with other mechanism(s) that
provide the remaining coverage." or "The
local government fund is funded for ten
times the full amount of coverage required
under §280.93, or funded for part of the re-
quired amount of coverage and used in com-
bination with other mechanisms(s) that pro-
vide the remaining coverage," or "A pay-
ment is made to the fund once every, year for
seven years until the fund is fully-funded and
[name of local government owner or opera-
tor] has available bonding authority, ap-
proved through voter referendum, of an
amount equal to the difference between the
required amount of coverage and the amount
held in the dedicated fund" or "A payment is
made to the fund once every year for seven
years until the fund is fully-funded and I
have attached a letter signed by the State
Attorney General stating that (1) the use of
the bonding authority will not Increase the
local government's debt beyond the legal
debt ceilings established by the relevant
state laws and (2) that prior voter approval
is not necessary before use of the bonding
authority"].
The details of the local government fund
are as follows:
Amount in Fund (market value of fund at
close of last fiscal year):
[If fund balance is incrementally funded as
specified in § 280.107(c), insert:
Amount added to fund in the most recently
completed fiscal year:
Number of years remaining in the pay-in pe-
riod: ]
A copy of the state constitutional provi-
sion, or local government statute, charter,
ordinance or order dedicating the fund is at-
tached.
I hereby certify that the wording of this
letter is identical to the wording specified in
40 CFR 280.107(d) a9 such regulations were
constituted on the date shown immediately
below.
[Date]
[Signature]
[Name]
[Title]
[58 FR 9059. Feb. 18. 1993]
§280.108 Substitution of financial as-
surance mechanisms by owner or
operator.
(a) An owner or operator may sub-
stitute any alternate financial assur-
ance mechanisms as specified in this
subpart, provided that at all times he
maintains an effective financial assur-
ance mechanism or combination of
mechanisms that satisfies the require-
ments of §280.93.
(b) After obtaining alternate finan-
cial assurance as specified in this sub-
part, an owner or operator may cancel
a financial assurance mechanism by
providing notice to the provider of fi-
nancial assurance.
[53 FR 43370, Oct. 26, 1988. Redesignated at 58
FR 9051. Feb. 18.1993]
§280.109 Cancellation or nonrenewal
by a provider of financial assur-
ance.
(a) Except as otherwise provided, a
provider of financial assurance may
cancel or fail to renew an assurance
mechanism by sending a notice of ter-
mination by certified mail to the
owner or operator.
(1) Termination of a local govern-
ment guarantee, a guarantee, a surety
bond, or a letter of credit may not
occur until 120 days after the date on
which the owner or operator receives
the notice of termination, as evidenced
by the return receipt.
(2) Termination of insurance or risk
retention coverage, except for non-pay-
ment or misrepresentation by the in-
sured, or state-funded assurance may
not occur until 60 days after the date
on which the owner or operator re-
ceives the notice of termination, as
evidenced by the return receipt. Termi-
nation for non-payment of premium or
misrepresentation by the insured may
not occur until a minimum of 10 days
after the date on which the owner or
operator receives the notice of termi-
-------
Environmental Protection Agency
nation, as evidenced by the return re-
ceipt.
(b) If a provider of financial respon-
sibility cancels or fails to renew for
reasons other than incapacity of the
provider as specified in §280.114, the
owner or operator must obtain alter-
nate coverage as specified in this sec-
tion within 60 days after receipt of the
notice of termination. If the owner or
operator fails to obtain alternate cov-
erage within. 60 days after receipt of
the notice of termination, the owner or
operator must notify the Director of
the implementing agency of such fail-
ure and submit:
(1) The name and address of the pro-
vider of financial assurance;
(2) The effective date of termination;
and
(3) The evidence of the financial as-
sistance mechanism subject to the ter-
mination maintained in accordance
with §280.107(b).
[58 FR 9051, Feb. 18, 1993]
§ 280.110 Reporting by owner or opera-
tor.
(a) An owner or operator must sub-
mit the appropriate forms listed in
§ 280.111(b) documenting current evi-
dence of financial responsibility to the
Director of the implementing agency:
(1) Within 30 days after the owner or
operator identifies a release from an
underground storage tank required to
be reported under §280.53 or §280.61;
(2) If the owner or operator fails to
obtain alternate coverage as required
by this subpart, within 30 days after
the owner or operator receives notice
of:
(i) Commencement of a voluntary or
involuntary proceeding under Title 11
(Bankruptcy), U.S. Code, naming a pro-
vider of financial assurance as a debt-
or,
(ii) Suspension or revocation of the
authority of a provider of financial as-
surance to issue a financial assurance
mechanism,
(iii) Failure of a guarantor to meet
the requirements of the financial test,
(iv) Other incapacity of a provider of
financial assurance; or
(3) As required by §280.95(g) and
§ 280.109(b).
(b) An owner or operator must certify
compliance with the financial respon-
§280.111
sibility requirements of this part as
specified in the new tank notification
form when notifying the appropriate
state or local agency of the installa-
tion of a new underground storage tank
under §280.22.
(c) The Director of the Implementing
Agency may require an owner or opera-
tor to submit evidence of financial as-
surance as described in § 280.111(b) or
other information relevant to compli-
ance with this subpart at any time.
[58 FR 9051, Feb. 18, 1993]
§280.111 Recordkeeping.
(a) Owners or operators must main-
tain evidence of all financial assurance
mechanisms used to demonstrate fi-
nancial responsibility under this sub-
part for an underground storage tank
until released from the requirements of
this subpart under §208.113. An owner
or operator must maintain such evi-
dence at the underground storage tank
site or the owner's or operator's place
of work. Records maintained off-site
must be made available upon request of
the implementing agency.
(b) An owner or operator must main-
tain the following types of evidence of
financial responsibility:
(1) An owner or operator using an as-
surance mechanism specified in §§280.95
through 280.100 or §280.102 or §§280.104
through 280.107 must maintain a copy
of the instrument worded as specified.
(2) An owner or operator using a fi-
nancial test or guarantee, or a local
government financial test or a local
government guarantee supported by
the local government financial test
must maintain a copy of the chief fi-
nancial officer's letter based on year-
end financial statements for the most
recent completed financial reporting
year. Such evidence must be on file no
later than 120 days after the close of
the financial reporting year.
(3) An owner or operator using a
guarantee, surety bond, or letter of
credit must maintain a copy of the
signed standby trust fund agreement
and copies of any amendments to the
agreement.
(4) A local government owner or oper-
ator using a local government guaran-
tee under §280.106(d) must maintain a
copy of the signed standby trust fund
-------
§280.112
40 CFR Ch. I (7-1-94 Edition)
agreement and copies of any amend-
ments to the agreement.
(5) A local government owner or oper-
ator using the local government bond
rating test under §280.104 must main-
tain a copy of its bond rating published
within the last twelve months by
Moody's or Standard & Poor's.
(6) A local government owner or oper-
ator using the local government guar-
antee under §280.106, where the guaran-
tor's demonstration of financial re-
sponsibility relies on the bond rating
test under §280.104 must maintain a
copy of the guarantor's bond rating
published within the last twelve
months by Moody's or Standard &
Poor's.
(7) An owner or operator using an in-
surance policy or risk retention group
coverage must maintain a copy of the
signed insurance policy or risk reten-
tion group coverage policy, with the
endorsement or certificate of insurance
and any amendments to the agree-
ments.
(8) An owner or operator covered by a
state fund or other state assurance
must maintain on file a copy of any
evidence of coverage supplied by or re-
quired by the state under § 280.101(d).
(9) An owner or operator using a local
government fund under §280.107 must
maintain the following documents:
(i) A copy of the state constitutional
provision or local government statute,
charter, ordinance, or order dedicating
the fund, and
(ii) Year-end financial statements for
the most recent completed financial re-
porting year showing the amount in
the fund. If the fund is established
under §280.107(a)(3) using incremental
funding backed by bonding authority,
the financial statements must show
the previous year's balance, the
amount of funding during the year, and
the closing balance in the fund.
(iii) If the fund is established under
§ 280.107(a)(3) using incremental funding
backed by bonding authority, the
owner or operator must also maintain
documentation of the required bonding
authority, including either the results
of a voter referendum (under
§280.107(a)(3)(i)), or attestation by the
State Attorney General as specified
under §280.107(a)(3)(ii).
(10) A local government owner or op-
erator using the local government
guarantee supported by the local gov-
ernment fund must maintain a copy of
the guarantor's year-end financial
statements for the most recent com-
pleted financial reporting year showing
the amount of the fund.
(11)(i) An owner or operator using an
assurance mechanism specified in
§§280.95 through 280.107 must maintain
an updated copy of a certification of fi-
nancial responsibility worded as fol-
lows, except that instructions in brack-
ets are to be replaced with the relevant
information and the brackets deleted:
Certification of Financial Responsibility
[Owner or operator] hereby certifies
that it is in compliance with the re-
quirements of subpart H of 40 CFR part
280.
The financial assurance
mechanism(s) used to demonstrate fi-
nancial responsibility under subpart H
of 40 CFR part 280 is (are) as follows:
[For each mechanism, list the type of
mechanism, name of issuer, mechanism
number (if applicable), amount of cov-
erage, effective period of coverage and
whether the mechanism covers "taking
corrective action" and/or "compensat-
ing third parties for bodily injury and
property damage caused by" either
"sudden accidental releases" or
"nonsudden accidental releases" or
"accidental releases."]
[Signature of owner or operator]
[Name of owner or operator]
[Title]
[Date]
[Signature of witness or notary]
[Name of witness or notary]
[Date]
(ii) The owner or operator must up-
date this certification whenever the fi-
nancial assurance mechanism(s) used
to demonstrate financial responsibility
change(s).
[58 FR 9051, Feb. 18. 1993]
§280.112 Drawing on financial assur-
ance mechanisms.
(a) Except as specified in paragraph
(d) of this section, the Director of the
implementing agency shall require the
guarantor, surety, or institution issu-
ing a letter of credit to place the
-------
Environmental Protection Agency
§280.113
amount of funds stipulated by the Di-
rector, up to the limit of funds pro-
vided by the financial assurance mech-
anism, into the standby trust if:
(1)(i) The owner or operator fails to
establish alternate financial assurance
within 60 days after receiving notice of
cancellation of the guarantee, surety
bond, letter of credit, or, as applicable,
other financial assurance mechanism;
and
(ii) The Director determines or sus-
pects that a release from an under-
ground storage tank covered by the
mechanism has occurred and so noti-
fies the owner or operator or the owner
or operator has notified the Director
pursuant to subparts E or F of a release
from an underground storage tank cov-
ered by the mechanism; or
(2) The conditions of paragraph (b)(1)
or (b)(2) (i) or (ii) of this section are
satisfied.
(b) The Director of the implementing
agency may draw on a standby trust
fund when:
(1) The Director makes a final deter-
mination that a release has occurred
and immediate or long-term corrective
action for the release is needed, and
the owner or operator, after appro-
priate notice and opportunity to com-
ply, has not conducted corrective ac-
tion as required under 40 CFR part 280,
subpart F; or
(2) The Director has received either:
(i) Certification from the owner or
operator and the third-party liability
claimant(s) and from attorneys rep-
resenting the owner or operator and
the third-party liability claimant(s)
that a third-party liability claim
should be paid. The certification must
be worded as follows, except that in-
structions in brackets are to be re-
placed with the relevant information
and the brackets deleted:
Certification of Valid Claim
The undersigned, as principals and as
legal representatives of [insert: owner
or operator] and [insert: name and ad-
dress of third-party claimant], hereby
certify that the claim of bodily injury
[and/or] property damage caused by an
accidental release arising from operat-
ing [owner's or operator's] underground
storage tank should be paid in the
amount of $[ ].
(Signatures]
Owner or Operator
Attorney for Owner or Operator
(Notary)
Date
[Signatures]
Claimant(s)
Attorney(s) for Claimant(s)
(Notary)
Date
or (ii) A valid final court order estab-
lishing a judgment against the owner
or operator for bodily injury or prop-
erty damage caused by an accidental
release from an underground storage
tank covered by financial assurance
under this subpart and the Director de-
termines that the owner or operator
has not satisfied the judgment.
(c) If the Director of the implement-
ing agency determines that the amount
of corrective action costs and third-
party liability claims eligible for pay-
ment under paragraph (b) of this sec-
tion may exceed the balance of the
standby trust fund and the obligation
of the provider of financial assurance,
the first priority for payment shall be
corrective action costs necessary to
protect human health and the environ-
ment. The Director shall pay third-
party liability claims in the order in
which the Director receives certifi-
cations under paragraph (b)(2)(i) of this
section, and valid court orders under
paragraph (b)(2)(ii) of this section.
(d) A governmental entity acting as
guarantor under § 280.106(e), the. local
government guarantee without standby
trust, shall make payments as directed
by the Director under the, , cir-
cumstances described in §280.112 (a),
(b), and (c).
[58 FR 9052, Feb. 18, 1993]
§280.113 Release from the require-
ments.
An owner or operator is no longer re-
quired to maintain financial respon-
sibility under this subpart for an un-
derground storage tank after the tank
has been properly closed or, if correc-
tive action is required, after corrective
action has been completed and the
tank has been properly closed as re-
quired by 40 CFR part 280, subpart G.
[53 FR 43370, Oct. 26. 1988. Redesignated at 58
FR 9051. Feb. 18. 1993]
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§280.114
40 CFR Ch. I (7-1-94 Edition)
§ 280.114 Bankruptcy or other incapac-
ity of owner or operator or provider
of financial assurance.
(a) Within 10 days after commence-
ment of a voluntary or involuntary
proceeding under Title 11 (Bank-
ruptcy), U.S. Code, naming an owner or
operator as debtor, the owner or opera-
tor must notify the Director of the im-
plementing agency by certified mail of
such commencement and submit the
appropriate forms listed in §280.111(b)
documenting current financial respon-
sibility.
(b) Within 10 days after commence-
ment of a voluntary or involuntary
proceeding under Title 11 (Bank-
ruptcy), U.S. Code, naming a guarantor
providing financial assurance as debt-
or, such guarantor must notify the
owner or operator by certified mail of
such commencement as required under
the terms of the guarantee specified in
§280.96.
(c) Within 10 days after commence-
ment of a voluntary or involuntary
proceeding under Title 11 (Bank-
ruptcy), U.S. Code, naming a local gov-
ernment owner or operator as debtor,
the local government owner or opera-
tor must notify the Director of the im-
plementing agency by certified mail of
such commencement and submit the
appropriate forms listed in § 280.111(b)
documenting current financial respon-
sibility
(d) Within 10 days after commence-
m§jit of a voluntary or involuntary
proceeding under Title 11 (Bank-
ruptcy), U.S. Code, naming a guarantor
providing a local government financial
assurance as debtor, such guarantor
rnustn notify the,, local government
oWrier or dperaior by certified mail of
such commencement as required under
the terms of the guarantee specified in
5280.106.
(e) An owner or operator who obtains
financial assurance by a mechanism
other than the financial test of self-in-
surance will be deemed to be without
the required financial assurance in the
event of a bankruptcy or incapacity of
its provider of financial assurance, or a
suspension or revocation of the author-
ity of the provider of financial assur-
ance to issue a guarantee, insurance
policy, risk retention group coverage
policy, surety bond, letter of credit, or
state-required mechanism. The owner
or operator must obtain alternate fi-
nancial assurance as specified in this
subpart within 30 days after receiving
notice of such an event. If the owner or
operator does not obtain alternate cov-
erage within 30 days after such notifi-
cation, he must notify the Director of
the implementing agency.
(f) Within 30 days after receipt of no-
tification that a state fund or other
state assurance has become incapable
of paying for assured corrective action
or third-party compensation costs, the
owner or operator must obtain alter-
nate financial assurance.
[58 FR 9053, Feb. 18. 1993]
§280.115 Replenishment of guarantees,
letters of credit, or surety bonds.
(a) If at any time after a standby
trust is funded upon the instruction of
the Director of the implementing agen-
cy with funds drawn from a guarantee,
local government guarantee with
standby trust, letter of credit, or sur-
ety bond, and the amount in the stand-
by trust is reduced below the full
amount of coverage required, the
owner or operator shall by the anniver-
sary date of the financial mechanism
from which the funds were drawn:
(1) Replenish the value of financial
assurance to equal the full amount of
coverage required, or
(2) Acquire another financial assur-
ance mechanism for the amount by
which funds in the standby trust have
been reduced.
(b) For purposes of this section, the
full amount of coverage required is the
amount of coverage to be provided by
§280.93 of this subpart. If a combination
of mechanisms was used to provide the
assurance funds which were drawn
upon, replenishment shall occur by the
earliest anniversary date among the
mechanisms.
[58 FR 9053, Feb. 18, 1993]
§280.116 Suspension of enforcement.
[Reserved]
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Effective Date - November 14,1995
401 KAR 42:200. Underground Storage Tank System Owner Registration Fees.
RELATES TO: KRS 224.10 and 224.60
STATUTORY AUTHORITY: KRS 224.10-100, 224.60-100, and 224.60-105
NECESSITY AND FUNCTION: KRS 224.60-150 states that the Cabinet shall levy and
collect an annual fee of thirty (30) dollars per underground storage tank (UST) system from
owners and operators of UST systems containing regulated substances for the purpose of funding
the administration of the Underground Storage Tank Branch of the Division of Waste
Management. This administrative regulation establishes provisions for the payment of an annual
registration fee.
Section 1. Applicability. This administrative regulation shall apply to all
owners and operators of UST systems used to store regulated substances.
Section 2. New Notifications.
(1) The current owner of a UST system shall notify the Cabinet of the existence oi the
UST system by completing a Notification of Underground Storage Tank System Form (DEP Form
5024) in accordance with 401 KAR 42:020. This form (incorporated by reference in 401 KAR
42:020) shall be submitted to the Division of Waste Management, Underground Storage Tank
Branch, 14 Reilly Road, Frankfort, KY 40601 no later than thirty (30) days after installation of
the UST system. Upon acceptance of the completed form, the Cabinet shall assign a facility
identification number and shall notify the owner, in writing, of the identification number.
(2) A fee of thirty (30) dollars per UST system, payable to the Kentucky State
Treasurer, shall be submitted to the Underground Storage Tank Branch along with the 'initial
Notification of Underground Storage Tank System Form.
Section 3. Amended Notifications.
(1) The owner or operator shall submit an amended Notification of Underground
Storage Tank System Form, that specifically indicates all amendments* witmn-uuixy (30) days of
any change to the following items:
(a) Ownership of the UST system;
(b) Description of the UST System; or
(c) Financial responsibility.
(2) If amending the Notification of Underground Storage Tank System Form for an
existing UST system, no fee shall be required.
(3) If amending the Notification of Underground Storage Tank System Form to include
one (1) or more additional UST systems, the amended form shall be accompanied by payment of
any annual registration fees that may be due. Fees due shall be calculated at a rate of thirty (30)
dollars for each additional UST system for each year (July 1 through June 30) the UST system
401 KAR 42:200 - 1
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was in the ground. The fee for any year (July 1 through June 30) shall be due if the UST system
was in the ground on July 1 of that year. Fees shall not be due for years prior to the one (1)
beginning July 1, 1990.
(4) If an unregistered UST system is discovered during permanent closure activities,
an amended Notification of Underground Storage Tank System Form shall be submitted to the
Underground Storage Tank Branch of the Division of Waste Management to register the newly
discovered UST system. A one (l)-time registration fee of thirty (30) dollars shall be submitted
for each discovered UST system within thirty (30) days after discovery. Registration fees for
previous years are not required.
Section 4. Changes of Ownership.
(1) If ownership of a UST system changes, the new owner shall complete and submit
an amended Notification of Underground Storage Tank System Form to indicate the new
ownership. The form shall include the previously assigned facility identification number and shall
be submitted to the Underground Storage Tank Branch within thirty (30) days after the
transaction.
(2) If an owner sells a UST system, the seller shall advise the new owner of the
obligation to submit an amended Notification of Underground Storage Tank System Form to the
Underground Storage Tank Branch that indicates the change in ownership. Also, the seller shall
submit, to the Underground Storage Tank Branch within thirty (30) days after the transaction, a
copy of the properly executed deed or other mutually executed legal document supporting the sale
of the UST system, along with a letter indicating the facility name as registered with the Cabinet,
the facility location, and the facility identification number.
(3) Any unpaid registration fees shall be the responsibility of the new owner.
Section 5. Annual Registration Fee and Certificate of Notification.
(1) The owner or operator shall pay a thirty (30) dollar annual registration fee for each
UST system that is in the ground on July 1 of a year (July 1 through June 30). This fee shall not
be required for UST systems that have been permanently closed in accordance with 401 KAR
42:070 or 401 KAR 42:071. Payment shall be submitted to the Underground Storage Tank
Branch of the Division of Waste Management (payable to the Kentucky State Treasurer) within
thirty (30) days after receipt of an invoice from the Cabinet specifying the required payment.
(2) Annual registration fees submitted beginning with the July 1, 1993 year will be
acknowledged with a Certificate of Notification (DEP Form 6052). The certificate shall be posted
in a conspicuous location at the facility, and it shall expire one (1) year from the date of issuance.
401 KAR 42:200 - 2
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