UST ATTORNEY WORKBOOK
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STATE AND FEDERAL UNDERGROUND STORAGE
TANK STATUTES AND REGULATIONS
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UNDERGROUND STORAGE TANK ACT
OF 1988
MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY
OFFICE OF POLLUTION CONTROL
Underground Storage Tank Branch
P. O. Box 10385
Jackson, Mississippi 39289-0385
(601) 961-5171
Adopted by the Commission on Environmental Quality
Last Revisions Made in 1995
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MISSISSIPPI UNDERGROUND STORAGE TANK ACT OF 1988
SEC. 49-17-401. Short title.
sections 49-17-401 through 49-17-433 shall be known as the Mississippi Underground Storage Tank Act of 1988.
SOURCES: Laws, 1988, ch. 547, Sec. 1, eff from and after July 1, 1988.
Research and Practice References-
Bennett, Environmental Concerns in Bankruptcy Litigation. 10 Miss C L R 5, Fall 1989.
Milner & Waggoner, Overview of Major Federal Environmental Acts and Regulations for the General Practitioner. 60
Miss L J 1, Spring, 1990.
ALR Annotations-
Tort liability for pollution from underground storage tank. 5 ALR5th 1.
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
SEC. 49-17-403. Definitions.
For the purposes of Sections 49-17-401 through 49-17-433, the following words and phrases shall have the meaning
ascribed in this section:
(a) "Active site" means a site of an underground storage tank where an owner can be identified and where the tank is in
use for management and handling of motor fuels.
b) "Bonded distributor" means any person holding a distributor's permit issued under either Section 27-55-7, 27-55-305
V 27-57-307.
(c) "Commission" means the Mississippi Commission on Environmental Quality.
(d) "Contamination" means the presence or discharge of regulated substances in or on the land or in the waters of the
state.
(e) "Department" means the Mississippi Department of Environmental Quality.
(0 "Director" means the Executive Director of the Mississippi Department of Environmental Quality
(g) "Groundwater" means water located beneath the land surface located wholly or partially within the boundaries of the
state.
(h) "Motor fuels" means gasoline and aviation gasoline as defined in Section 27-55-5, other motor fuels as defined in
Section 27-55-303 and oil as defined in Section 27-57-305, except for those "motor fuels" used in electric power
generating plants for the commercial production of electricity.
(i) "Operator" means any person in control of, or having responsibility for, the daily operation of an underground storage
tank.
G) "Owner of an underground storage tank" means:
(i) 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
) In the case of an underground storage tank in use before November 8, 1984, but no longer in use on that date, any
person who owned such tank immediately before the discontinuation of its use.
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(k) "Person" means an individual, trust, firm, joint stock company, federal agency, corporation, state municipality,
commission, political subdivision of a state, any interstate body, a consortium, a joint venture, a commercial entity or the
United States Government.
I) "Regulated substance" means:
(i) Any substance defined in Section 101(14) of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, Public Law No. 96-510, as amended and extended (but not including any substance regulated as a
hazardous waste under Section 17-17-1 et seq., Mississippi Code of 1972); and
(it) Petroleum, including crude oil or any fraction thereof, which is liquid at standard conditions of temperature and
pressure (sixty (60) degrees Fahrenheit and fourteen and seven-tenths (14-7/10) pounds per square inch absolute).
(m) "Release" means any spilling, leaking, emitting, dischanging, escaping, leaching or disposing from an underground
storage tank into groundwater, surface water or subsurface soils.
(n) "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 motor fuels.
(0) "Response action contractor" means a person who has been approved by the commission and is carrying out any
response action, including a person retained or hired by such person to provide services relating to a response action.
(p) "Retailer" means any person other than a bonded distributor who sells motor fuel as defined in this section.
(q) "Substantial compliance" means that an owner or operator of an underground storage tank has registered that tank
with the department, and has made a good-faith effort to comply with the law; and the rules and regulations adopted
pursuant thereto.
(r) "Third-party claim" means any civil action brought or asserted by any person against any owner of any underground
storage tank for damages to person or property which damages are the direct result of a release of motor fuels from an
underground storage tank.
(s) "Underground storage tank" means any one or combination of containers including tanks, vessels, enclosures or
structures together with appurtenances 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 include any:
(1) Farm or residential tanks of one thousand one hundred (1,100) gallons or less capacity used for storing motor fuel for
noncommercial purposes;
(ii) Tanks used for storing heating oil for consumptive use oh the premises where stored;
(iii) Septic tanks;
(iv) Pipeline facilities (including gathering lines regulated under:
1. The Natural Gas Pipeline Safety Act of 1968, Public Law No. 90-481, 49 USC 1671-1684, as amended and extended,
2. The Hazardous Liquid Pipeline Safety Act of 1979, Public Law No. 96-129, 49 USC 2001 et seq., as amended and
extended, or
3. An intrastate pipeline facility regulated under state laws comparable to the provisions of law in Clause 1 or 2 of this
subparagraph);
(v) Surface impoundments, pits, ponds or lagoons;
yi) Storm water or wastewater collection systems;
[vii) Flow-through process tanks;
(viii) Liquid traps or associated gathering lines directly related to oil or gas production and gathering operation;
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(ix) 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;
(x) Other tanks exempted by the Administrator of the Federal Environmental Protection Agency; and
(xi) Piping connected to any of the above exemptions.
(t) "User" means any person who purchases or acquires motor fuels as defined in this section for consumption.
SOURCES: Laws, 1988, ch. 547, Sec. 2; 1989, ch. 346, Sec. 1, eff from and after passage (approved March 12, 1989).
Laws, 1993, ch. 470, Sec. 3, eff from and after July 1, 1993.
Editor's Note-
Section 49-1-1 provides the word "director" shall mean and refer to the Executive Director of the Department of Wildlife,
Fisheries and Parks.
Section 49-2-6 provides that wherever the term "Mississippi Commission on Natural Resources" appears in any law the
same shall mean the Mississippi Commission on Environmental Quality.
Section 49-2-7 provides that wherever the term "Mississippi Department of Natural Resources" appears in any law the
same shall mean the Department of Environmental Quality.
Federal Aspects-
Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Public Law
No. 96-510 is codified as 42 USCS Sec. 9601(14).
The Natural Gas Pipeline Safety Act of 1968, Public Law No. 90-481, 49 USCS Sees. 1671-1684.
The Hazardous Liquid Pipeline Safety Act of 1979, Public Law No. 96-129, 49 USCS Sec. 2001 et seq.
ALR Annotations-
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
SEC. 49-17-405. Groundwater protection fund; duties of executive director; liability of tank
owners; limitation on provisions of chapter and section.
(1) There is hereby created the Mississippi Groundwater Protection Trust Fund, hereinafter referred to as the "fund" to be
administered by the Executive Director of the Department of Natural Resources. The Commission shall adopt
regulations for administering this fund. Whenever in the executive director's determination a release of motor fuels at an
active site may pose a threat to the environment or the public health, safety or welfare, the department shall obligate
monies available in the fund to provide for:
(a) Investigation and assessment of contamination sites;
(b) Restoration or replacement of potable water supplies;
(c) Rehabilitation of contamination sites, which may consist of cleanup of affected soil, groundwater and inland surface
waters, using cost effective alternatives that are technologically feasible and reliable, and that provide adequate
protection of the public health, safety and welfare and minimize environmental damage, in accordance with the site
selection and cleanup criteria established by the commission, except that nothing herein shall be construed to authorize
the commission 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 storage tanks.
(2) Whenever the commission has expended funds from the fund created by Sections 49-17-401 through 49-17-433, me
owner of the underground storage tank shall not be liable to the department for such costs if the owner was in substantial
compliance on the date on which the discharge of the motor fuels which necessitates the cleanup was reported to the
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department. Otherwise owners are responsible for reimbursement and the reimbursed monies shall go back into the
fund. In such circumstances the commission is authorized to take any necessary action to recover these monies from
responsible owners.
>) Any provisions of this section and chapter regarding liability for the costs of clean-up, removal, remediation or
-aoatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules
adopted thereto.
SOURCES: Laws, 1988, ch. 547, Sec. 3, eff from and after July 1, 1988. Laws, 1995, ch. 627, Sec. 7, eff from and after
July 1, 1995
Editor's Note-
Section 49-2-7 provides that wherever the term "Mississippi Department of Natural Resources" appears in any law the
same shall mean the Department of Environmental Quality.
Amendment Notes-
The 1995 amendment added subsection (3)
Cross References-
Deposit of the environmental protection fee on motor fuels into the groundwater protection fund established in this
section and the limits on the use of such funds, see Sec. 49-17-407.
Authority of commission to determine that tank owner is not in compliance with this section if owner fails to pay
regulatory fees for more than three months, see Sec. 49-17-409.
Research and Practice References-
2A Am Jur PI & Pr Forms (Rev), Fraud and Deceit, Form 142.1 (complaint, petition or declaration-for
Images-misrepresentation as to condition of underground gasoline storage system and soil surrounding system).
12A Am Jur PI & Pr Forms (Rev), Garages and Filling and Parking Stations, Form 2.1 (complaint, petition or
declaration-for damages incurred by filling station purchaser to repair leaks in and contamination caused by underground
gasoline storage system-against former filling station owner).
20 Am Jur PI & Pr Forms (Rev), Pollution Control, Form 69.1 (complaint, petition or declaration-by purchaser of gasoline
station-for costs to repair leaks in underground gasoline tank storage system and to replace gasoline-contaminated
soil-against former gasoline station owner).
ALR Annotations-
Tort liability for pollution from underground storage tank. 5 ALR5th 1.
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
SEC. 49-17-407. Environmental protection fee on motor fuels; deposit of fees; limits on use of
fund; third party claims.
(1)
(a) An environmental protection fee of Four-tenths of One Cent (4/10 of 1 cents) per gallon is hereby levied upon any
bonded distributor, as defined by Sections 49-17-401 through 49-17-433, who sells or delivers motor fuels to a retailer or
user in this state.
Every person, other than a bonded distributor, who shall purchase or acquire motor fuels within this state on which the
environmental protection fee has not accrued, shall be liable for the environmental protection fee.
(c) The environmental protection fee shall be imposed only one (1) time on motor fuels sold in the state.
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(d) The environmental protection fee shall be collected by the State Tax Commission and shall be designated separately-
from the excise taxes on fuels.
(e) Any person liable for the environmental protection fee shall be subject to the same requirements and penalti
distributors under the provisions of Section 27-55-301 et seq.
(f) Any person liable for the environmental protection fee shall file a report and remit any fees due at the same time
provided for filing reports under Section 27-55-319 on forms prescribed by the State Tax Commission.
(g) The State Tax Commission is hereby authorized and empowered to promulgate all rules and regulations necessary
for the administration of the environmental protection fee.
(2)
(a) On or before the fifteenth day of each month the environmental protection fees collected during the previous month
shall be deposited into the Mississippi Groundwater Protection Trust Fund established in Section 49-17-405. When the
unobligated balance in the fund reaches or exceeds Ten Million Dollars ($10,000,000.00), the administrator of the fund
shall notify in writing the State Tax Commission no later than the twenty-fifth day of the month to abate the
environmental protection fee. The abatement shall become effective on the last day of the month succeeding the month
in which such notice was given. All environmental protection fees accrued shall be reported and paid.
(b) When the fund balance is reduced below Six Million Dollars ($6,000,000.00), the fee shall again be imposed at the
rate of Four-tenths of One Cent (4/10 of 1 cents) per gallon until such time as the fund shall reach or exceed Ten Million
Dollars ($10,000,000.00). The administrator of the fund shall notify, no later than the twenty-fifth day of the month, the
State Tax Commission to reimpose the environmental protection fee. The imposition of the fee shall become effective
on the first day of the second month succeeding the month in which the notice to reimpose the fee was given.
(3) This fund shall be used for the purposes set forth in Sections 49-17-401 through 49-17-435 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. Any interest ea
on monies in this fund shall remain in this fund.
(4) Monies held in the fund established under Sections 49-17-401 through 49-17-435 shall be used only at an active site
and shall be disbursed in accordance with the commission requirements and as follows:
(a) Payments shall be made to any third party who brings a third-party claim against any owner of an underground
storage tank and the commission as trustee of the Mississippi Groundwater Protection Trust Fund and who obtains a final
judgment in such action which is valid and enforceable in this state against such parties. Payment shall be paid to the
third party upon filing by such party an application with the department attaching the original or a certified copy of the
final judgment.
(b) Payments shall be made in reasonable amounts to approved response action contractors and other parties involved
in the site study and cleanup. Payment shall be made to the party incurring the costs by filing of a sworn application with
the department indicating the fair and reasonable value of the costs of site rehabilitation, subject to the regulations and
limitations as set by the department.
(5) Payments from the fund are limited as follows:
(a) For cleanup purposes, a maximum of One Million Dollars ($1,000,000.00) may be disbursed from the fund for any
one (1) site, per confirmed release occurrence.
(b) For third-party judgments, a maximum of One Million Dollars ($1,000,000.00) may be disbursed from the fund for any
one (1) site, per confirmed release occurrence.
(c) Nothing in Sections 49-17-401 through 49-17-435 shall establish or create any liability or responsibility on the parLof
the department or the State of Mississippi to pay any cleanup costs or third-party claims if the fund created heri
insufficient to do so.
(6) Monies held in the fund established under Sections 49-17-401 through 49-17-435 shall not be used for purchases of
equipment needed to assist in cleanup operations.
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(7) Nothing in Sections 49-17-401 through 49-17-435 shall serve to limit any recovery against an owner of an
underground storage tank in excess of One Million Dollars ($1,000,000.00).
B) Substantial compliance shall in no way be construed to be an absolute defense to civil liability.
(9) This section shall stand repealed from and after July 1,1999.
SOURCES: Laws, 1988, ch. 547, Sec. 4; 1990, ch. 512, Sec. 1, eff from and after July 1, 1990. Laws, 1992, ch. 397,
Sec. 1; 1993, ch. 470, Sec. 1; 1995, ch. 404, Sec. 1, eff from and after July 1, 1995 and shall stand repealed from and
after July 1, 1999
Editor's Note-
Amendment Notes-
The 1995 amendment revised subsection (9) so as to extend the repeal date for the section
Cross References-
Expenditure of trust funds without recourse to reimbursement or recovery from any underground storage tank owner, see
Sec. 49-17-409.
ALR Annotations-
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
Application of statute of limitations in private tort actions based on injury to persons or property caused by underground
flow of contaminants. 11 ALR5th 438.
49-17-409. Reports of contamination incidents; no recourse against tank owner;
(ceptions.
The commission is authorized to establish requirements for the written reporting of motor fuel contamination incidents
from underground storage tanks. All sites involving incidents of motor fuel contamination from underground storage
tanks, where the owner of such tanks is in substantial compliance and files a written report with the commission of such
incident, shall be qualified sites for the expenditure of funds from the Mississippi Groundwater Protection Trust Fund
created by Sections 49-17-401 through 49-17-433. Any funds so expended shall be absorbed at the expense of the fund,
without recourse to reimbursement or recovery from any underground storage tank owner, subject to the following
exceptions:
(a) The provisions of this section shall not apply to any site where the department has initiated any cleanup or civil
enforcement action prior to the passage of Sections 49-17-401 through 49-17-433.
(b) The provisions of this section shall not apply to any site where the department has been denied site access to
implement the provisions of Sections 49-17-401 through 49-17-433.
(c) The provisions of this section shall not be construed to authorize or require reimbursement from the fund for costs
expended prior to the passage of Sections 49-17-401 through 49-17-433.
(d) The commission may determine, in its discretion, that the owner of an underground storage tank is not in substantial
compliance for the purposes of this section and Section 49-17-405, if such owner of an underground storage tank has
been delinquent in the payment of tank regulatory fees for more than three (3) months after such fee is due and payable.
(e) Any provisions of this section and chapter regarding liability for the costs of clean-up, removal, remediation or
Ibatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules
opted thereto.
SOURCES: Laws, 1988, ch. 547, Sec. 5; 1990, ch. 512, Sec. 2, eff from and after July 1, 1990. Laws, 1992, ch. 397,
Sec. 2; 1995, ch. 627, Sec. 8, eff from and after July 1, 1995
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Editor's Note-
Amendment Notes-
The 1995 amendment added paragraph (e)
ALR Annotations-
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
SEC. 49-17-411. Compliance with regulations.
No person shall own, install or operate an underground storage tank without complying with the applicable regulations of
the commission.
SOURCES: Laws, 1988, ch. 547, Sec. 6, eff from and after July 1,1988.
ALR Annotations-
State and local government control of pollution from underground storage tanks. 11
SEC. 49-17-413. Rules and Regulations.
(1) The commission shall promulgate rules and regulations governing underground
not be limited to:
(a) Notification of abandoned underground storage tanks;
(b) Registration of underground storage tanks currently under operation;
(c) Standards for underground storage tanks. The commission shall distinguish in such standards between requirenm^o
appropriate for new tanks, for tanks in existence on the date of the promulgation of the standards and for abandoned
tanks. These standards shall include, but not be limited to, design, construction, installation, release detection, and
compatibility standards;
(d) Release detection, prevention and corrective action;
(e) Tank closure requirements;
(f) Standards for monitoring, testing, reporting and record keeping; and
(g) Requirements for financial responsibility. The commission shall adopt requirements to insure financial responsibility
for corrective action and compensation of third parties required by releases arising from the operation of an underground
storage tank, except that such requirements shall not exceed those established by the United States Environmental
Protection Agency (EPA). Financial responsibility may be established by any one (1) or combination of the following:
insurance; guarantee; surety bond; letter of credit; qualification as a self-insurer; for owners of underground storage tanks
containing motor fuels, use of the Mississippi Groundwater Protection Trust Fund; or any other financial assurance
mechanism which shall be allowed under EPA regulations governing underground storage tanks.
(2) Variances and temporary emergency variances may be granted by the commission from any regulation adopted
pursuant to Sections 49-17-401 et seq.
SOURCES: Laws, 1988, ch. 547, Sec. 7, eff from and after July 1, 1988.
ALR Annotations-
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
ALR5th 388.
storage tanks, which shall include but
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SEC. 49-17-415. Obligations of owners and operators of tanks; powers of commission or
representatives.
:orthe purposes of identifying the source of known or suspected pollution, developing or assisting in the development of
-any regulation, conducting any study, taking corrective action or enforcing the provisions of Sections 49-17-401 through
49-17-433, any owner or operator of an underground storage tank shall, upon the request of any duly authorized
representative of the commission: furnish information relating to such tanks, including tank equipment and contents;
conduct monitoring or testing; and permit the designated representative at all reasonable times to have access to and to
copy all records relating to such tanks. For the purposes of identifying the source of known or suspected pollution,
developing or assisting in the development of any regulation, conducting any study, or enforcing the provisions of
Sections 49-17-401 et seq., any duly authorized representatives of the commission are authorized:
(a) To enter at reasonable times any establishment or place where an underground storage tank is located;
(b) To inspect and obtain samples from any person of any regulated substances contained in such tank; and
(c) To conduct monitoring or testing of the tanks, associated equipment, contents or surrounding soils, air, surface water
or groundwater.
SOURCES: Laws, 1988, ch. 547, Sec. 8, eff from and after July 1, 1988.
Research and Practice References-
38 Am Jur 2d, Gas and Oil Sec. 151.
SEC. 49-17-417. Groundwater protection advisory committee.
There is hereby created the Mississippi Groundwater Protection Advisory Committee ("committee") comprised of a
representative of the Mississippi Manufacturers Association knowledgeable in the management of chemical tanks; the
itate Fire Marshal or his appointed designee; a representative of the Mississippi Municipal Association; a representative
\ the Mississippi Association of Supervisors; a member of the faculty of one (1) of the engineering schools in Mississippi
,/hich is active in the environmental engineering field appointed by the President of the Mississippi Engineering Society;
a representative of the Mid-Continent Oil and Gas Association; a representative of the Mississippi Petroleum Marketers
Association experienced in the management and marketing of petroleum; a representative of the insurance industry
licensed to do business in Mississippi experienced in groundwater pollution insurance; a representative of any company
doing business in Mississippi in the installation and/or the testing of underground storage tanks; and a member of a major
environmental advocacy group. The members of the committee shall be appointed by the Governor from the
above-listed organizations with the exception of the appointment made by the President of the Mississippi Engineering
Society.
It shall be the purpose of this advisory committee to consult with the Commission on Natural Resources on all matters
relating to the Underground Storage Tanks Program.
The advisory committee shall elect one (1) of the committee members to serve as chairman and at the call of the
chairman the committee shall meet not more than four (4) times a year at Jackson, Mississippi, or such other places
within the State of Mississippi designated by the committee.
The members of the advisory committee shall serve without salary, but shall be entitled to receive per diem as provided
in Section 25-3-69, Mississippi Code of 1972, and their actual travel and hotel expenses as provided in Section 25-3-41,
Mississippi Code of 1972, incurred while in the performance of their duties as members of the committee to be paid on
an itemized statement approved by the State Fiscal Management Board. Expenses shall be paid from fees collected in
accordance with Section 49-17-421.
The provisions of this section shall stand repealed from and after July 1, 1994.
kOURCES: Laws, 1988, ch. 547, Sec. 9, eff from and after July 1, 1988, and shall stand repealed from and after July 1,
994.
Editor's Note-
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Section 27-104-1 provides that the term "Fiscal Management Board" shall mean the "Department of Finance and
Administration".
Section 49-2-6 provides that wherever the term "Mississippi Commission on Natural Resources" appears in anv lav*
same shall mean the Mississippi Commission on Environmental Quality.
ALR Annotations-
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
SEC. 49-17-419. Authority of commission to take timely and effective corrective action; use of
funds from pollution emergency fund.
Nothing contained in the Mississippi Underground Storage Tanks Act of 1988 (Sections 49-17-401 through 49-17-433)
shall prevent the commission from requiring any owner of an underground storage tank from taking timely and effective
corrective action.
The commission may use the Pollution Emergency Fund for emergency or remedial cleanup of underground storage tank
leaks when the tank owner will not take timely and effective action. In the event of the necessity for such immediate
remedial or cleanup action, the commission may contract for same and advance funds from the Pollution Emergency
Fund to pay the costs thereof, such advancements to be repaid to the Pollution Emergency Fund upon recovery by the
commission from the tank owner.
SOURCES: Laws, 1988, ch. 547, Sec. 10, eff from and after July 1, 1988.
Research and Practice References-
38 Am Jur 2d, Gas and Oil Sec. 151.
ALR Annotations-
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
Application of requirement in Sec. 107(a) of Comprehensive Environmental Response, Compensation, and Liability Act
(42 USCS Sec. 9607(a)) that private cost-recovery actions be consistent with national contingency plan. 107 ALR Fed
562.
SEC. 49-17-421. Tank regulatory fee.
The commission may assess and collect a tank regulatory fee in an amount sufficient to administer Sections 49-17-401
through 49-17-435 but not to exceed One Hundred Dollars ($100.00) per tank per year from the owner of each
underground storage tank in use in Mississippi on July 1, 1988, or brought into use after that date, as provided in the
Mississippi Underground Storage Tank Act of 1988 (Sections 49-17-401 through 49-17-435). Funds collected shall be
deposited in a special fund and used to administer Sections 49-17-401 through 49-17-435, and shall be expended by an
annual appropriation approved by the Legislature. The tank regulatory fee assessed under this section is a debt due by
the owner of each underground storage tank in use in Mississippi on July 1, 1988, or brought into use after that date. The
tank regulatory fee shall be due July 1 of each year. If any part of the tank regulatory fee is not paid within thirty (30)
days after the due date, a penalty of fifty percent (50%) of the amount due shall accrue at once and be added to the fee,
unless the owner of the underground storage tank demonstrates to the commission that the failure to make timely
payment was unavoidable due to financial hardship or otherwise beyond the control of the owner. Monies collected
under this section shall be deposited in a special fund which is created in the State Treasury. Unexpended amounts
remaining in the special fund at the end of the fiscal year shall not lapse into the General Fund and any interest earned
on amounts in the special fund shall be credited to the special fund by the Treasurer. The fund may receive monies from
any available public or private source, including but not limited to, collection of fees, interest, grants, taxes, public or
private donations and judicial actions. Monies in this special fund shall be expended by annual appropriation aporcuttd
by the Legislature to administer Sections 49-17-401 through 49-17-435.
SECTION 2. This act shall take effect and be in force from and after July 1, 1996.
SOURCES: Laws, 1988, ch. 547, Sec. 11, eff from and after July 1, 1988. Laws, 1993, ch. 470, Sec. 2, eff from and after
July 1, 1993.
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Cross References-
Payment of the expenses of the members of the groundwater protection advisory committee from fees collected in
accordance with this section, see Sec. 49-17-417.
atC. 49-17-423. Commission to administer funds from Leaking Underground Storage Tank
Trust Fund.
The commission shall administer the expenditure of any funds made available from the Leaking Underground Storage
Tank Trust Fund established by the Federal Superfund Amendments and Reauthorization Act of 1986, Public Law No.
99-499, October 17, 1986, Public Law No. 99-563, October 27, 1986, 42 USC Sections 9671-9675, and shall have
authority to promulgate any rules and regulations necessary to administer this program.
SOURCES: Laws, 1988, ch. 547, Sec. 12, eff from and after July 1,1988.
Federal Aspects-
Federal Superfund Amendments and Reauthorization Act of 1986, 42 (JSCS Sees. 9671-9675.
ALR Annotations-
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
SEC. 49-17-425. Disclosure of records, reports, and information.
The disclosure of any records, reports or information obtained pursuant to Sections 49-17-401 et seq. shall be governed
by the Mississippi Public Records Act of 1983, Section 25-61-1 and Section 49-17-39, Mississippi Code of 1972, and the
regulations of the commission promulgated thereunder.
OURCES: Laws, 1988, ch. 547, Sec. 13, eff from and after July 1,1988.
Research and Practice References-
38 Am Jur 2d, Gas and Oil Sec. 151.
SEC. 49-17-427. Proceedings before commission; penalties for violations of Sections
49-17-401 through 49-17-433.
(1) Whenever the commission or an employee thereof has reason to believe that a violation of any provision of this
chapter, or of any order of the commission, or of any regulation promulgated pursuant to this chapter has occurred, the
commission shall initiate proceedings in the same manner as provided in Sections 49-17-31 through 49-17-41,
Mississippi Code of 1972.
(2) Any person found by the commission violating any of the provisions of Sections 49-17-401 through 49-17-433, or any
rule or regulation or written order of the commission shall be subject to a civil penalty of not more than Twenty-five
Thousand Dollars ($25,000.00) for each violation per day, such penalty to be assessed and levied by the commission as
provided in Sections 49-17-1 through 49-17-43, Mississippi Code of 1972.
(3) In determining the amount of any penalty under this chapter, the commission shall consider at a minimum:
(a) The willfulness of the violation;
(b) Any damage to air, water, land or other natural resources of the state or their uses;
t) Costs of restoration or abatement;
;a) Economic benefit as a result of noncompliance;
10
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(e) The seriousness of the violation, including any harm to the environment and any hazard to the health, safety and
welfare of the public;
(f) Past performance history; and
(g) Whether the noncompliance was discovered and reported as the result of a voluntary self-evaluation. If a persun
discovers as a result of a voluntary self-evaluation, information related to noncompliance with an environmental law and
voluntarily discloses that information to the department, commission or any employee thereof, the commission shall, to
the greatest extent possible, reduce a penalty, if any, determined by the commission, except for economic benefit as a
result of noncompliance, to a de minimis amount if all of the following are true:
(i) The disclosure is made promptly after knowledge of the information disclosed is obtained by the person;
(ii) The person making the disclosure initiates the appropriate corrective actions and pursues those corrective actions
with due diligence;
(iii) The person making the disclosure cooperates with the commission and the department regarding investigation of the
issues identified in the disclosure;
(iv) The person is not otherwise required by an environmental law to make the disclosure to the commission or the
department;
(v) The information was not obtained through any source independent of the voluntary self-evaluation or by the
department through observation, sampling or monitoring; and
(vi) The noncompliance did not result in a substantial endangerment threatening the public health, safety or welfare or
the environment.
(4) Any provisions of this section and chapter regarding liability for the costs of clean-up, removal, remediation or
abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules
adopted thereto.
SOURCES: Laws, 1988, ch. 547, Sec. 14, eff from and after July 1, 1988. Laws, 1995, ch. 627, Sec. 9, eff from and aiwr
July 1, 1995
Editor's Note-
Amendment Notes-
The 1995 amendment added subsections (3) and (4).
ALR Annotations-
State and local government control of pollution from underground storage tanks. 11 ALR5th 388.
SEC. 49-17-429. Certification to install, alter or remove underground storage tanks.
No person may install, alter or remove an underground storage tank after July 1, 1990, without first having been certified
by the Commission on Natural Resources. The commission shall adopt rules and regulations setting forth the
requirements for such certification which shall include but not be limited to a certification examination.
SOURCES: Laws, 1988, ch. 547, Sec. 15, eff from and after July 1, 1988.
Editor's Note-
Section 49-2-6 provides that wherever the term "Mississippi Commission on Natural Resources" appears in any h""
same shall mean the Mississippi Commission on Environmental Quality.
Research and Practice References-
11
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38 Am Jur2d, Gas and Oil Sec. 151.
SEC. 49-17-431. Appeal rights.
Any person aggrieved by any decision by the commission or the director relating to any provision of Sections 49-17-401
through 49-17-433 shall have the right to appeal as provided in Section 49-17-41, Mississippi Code of 1972.
SOURCES: Laws, 1988, ch. 547, Sec. 16, eff from and after July 1,1988.
SEC. 49-17-433. Savings clause.
The provisions of Sections 49-17-401 through 49-17-433 are severable. If any part of sections 49-17-401 through
49-17-433 is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
SOURCES: Laws, 1988, ch. 547, Sec. 17, eff from and after July 1, 1988.
SEC. 49-17-435. Annual report on status of underground storage tank program.
Before November 15 of each year, the department shall report to the appropriate environmental committees of the
Senate and House of Representatives on the status of the Underground Storage Tank Program and the Groundwater
Protection Trust Fund. The report shall include at a minimum any recommendations for improvement of the program
and for ensuring the soundness of the fund and, to the extent practicable, an assessment of any changes in the retail
price of motor fuels caused by the environmental protection fee.
SOURCES: Laws, 1993, ch. 470, Sec. 4; 1995, ch. 404, Sec. 2, eff from and after July 1, 1995
Editor's Note-
Amendment Notes-
ne 1995 amendment rewrote this section
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UNDERGROUND STORAGE TANK
REGULATIONS
MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY
OFFICE OF POLLUTION CONTROL
Underground Storage Tank Branch
P. O. Box 10385
Jackson, Mississippi 39289-0385
(601) 961-5171
Adopted by the Commission on Environmental Quality on March 22, 1989
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For the reasons set out in the
Preamble. Pan 280 of Title 40 of
the Code of Federal Regulations'
is revised to read as follows:
Part 280 -- TECHNICAL
STANDARDS AND CORRECTIVE
ACTION REQUIREMENTS 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 Systems:
Design, Construction, Installation
and Notification
Sec.
280.20 Performance standards
for new UST systems.
280.21 Upgrading of existing
UST systems.
280.22 Notification
requirements.
Subpart C - General Operating
Requirements
Sec.
280.30 Spill and overfill control.
280.31 Operation and
maintenance of corrosion
protection.
280.32 Compatibility.
280.33 Repairs allowed.
280.34 Reporting and
recordkeeping.
Subpart D •• Release Detection
Sec.
280.40 General requirements for
all UST systems.
280.41 Requirements for
petroleum UST systems.
280.42 Requirements for
hazardous substance UST systems.
280.43 Methods of release
detection for tanks.
280.44 Methods of release
detection for piping.
280.45 Release detection
recordkeeping.
Subpart E Release Reporting,
Investigation, and Confirmation
Sec.
280.50 Reporting of suspected
releases.
280.51 Investigation due to off-
site impacts.
280.52 Release investigation and
confirmation steps.
280.53 Reporting and cleanup of
spills and overfills.
Subpart F - Release Response and
Corrective Action for UST Systems
Containing Petroleum or Hazardous
Substances
Sec.
280.60 General.
280.61 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 -- Out-of-Service UST
Systems and Closure
280.70 Temporary closure.
280.71 Permanent closure and
changes-in-service.
280.72 Assessing the site at
closure or change-in-service.
280.73 Applicability to previously
closed UST systems.
280.74 Closure records.
Appendix 1 Notification fc
Underground Storage Tan*s
(Form)
Appendix 2 List of Agencies
Appendix 3 Statement tor
Shipping Tickets and Invoices
Authority: 42 USC 6912.
6991, 6991 (a). 6991(b).
6991(c). 6991(d), 6991 (el.
6991(f), 6991(h).
Subpart A •• Program Scope
and Interim Prohibition
S 280.10 Applicability.
(a) The requirements
of this Pan apply to all owners
and operators of an UST
system as defined in $ 280.1 2
except as otherwise provided
in paragraphs (b), (c), and id)
of this section. Any UST
system listed in paragraph >ci
of this section must meet tne
requirements of § 280.11.
(b) The following UST
systems are excluded from the
requirements of this Pan:
(1) Any 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.
(2) Any wastewater
treatment tank system that is
part of a wastewater
treatment facility regulated
under Section 402 or 307(b)
of the Clean Water Act.
(3) Equipment or
machinery that contains
regulated substances for
1
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operational purposes such as
hydraulic lift tanks and electrical
equipment tanks.
(4) Any UST system
whose capacity is 1 10 gallons or
less.
(5) Any UST system that
contains a ifl minimis
concentration of regulated
substances.
(6) Any emergency spill
or overflow containment UST
system that is expeditiously
emptied after use.
Ic) Deferrals.. Subparts
B, C. 0. E. and G do not apply to
any of the following types of UST
systems:
(1) Wastewater
treatment tank systems;
(2) Any UST systems
containing radioactive material
that are regulated under the
Atomic Energy Act of 1954 (42
USC 201 1 and following);
(3) 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;
(4) Airport hydrant fuel
distribution systems; and
(5) UST systems with
field-constructed tanks.
Id) Deferrals. Subpart D
does not apply to any UST
system that stores fuel soiely for
use by emergency power
generators.
§ 280.11 Interim Prohibition for
deferred UST systems.
(a) No person may install
an UST system listed in $
280.10(c) for the purpose of
storing regulated substances unless
the UST system (whether of singie-
or double-wall construction):
(1) Will prevent releases
due to corrosion or structural failure
for the operational life of the UST
system;
(2) Is cathodically
protected against corrosion,
constructed of 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
(3) Is constructed or lined
with material 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 corrosion
expert not to be corrosive enough
to cause it to have a release due to
corros.on during its operating life.
Owners and operators must
maintain records that demonstrate
compliance with the requirements
of this paragraph for the remaining
life of the tank.
[Note: The National
Association of Corrosion Engineers
Standard
RP-02-85, "Control of External
Corrosion on Metallic Buried,
Partially Buried, or Submerged
Liquid Storage Systems," may be
used as guidance for complying
with paragraph lb) of this section.]
$ 280.12 Definitions.
'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 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 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 an
UST.
"Belowground release"
means any release to the
subsurface of the land and to
ground water. 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.
"Beneath the surface
of the ground" means beneath
the ground surface or
otherwise covered with
earthen materials.
"Cathodic protection"
is a technique to prevent
corrosion of a metal surface
by making that surface the
cathode of an electrochemic?
cell. For example, a tank
system can be cathodically
2
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jrotected through the application
}f either galvanic anodes or
impressed current.
"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 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.
"CERCLA" means the
Comprehensive Environmental
Response, Compensation, and
Liability Act of 1980, as
amended.
"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.
"Connected piping"
means all underground pipinQ
including valves, elbows, joints,
flanges, and flexible connectors
anached 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 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.
'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).
'Electrical equipment*
means underground equipment that
contains dielectric fluid that is
necessary for the operation of
equipment such as transformers
and buried electrical cable.
'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.
"Existing tank system*
means a tank 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
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 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.
"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.
"Flow-through process
tank* is a tank that forms an
integral pan 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
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storage of finished products or
byproducts from the production
process.
"Free product" refers to a
regulated substance that is
present as a nonaqueous 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
operations.
"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
1980 (but not including any
substance 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
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.
"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.
"Implementing agency"
means EPA, or, in the case of a
state with a program approved
under section 9004 (or pursuant to
a memorandum of agreement with
EPA), the designated state or Local
agency responsible for carrying out
an approved UST program.
"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.
"Maintenance" means the
normal operational upkeep to
prevent an underground storage
tank system from releasing
product.
"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.
"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
December 22, 1988. (See also
"Existing Tank System.")
"Noncommercial purposes'
with respect to motor fuel means
not for resale.
"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.
"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 control 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 environmen
"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,
municipality, commission,
political subdivision of a state,
or any interstate bodyj
"Person" also includes i
consortium, a joint venture, a
4
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commercial entity, and the United
States Government.
"Petroleum UST system* - .
means an underground storage
tank system that contains
petroleum or a mixture of
petroleum with dfl minimis
quantities of other regulated
substances. Such systems
include those containing motor
fuels, jet fuels, distillate fuel oils,
residual fuel oils, lubricants,
petroleum solvents, and used
oils.
"Pipe" or "Piping" means
a hollow cylinder or tubular
conduit that is constructed of
non-earthen materials.
'Pipeline facilities
(including gathering lines)" are
new and existing pipe rights-of-
way and any associated
equipment, facilities, or buildings.
'Regulated substance*
means
la) ar 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), and
(b) petroleum, including
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 'regulated
substance* 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.
"Release* means any
spilling, leaking, emitting,
discharging, escaping, leaching or
disposing from an UST into ground
water, surface water or subsurface
soils.
"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.
"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 Amendments and
Reauthorization Act of 1986.
'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.
"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.
" 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.
"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.
"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.
" Underground release*
means any belowground
release.
"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
5
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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:
(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 <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 seq.I, or
(3) Which is an intrastate
pipeline facility regulated under
state laws comparable to the
provisions of the law referred to
in paragraph (d)(1) or (d)(2) of
this definition;
( e ) Surface
impoundment, pit, pond, or
lagoon;
(f) Storm-water or
wastewater collection system;
tank;
|g) Flow-through process
(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* or "UST" does not include
any pipes connected to any tank
which is described in paragraphs (a)
through (i) of this definition.
'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.
"UST system" or "Tank
system" means an underground
storage tank, connected
underground piping, underground
ancillary equipment, and
containment system, if any.
"Wastewater treatment
tank" means a tank that is
designed to receive and treat an
influent wastewater through
physical, chemical, or biological
methods.
(h) Liquid trap or
associated gathering lines directly
related to oil or gas production
and gathering operations; or
Subpart B •• UST Systems:
Design, Construction,
Installation and Notification
S 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 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
[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-
Reinf orced Plastic
Underground Storage Tanks
for Petroleum Products";
Underwriter's Laboratories of
Canada CAN4-S615-M83,
"Standard for Reinforced
Plastic Underground Tanks for
Petroleum Products"; or
American Society of Testing
and Materials Standard
04021-86, "Standard
6
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Specification for Glass-Fiber-
Reinforced Polyester
Underground Petroleum Storage
Tanks."]
(2) The tank is
constructed of steel and
cathodically protected in the
following manner:
(i) The tank is coated
with a suitable dielectric material;
I i i) Field-installed
cathodic protection systems are
designed by a corrosion expert;
(iii) Impressed current
systems are designed to allow
determination of current
operating status as required in 5
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 agency; or
[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 Protection
of Underground Steal Storage
Tanks";
(B) Underwriters
Laboratories Standard 1746.
"Corrosion Protection Systems
for Underground Storage Tanks';
(C) Underwriters
Laboratories of Canada CAN4-
S603-M85, 'Standard for Steel
Underground Tanks for
Flammable and Combustible
Liquids," and CAN4-G03.1-M85.
"Standard for Galvanic Corrosion
Protection Systems for
Underground Tanks for Flammable
and Combustible Liquids,* and
CAN4-S63 1-M84, 'Isolating
Bushings for Steel Underground
Tanks Protected with Coatings and
Galvanic Systems'; or
(D) National Association of
Corrosion Engineers Standard RP-
02-85, 'Control of External
Corrosion on Metallic Buried,
Partially Buried, or Submerged
Liquid Storage Systems," and
Underwriters Laboratories Standard
58, 'Standard for Steel
Underground Tanks for Flammable
and Combustible 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
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 protection 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 paragraph
(a)(4)(i) of this section for the
remaining lifa of the tank; or
(5) The tank
construction and corrosion
protection are determined by
the implementing agency 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 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 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
[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
7
-------
UlC-107, "Glass Fiber Reinforced
Plastic Pipe and Fittings 'or
Flammable Liauids": and
(D) Underwriters
Laboratories of Canada Standard
CAN 4-S633-M81. "Flexible
Underground Hose Connectors. * ]
(2) The piping is
constructed of steel and
cathodically protected in the
following manner:
-------
nationally recognized association
or independent testing laboratory
and tn accordance with the
manufacturer's instructions.
(Note: 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:
-------
The first tightness test must be
conducted prior to installing the
cathodic protection system. Thp
second tightness test must be
conducted between three (3) and
si* 16) months following the first
operation of the cathodic
protection system; or
(iv) The tank is assessed
for corrosion holes by a method
that is determined 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 cathodic
protection. A tank may be
upgraded by both internal lining
and cathodic protection if:
(i) The lining is installed
in accordance with the
requirements of 5 280.33; and
(ii) The cathodic
protection system meets the
requirements of
§ 280.20(aM2)(ii), (iii). and (iv).
(Note: The following
codes and standards may be
used to comply with this section:
(A) American Petroleum
Institute Publication 1631,
"Recommended Practice for the
Interior Lining of Existing Steel
Underground Storage Tanks';
(B) National Leak
Prevention Association Standard
631, "Spill Prevention, Minimum
10 Year Life Extension of Existing
Steel Underground Tanks by
Lining Without the Addition of
Cathodic Protection*;
(C) National Association of
Corrosion Engineers Standard RP-
02-85, "Control of External
Corrosion on Metallic Buried,
Partially Buried, or Submerged
Liquid Storage Systems"; and
(D) American Petroleum
Institute Publication 1632,
"Cathodic Protection of
Underground Petroleum Storage
Tanks and Piping Systems.']
-------
its form be used in lieu of the
form presented 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 appropriate
agencies or departments
identified in Appendix II of this
Part 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.
(d) Notices required to be
submined 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
lor 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 notification
form compliance with the
following requirements:
(1) Installation of
tanks and piping under {
280.20(e);
(2) C a t h o d i c
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 installer
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,
1 988, 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 III of this part may be
used to comply with this
requirement.
Subpart C •• General Operating
Requirements
$ 280.30 Spill and overfill
control.
(a) 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.
[Note: The transfer
procedures described in
National Fire Protection
Association Publication 385
may be used to comply with
paragraph (a) of this section.
Further guidance on spill and
overfill prevention appears in
American Petroleum Institute
Publication 1621.
'Recommended Practice for
Bulk Liquid Stock Control at
Retail Outlets," and National
F i Protection Association
Standard 30, "Flammable and
Combustible Liquids Code.*]
(b) The owner and
operator must report,
investigate, and clean up any
spills and overfills in
accordance with S 280.53.
11
-------
§ 280.31 Operation and
maintenance of corrosion
protection.
All owners and operators
of 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 or according to
another reasonable time frame
established by the implementing
agency; and
(2) Inspection criteria.
The criteria that are used to
determine that cathodic
protection is adequate as required
by this section must be in
accordance with a code of
practice developed by a
nationally recognized association.
[Note: National
Association of Corrosion
Engineers Standard RP-02-85,
"Control of External Corrosion on
Metallic Buried. Partially Buried, or
Submerged Liquid Storage
Systems." may be used to comply
with paragraph (b)(2) of this
section.]
(c) UST systems with
impressed current cathodic
protection systems must also be
inspected every 60 days to ensure
the equipment is running properly.
(d) For UST systems using
cathodic protection, reoords of the
operation of the cathodic protection
must be maintained (in accordance
with i 280.34) 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
paragraph (c) of this section; and
(2) The results of testing
from the last two inspections
required in paragraph (b) of this
section.
i 280.32 Compatibility.
Owners and operators must
use an UST system made of or
lined with materials that are
compatible with the substance
stored in the UST system.
[Note: Owners and
operators storing alcohol blends
may use the following codes to
comply with the requirements of
this section:
(A) American Petroleum
Institute Publication 1626. "Storing
and Handling Ethanol and Gasoline-
Ethanol Blends at Distribution
Terminals and Service Stations";
and
( B) America^
Petroleum institute Publication
1627, "Storage and Handling
of Gasoline-
Methanol/Cosoivent Blends at
Distribution Terminals and
Service Stations.']
S 280.33 Repairs allowed.
Owners and operators
of UST systems must ensure
that 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 fol-
lowing 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.
[Note: The following
codes and standards may be
used to comply with
paragraph (a) of this section:
National Fire Protection
Association Standard 30.
"Flammable and Combustible
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 Underground
Storage Tanks"; and National
Leak Prevention Association
Standard 631, "Spill
Prevention, Minimum 10 Year
Life Extension of Existing Steel
Underground Tanks by Lining,
Without the Addition or
Cathodic Protection."]
12
-------
(b) Repairs to fiberglass-
reinforced plastic tanks may 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
finings 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 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 recognized
association or an independent
testing laboratory; or
(2) The repaired portion
of the UST system is monitored
monthly for releases 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.
•) 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.
i 280.34 Reporting and
recordkeeping.
Owners and operators of
UST systems must cooperate fully
with inspections, monitoring and
testing conducted by the
implementing agency, as well as
requests for document submission,
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 (5
280.20(e));
(2) Reports of all releases
including suspected releases (§
280.50), spills and overfills (§
280.53), and confirmed releases ($
280.61);
(3) Corrective actions
planned or taken including initial
abatement measures (§ 280.62),
initial site characterization (i
280.63), free product removal
(§ 280.64), investigation of soil
and ground-water cleanup (5
280.65), and corrective action
plan ($ 280.66); and
(4) A notification
before permanent closure or
change-in-service (5 280.71).
Owners and operators must
maintain the following
information:
(1) A corrosion
expert's analysis of site
corrosion potential if corrosion
protection equipment is not
used (5 280.20(a)(4); §
280.20(b)(3)).
(2) Documentation of
operation of corrosion
protection equipment
(5 280.31);
(3) Documentation of
UST system repairs (5
280.33(f));
(4) Recent compliance
with release detection
requirements (S 280.45); and
(5) Results of the site
investigation conducted at
permanent closure (5 280.74).
(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
implementing agency; or
(2) At a readily
available alternative site and
be provided for inspection to
the implementing agency upon
request.
13
-------
(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.
(Note: The recordkeeping and
reporting requirements listed in
this section have been approved
by the Office of Management and
Budget and have been assigned
0MB Control No. 2050-0068.)
Subpart D -- Release Detection
S 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 condition; and
( 3 ) Meets the
performance requirements in
§ 280.43 or 280.44, 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 § 280.43(b), (c), and (d)
or 280.44(a) and (b) with a
probability of detection of 0.95 and
a probability of false alarm of 0.05.
(b) When a release
detection method operated in
accordance with the performance
standards in § 280.43 and $
280.44 indicates a release may
have occurred, owners and
operators must notify the
implementing agency in accordance
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 PHASWN
~F
BnricpwmTPr
Vht
fyvMs
(by nil—hm
¦— itowi
•Itlmy
Utin l« n^iirtd
Instilled
S89
890
m
«2
BB3
n an
RD
P
m
d
BID - X
P/RD
P
RD
iin-71
P
RD
aao-«
P
RD
Nf« itftr Dbi mhIim- ZD Immmrfintmfy
P - Mutt begin release detection for all
preaaunzed piping in accordance with Sec.
280.41(b)(1) and Sec. 280.42(b)(4).
RD - Mult begin release detection for tanks
and suction piping in accordarvca with Sac.
280.41(a), Sec. 280.41(b)(2). and Sec.
280.42
(d) An existing UST system that
cannot apply a method of release
detection that complie with the
requirements 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.
S 280.41 Requirements for
petroleum UST systems.
Owners and operators
of petroleum UST 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 $ 280.43 IdMh)
except that:
(1) UST systems that
meet the performance
standards in $ 280.20 or
5 280.21, and the monthly
inventory control requirements
in 5 280.43(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 S 280.20 or §
280.21 may use monthly
inventory controls (conducted
in accordance with
$ 280.43(a) or (b)) and annual
tank tightness testing
(conducted in accordance with
5 280.43(c)) until December
22. 1998, when the tank
must be upgraded under
14
-------
5 280.21 or permanently closed
under § 280.71; and
(31 Tanks with capacity
of 550 gallons or less may use
weekly tank gauging (conducted
in accordance with S 280.43(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:
(1) Be equipped with an
automatic line leak detector
conducted in accordance with
i 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
4 280.44(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 5 280.44(b), or use a
monthly monitoring method
conduct in accordance with
5 280.44(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;
(iii) Only one check valve is
included in each suction line;
(iv) The check valve is
located directly below and as close
as practical to the suction pump;
and
(v) A method is provided
that allows compliance with
paragraphs fb)(2Hii)-liv) of this
section to be readily determined.
S 280.42 Requirements for
hazardous substance UST systems.
Owners and operators of
hazardous substance UST systems
must provide release detection that
meets the following requirements:
(al Release detection at
existing UST systems must meet
the requirements for petroleum UST
systems in 5 280.41. By
December 22. 1998, all existing
hazardous substance UST systems
must meet the release detection
requirements for new systems in
paragraph (b) of this section.
(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
(iii) Be checked for
evidence of a release at least
every 30 days.
(Note: The provisions
of 40 CFR 265.1 93,
Containment and Detection of
Releases, may be used to
comply with these
requirements.)
(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 xhe
largest tank within its
boundary;
lii) Prevent the
interference of precipitation 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 regulated
substances).
15
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(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-wailed pipe).
In addition, underground piping
that conveys regulated
substances under pressure must
be equipped with an automatic
line leak detector in accordance
with 5 280.44(a).
(5) Other methods of
release detection may be used if
owners and operators:
(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 allowed in 5 S
280.43(b)-(h) can detect a
release of petroleum;
(ii) Provide information to
the implementing agency 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 implementing agency to use
the alternate release detection
method before the installation
and operation of the new UST
system.
S 280.43 Methods of release
detection for tanks.
Each method of release
detection for tanks used to meet
the requirements of 5 280.41 must
be conducted in accordance with
the following;
(~) Inventory control.
Product inventory control (or
another test of 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;
(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 product
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, "Recommended
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
oauoino. 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:
16
-------
¦m
• 'M
460
|
«r
• 2oo
' 3
7
' 00'
at
; mo
Jm>arw
(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 5 280.43(a).
Tanks of greater than 2,000
gallons nominal capaci.ty 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 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.
(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:
11) 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 lor
another test of equivalent
performance) is conducted in
accordance with the requirements
of 5 280.43(a).
le) 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 diffusion of vapors
from releases into the excavation
area;
(21 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;
13) The measurement of
vapors by the monitoring device is
not rendered inoperative by the
ground water, rainfall, or soil
moisture or other known
interferences so that a release
could go undetected for more than
30 days;
(4) The level of background
contamination in the excavation
zone will not 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 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;
(6) In the UST
excavation zone, the site is
assessed to ensure compliance
with the requirements in
paragraphs le)(1)-(4) of this
section 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;
and
(7) Monitoring wells
are clearly marked and
secured to avoid unauthorized
access and tampering.
If) Ground-water
monitoring. Testing 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
soiKsl 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 monitoring well casing
must be designed to prevent
migration of natural soils or
filter pack into the well and to
allow entry of regulated
17
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and low ground-water conditions;
(4) Monitoring wells shall
be sealed from the ground
surface to the too of the filter
pack;
15) Monitoring wells or
devices intercept the excavation
zone or are as close to it as is
technically feasible;
16) 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 ground water in the
monitoring wells;
(71 Within and
immediately below the UST
system excavation zone, rhe site
is assessed to ensure compliance
with the requirements in
paragraphs (f)(1)-(5) of this
section and to establish 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 unauthorized 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,
constructed and installed to
detect a leak from 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;
[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 secondary 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 artificially constructed
material that is sufficiently thic£
and impermeable lat least 10
cm/sec for the regulated substance
stored) to direct a release to the
monitoring porn and permit its detBcbon,
(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
allowing a release to pass through
undetected;
liii) 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;
liv) 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;
lv) 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 unauthorized
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
combination 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 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
paragraphs (c)-(h) of this
section. In comparing
methods, the implementing
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 >*¦
approved, the owner a|
18
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operator must comply with any
conditions imposed by the
implementing agency on its use
to ensure the protection of
human health and .the
environment.
S 280.44 Methods of release
detection for piping.
Each method of release
ietection for piping used to meet
:he requirements of $ 280.41
must be conducted in accordance
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 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 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
5 280.43(eMh) may be used if
they are designed to detect a
release from any portion of the
underground piping that routinely
contains regulated substances.
i 280.45 Release detection
recordkeeping.
All UST system owners and
operators must maintain records in
accordance with j 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
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 implementing
agency, from the date of
installation;
(b) The results of any
sampling, testing, or monitoring
must be maintained for at least 1
year, or for another reasonable
period of time determined by the
implementing agency, except thai
the results of tank tightness testing
conducted in accordance with i
280.43(c) must be retained until
the next test is conducted; and
(c) Wrinen documentation
of all calibration, maintenance, and
repair of release detection
equipment permanently located on-
site must be maintained for at least
one year after the servicing work is
completed, or for another
reasonable time period determined
by the implementing agency. 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.
Subpart E -- Release
Reporting, Investigation, and
Confirmation
§ 280.50 Reporting of
suspected releases.
Owners and operators
of UST systems must report
to the implementing agency
within 24 hours, or another
reasonable time period
specified by the implementing
agency, and follow the
procedures in S 280.52 for
any of the following
conditions:
(a) The discovery by
owners and operators 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,
basements, sewer and utility
lines, and nearby surface
water).
lb) Unusual operating
conditions observed by
owners and operators (such as
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 system
equipment is found to be
defective but not leaking, and
is immediately repaired or
replaced; and,
(c) Monitoring
results from a release
detection method required
under I 280.41 and i 280.42
that indicate a release may
have occurred unless:
(1) The monitoring
device is found to be
19
-------
defective, and is immediately
repaired, 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.
S 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 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
observed by the implementing
agency or brought to its attention
by another parry.
§ 280.52 Release investigation
and confirmation steps.
Unless corrective action is
initiated in accordance with
Subpart F, owners and operators
must immediately investigate and
confirm all suspected releases of
regulated substances requiring
reporting under J 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 operators must conduct tests
(according to the requirements
for tightness testing in
§ 280.43(c) and 5 280.44(b))
that determine whether a leak
exists in that portion of the tank
that routinely contains 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 delivery piping
indicate that a leak exists.
(2) 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.
(3) Owners and operators
must conduct a site check as
described in paragraph (b) of this
section 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) Site check. 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
ground water, and other factors
appropriate for identifying the
presence and source of the release.
(1) If the test results for
the excavation 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 excavation zone or the
UST site do not indicate that a
release has occurred, further
investigation is not required
S 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 following
cases:
(1) Spill or overfill of
petroleum that results in a
release to the environment
that exceeds 25 gallons or
another reasonable amount
specified by the implementing
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 302).
(b) 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
implementing agency, and a
spill or overfill of a hazardous
substance that is less than the
20
-------
reportable quantity- If cleanup
cannot be accomplished within
24 hours, or another reasonable
time period established by the
implementing agency, owners
and operators must immediately
notify the implementing agency.
[Note: A release of a
hazardous substance equal to or
m 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 1980 (40 CFR
302.6) and to appropriate state
and local authorities under Title III
of the Superfund Amendments
and Reauthorization Act of 1986
(40 CFR 355.40).J
Subpart F -- Release Response
and Corrective Action for UST
Systems Containing Petroleum or
Hazardous Substances
S 280.60 General.
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 this
subpart except for USTs
excluded under i 280.10(b) and
UST systems subject to RCRA
Subtitle C corrective action
requirements under section
3004(u) of the Resource
Conservation and Recovery Act,
as amended.
$ 280.61 Initial response.
Upon confirmation of a
release in accordance with
$ 280.52 or after a release from
the UST system 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
implementing agency:
(a) Report the release to
the implementing 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, explosion, and vapor hazards.
S 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
belowground releases and prevent
further migration of the released
substance into surrounding 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 excavation zone and
entered into subsurface structures
(such as sewers or basements);
(4) 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 state
and local requirements;
15) Measure for the
presence of a release where
contamination is most likely to
be present at the UST site,
unless the presence and
source of the release have
been confirmed in accordance
with the site check required
by 5 280.52(b) or the closure
site assessment 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
backfill, depth to ground water
and other factors as
appropriate for identifying the
presence and source of the
release; and
(6) Investigate to
determine the possible
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 confirmation, or
within another reasonable
period of time determined by
the implementing agency,
owners and operators must
submit a report to the
implementing agency
summarizing the initial
abatement steps taken under
paragraph (a) of this section
21
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and any resulting information or data.
§ 280.63 Initial site
characterization.
(at Unless directed to do
otherwise by the implementing
agency, owners and operators
must assemble information 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 5 280.61. 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 populations, water
quality, use and approximate
locations of wells potentially
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 investigations 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 confirmation or another
reasonable period of time
determined by the implementing
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 applicability
and technical adequacy, or in a
format and according to the
schedule required by the
implementing agency.
S 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
maximum extent practicable as
determined by the implementing
agency while continuing, as
necessary, any actions initiated
under $5 280.61 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 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 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;
(2) The estimated
quantity, type, and thickness
of free product observed or
measured in wells, boreholes,
and excavations;
(3) The type of free
product recovery system used;
(4) Whether any
discharge will take place oni
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,
any 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.
§ 280.65 Investigations for
soil and ground-water cleanup.
(a) In order to
determine the full extent and
location of soils contaminated
by the release and tF
presence and concentration
22
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of dissolved product
contamination in the ground
water, owners and operators
must conduct investigations of
the release, the release site, anft
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);
12) Free product is found
to need recovery in compliance
with S 280.64;
(3) There is evidence
that contaminated soils may be in
contact with ground water (e.g.,
as found during conduct of the
initial response measures or
investigations required under $ $
280.60 through 280.64); and
(4) The implementing
agency requests 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 submit the information
collected under paragraph (a) of
this section as soon as
practicable or in accordance with
a schedule established by the
implementing agency.
§ 280.66 Corrective action plan.
(a) At any point after
reviewing the information
submitted in compliance with $
280.61 through $ 280.63, the
implementing agency may require
owners and operators to submit
additional information 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
according to a schedule and format
established by the implementing
agency. Alternatively, owners and
operators may, after fulfilling the
requirements of § 280.61 through
5 280.63, choose to submit a
corrective action plan for
responding to contaminated soil
and ground water. 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
implementing agency, and must
modify their plan as necessary to
meet this standard.
lb) The implementing
agency will approve 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
implementing agency should
consider the following factors as
appropriate:
(1) The physical and
chemical characteristics of the
regulated substance, including its
toxicity, persistence, and potential
for migration;
(2) The hydrogeologic
characteristics of the facility and
the surrounding area;
(3) The proximity, quality,
and current 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
implementing agency, owners
and operators must implement
the plan, including
modifications to the plan made
by the implementing agency.
They must monitor, evaluate,
and report the results of
implementing the plan in
accordance with a schedule
and in a format established by
the implementing agency.
(d) Owners and
operators may, in the interest
of minimizing environmental
contamination and promoting
more effective 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 imposed by the
implementing agency,
including halting cleanup or
mitigating adverse
consequences from cleanup
activities; and
(3) Incorporate these
self-initiated cleanup measures
in the corrective action plan
that is submitted to the
implementing agency for
approval.
23
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§ 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 households,
or personal contacts by field
staff.
(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 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 implementation
of an approved corrective action
plan does not achieve the
established cleanup levels in the
plan and termination of that plan
is under consideration by the
implementing agency.
Subpart G -- Out-of-Service UST
Systems and Closure
S 280.70 Temporary closure.
(a) When an UST system is
temporarily closed, owners and
operators must continue operation
and maintenance of corrosion
protection in accordance with
§ 280.31, and any release
detection in accordance with
Subpart D. Subparts E and F 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.
(b) When an UST system is
temporarily closed for 3 months or
more, owners and operators must
also comply with the following
requirements:
(1) Leave vent lines open
and functioning; and
(2) 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 5 280.20
for new UST systems or the
upgrading requirements in
5 280.21, except that the spill and
overfill equipment requirements do
not have to be met. Owners and
operators must permanently close
the substandard UST systems at
the end of this 12-month
period in accordance with
45 280.71-280.74. unless the
implementing agency provides
an extension of the 12-month
temporary closure period.
Owners and operators must
complete a site assessment in
accordance with i 280.72
before such an extension can
be applied for.
S 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 (bl and (c) of this
section, or within another
reasonable time period
determined by the
implementing agency, owners
and operators 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 assessment of
the excavation zone under
S 280.72 must be performed
after notifying the
implementing agency but
before completion of the
permanent closure or a
change-in-service.
-------
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 § 280.72.
[Note: The following
cleaning and closure procedures
may be used to comply with this
section:
(A) American Petroleum
institute Recommended Practice
1604, "Removal and Disposal of
Used Underground Petroleum
Storage Tanks';
(B) American Petroleum
Institute Publication 2015,
'Cleaning Petroleum Storage
Tanks";
(CI American Petroleum
Institute Recommended Practice
1631, "Interior Lining of
Underground Storage Tanks,"
may be used as guidance for
compliance with this section; and
(Dl The National Institute
for Occupational Safety and
Health "Criteria for a
Recommended
Standard...Working in Confined
Space* may be used as guidance
for conducting safe closure
procedures at some hazardous
substance tanks.]
5 280.72 Assessing the site at
closure or change-in-service.
(a) 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. 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 ground water,
and other factors appropriate for
identifying the presence of a
release. The requirements of this
section are satisfied if one of the
external release detection methods
allowed in § 280.43(e) and (f) is
operating in accordance with the
requirements in $ 280.43 at the
time of closure, and indicates no
release has occurred.
(bl If contaminated soils,
contaminated ground water, or free
product as a liquid or vapor is
discovered under paragraph (a) of
this section, or by any other
manner, owners and operators
must begin corrective action in
accordance with Subpart F.
S 280.73 Applicability to
previously closed UST
systems.
When directed by the
implementing agency, the
owner and operator of an UST
system permanently closed
before December 22, 1988,
must assess the excavation
zone and close the UST
system in accordance with
this Subpart if releases from
the UST may, in the judgment
of the implementing agency,
pose a current or potential
threat to human health and
the environment.
S 280.74 Closure records.
Owners and operators
must maintain records in
accordance with $ 280.34
that are capable of
demonstrating compliance
with closure requirements
under this Subpart. The
results of the excavation zone
assessment required in
S 280.72 must 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;
lb) By the current
owners and operators of the
UST system site; or
(cl By mailing these
records to the implementing
agency if they cannot be
maintained at the closed
facility.
25
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STATE OF MISSISSIPPI
NOTIFICATION FOR UNDERGROUND STORAGE TANKS
tr
' USTs
in
Miss.
Return Miss. Dept. of Environmental Quality
Completed Office of Pollution Control
Form P. O. Box 10385
To: Jackson, MS 39289-0385
ID #:
Date Recorded:
Instructions
Please type or print in ink all items except "signature" in Sections V. and VII. Please mark ail
areas that apply in each section. This form must be completed for each location containing
underground storage tanks (USTs). The form must be completed and submitted within 30 days
of bringing a UST(s) into use. Please include all USTs at the facility (old and new).
I. Type of Notification
~ A. New Location Facility ID #:
~ B. Amended Facility ID #:
. Ownership of UST(s)
~ 1. New UST(s) at Location
~ 2. Changes to Current UST(s)
~ 3. Change in Ownership
Supply Previous Owner's Name:
Account #\
Owner's Name \ (Corporation, Individual, Pi£4ic Aoency, or Other)
Mailing Address:
City:
State: ZIP Code:
Telephone No.: ( )_
Location of Tanks
Location Name or Company Site Identifier (as applicable):
Street Address: (Post Office Box is not acceptable.)
City:
State:
ZIP:
County:
Telephone No.:
Facility Operator's Name:
IV. Financial Responsibility
Select a method showing how you have
met the financial responsibility require-
ments in accordance with 40 CFR 280
Subpart H.
~ State Trust Fund
Q Self Insurance
Q Other
If Other, Specify:
V. Certification (Read and sign after completing all sections.)
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.
Name and Official Title of UST Owner (print)
Signature of UST Owner
Date Signed
Produced by the Mississippi Department of Environmental Quality. Office of Pollution Control,
P. O. Box 10385. Jackson, MS 39289 0385 I (601) 961-5171
1
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VI. Description of Underground Storage Tank (UST) System
Complete for each UST at this location.
UST No.
Status of Tanks
1.A. Currently in Use
UST No.
UST No.
UST No.
B. Temporarily Out of Use (mm/dd/yr)
C. Permanently Out of Use (mm/dd/yr)
2. Date of Installation (month, year)
3. Compartmentalized Tank
4. Manifolded Tank
5. Estimated Total Capacity (gallons)
6 Substance Currently or Last Stored in
Greatest Volume
Gasoline
Diesel
Kerosene
Used Oil
Other, Please Specify
Hazardous Substance-CERCLA Name
CAS Number
Mixture of Substances, Please Specify
7. A. Tank (Material of Construction)
Asphalt Coated or Bare Steel
Coated & Cathodically Protected Steel (sti-P^
Fiberglass Reinforced Plastic
Composite (Steel with Fiberglass/Plastic)
Other, please specify
Unknown
B. Tank (Secondary Options)
Double-walled
Excavation Liner
8. Upgrading Existing Tank(s)
Type of Corrosion Protection
Galvanic (Sacrificial Anode) System
Impressed Current System
Lined Interior
Date Installed
9. Tank (Release Detection)
Monthly Groundwater/Vapor Monitoring
Automatic Tank Gauging
Manual Tank Gauging
Tank Tightness Test with Inventory Control
Interstitial Monitoring
Statistical Inventory Reconciliation (SIR)
Other, Please Specify
Tank is used ONLY for an emergency generator.
Produced by the Mississippi Department of Environmental Quality. Office of Pollution Control,
P. 0. Box 10385. Jackson, MS 39289-0385 / (601) 961-5171
-------
Status of Tanks (continued)
UST No.
UST No.
UST No.
UST No.
UST No.
0. Spill and Overfill Prevention
Date Spill Prevention Was Installed
Date Overfill Prevention Was Installed
I
Status of Piping
IIIIIIllllI
iiiiiiiii!
1. A. Piping (Material of Construction)
Bare or Galvanized Steel
Coated/Wrapped & Cathodically Protected Steel
Fiberglass Reinforced Plastic
Flexible Plastic
Unknown
Other, Please Specify
B. Piping (Secondary Options)
Double-Walled
Excavation Liner
C. Flex Connectors
Coated/Wrapped & Cathodically Protected
Contained in Sumps/Boots
2. Piping (Type)
Suction: Check Valve Directly Under Pump
Suction: Check Valve at Tank
Pressure
Gravity Fed
Unknown
Aboveground Piping
3. Upgrading Existing Piping
Type of Corrosion Protection:
Galvanic (Sacrificial Anode) System
Impressed Current System
Date Installed
If piping has been replaced, complete section 1
under Status of Piping.
4. Piping (Release Detection)
Monthly Groundwater/Vapor Monitoring
Monthly (visual) Interstitial Monitoring
Continuous (electronic ) Interstitial Monitoring
Line Tightness Test
Statistical Inventory Reconciliation (SIR)
Other, please specify
Automatic Line Leak Detector:
Electronic
Mechanical
Produced by the Mississippi Department of Environmental Quality. Office of Pollution Control,
' P. O. Box 10385. Jackson. MS 39289-0385 I (601) 961-5171
3
-------
VII. Certification of Work Conducted on Underground Storage Tank (UST) System
Complete for USTs or piping installed, altered, or upgraded after December 22. 1988
Oath: I certify that the information concerning installation and alteration provided in Section
VI. is true to the best of my belief and knowledge.
Installer's Name: (Please Print)
Installer's Company:
Installer's Signature:
Date Signed:
Installer's Miss. Dept. of Environmental Quality Certification Number:
VIII. Precision Tightness Test
Attach a copy of the precision test report. Note: All single-walled USTs and piping must be precision tested after
installation and prior to bringing the UST system into use.
IX. Location of UST Facility
Please draw detailed driving directions to this facility. At a minimum include the street, road, or highway where
your facility is located and, if applicable, the buildings adjacent to your property.
Produced by the Mississippi Department of Environmental Quality, Office of Pollution Control,
P. 0. Box 10385, Jackson, MS 39289-0385 / (601) 961-5171
4
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APPENDIX n2
U.S. Environmental Protection Agency
Office of Underground Storage Tanks
Regional and State UST/LUST Program Contacts
EPA Regional UST Program Managers
William Torrey
U.S. EPA, Region 1
JFK Feoeral E'jiicirg
Manccce: HPU-7
3cs:cn. MA 022C3
5" 7-573-5604
¦-TS =33-604
D'! Cneu-g
U.S. EPA, Region 2
Ha;a.'ccjs & Solid Waste
P-cgrams Branc"
25 Feceral Plaza
Coce: 2AWM-HSWPB
New York. NY 10273
2' 2-254-33S4
^TS 254-3354
I
enee Gruber. Acting
.S. EPA, Region 3
341 Cnasinu; Builamg
Mailcoce: 3HW63
PhilaCeiohia. PA 19107
21 5-597-7354
FTS 597-31 77
John Mason
U.S. EPA, Region 4
345 Courtiand St.. N,E.
Mailcode: 4WM-GWP-1 5
Ailanta, GA 30365
404-347-3866
FTS 257-3866
Gerald Phillies
U.S. EPA, Region 5
77 W. Jackson Blvd.
Mailcode: HRU-8J
Chicago, IL 60604
312-886-6159
FTS 886-6159
Samuel Coleman, Aciing
U.S. EPA, Region 6
1445 Ross Avenue
Mailcode: 6H-A
Dallas. TX 752G2-2733
214-655-6755
FTS 255-6755
Lee Daniels
U.S. EPA, Region 7
RCRA/STPG Branch
726 Minnesota Avenue
Kansas City. KS 66101
913-551-7055
FTS 276-7055
Debbie Ehlert
U.S. EPA, Region 8
999 1 8th Street
Mailcode: 8-HWM-WM
Denver, CO 80202-2466
303-293-1514
FTS 330-1514
Pat Eklund
U.S. EPA, Region 9
75 Hawthorne Street
10th Floor. H-2-1
San Francisco. CA 941C5
415-744-2079
FTS 484-2079
Joan Cabreza
U.S. EPA, Region 10
1200 Sixth Avenue
Mailcode: WD-139
Seattle, WA 98101
206-553-1643
FTS 399-1643
us*;:
192
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State UST/LUST Program Offices
AK UST/LUST CONTACT2
AK Deot oI Environmental Coiservation
Contaminated Sites
4t0 Wiilougnoy Avenue. Suite ICS
Juneau. AK 99801-1795 907-465-5250
AL UST/LUST CONTACT
AL Deo*, of Environmental Management
Ground-Water Secnan/Water Division
t 751 Congressman W. L. Dickinson Dr.
Montgomery AL 36130
UST: 205-271-79B6
LUST: 205-271-7334
AR UST/LUST CONTACT1
A3 Dept. of Pollution Control & Ecology
Regulated Storage Tank Division
P O. 3o« 8913 , 72219-6913
3001 National Drive
Little mock. AR 72219-8913
501-562-5533
AZ UST,LUST CONTACT2
AZ Department of Environmental Quality
3033 Nonh Central Avenue
Phoenix. AZ 85004 602-257-5984
CA UST/LUST CONTACT
CA Stale Water Resources Control Board
Division of Clean Water Program
2014 T Street
(P.O. Box 944212. 2io; 94244-2120)
Sacramento. CA 95314
UST 916-739-4436
LUST. 916-739-4317
CO UST CONTACT
CO S:ate Oil Inspection Office
* 001 cast 5 2nc Avenue. Room At
Denver. CO e02i6 3C3-239-5643
LUST CONTACT
CC Zezar.meni cI Heaitn
-a:arcous Materials 4 Waste Mgmt. Div.
L.ioe.'crounO Storage Tan* Program
-Z'.Z East 11th Avenue
Denver, CO 60220 303-331-4664
CT UST/LUST CONTACT2
CT Deot. sf Environmental Protection
Lnaerground Storage Tan* Program
165 Capitol Avenue
narrtors. CT 06106 203-566-4630
DC UST/LUST CONTACT2
DC Environmental Regulatory Admin.
¦Jnoerjround Storage Tank Branch
2 "C0 Martin Luther King Ave. S.E.
S.ite 203
'.vasnmgton, O.C. 20020
2C2-4C4-1167
DE UST. LUST CONTACT2
~E Deot. of Natural Resources 4
Environmental Control
Unoerjround Storage TanK Brancn
715 Grantham Larte
¦Jew Castle. OE 1S720 302-323-4588
! PL
GA
Ht
IA
10
IL
IN
KS
UST/LUST CONTACT2
PL Dept. of Environmental Regulation
Tank Section
Twin Towers Office Building - flm 403
2600 Blair Stone Road
Tallanassee. PL 32399-2400
904-488-3935
UST/LUST CONTACT1
GA Department of Natural Resources
Underground Storage Tank Mgmt. Prog.
4244 International Parkway. Suite 100
Atlanta. GA 30354 404-362-2687
UST/LUST CONTACT1
HI Department of Health
Solid and Hazardous Waste Branch
500 Ala Moana Blvd., Suite 250
Honolulu. HI 96813-4913 308-586-4230
UST/LUST CONTACT1
IA Department of Natural Resources
Henry A. Wallace Building
900 East Grand
Des Moines. IA 50319 515-281-3135
UST/LUST CONTACT2
ID Department of Health A Welfare
ID Division of Environmental Quality
1410 Norm Hilton
Boise. ID 83706 208-334-5860
UST CONTACT
IL Office of Slate Fire Marshal
Division of Petroleum ft Chemical Safety
1035 Steohenson Dr.
Springfield. IL 62703 217-785-58 78
LUST CONTACT
IL EPA. Bureau ot Land
Div, ol Remediation Mgmt.. LUST Section
P.O. Sot 19276
Spnnglield. IL 62794-9276 217-782-6760
UST CONTACT
IN Depl ol Fire and Services
Offioe of the State Fire Marshal
402 West Washington Street
Room C241
Indianapolis. IN 46204
317-232-2222
LUST CONTACT
IN Dept. ol Environmental Management
Offioe of Environmental Response
2321 Executive Dnve
Indianapolis, IN 46241 317-243-5110
UST/LUST CONTACT
KS Department of Health 4 Environment
Bureau of Environmental Remediation
Underground Storage Tank Section
Forbes Field. Building 740
Topeka. KS 66620-0001
UST. 913-296-1685
LUST 913-296-1684
KY
LA
MA
MO
ME
Ml
MN
MO
UST/LUST CONTACT1
KY Division ot Waste Management
Underground Storage Tan*. 3rar-.cn
18 Retiiy Road
Franklort. KY 40601 5C2 5dJ-5"6
. UST/LUST CONTACT2
Dept. of Environmental Quality
Underground Storage Tank Division
P.O. Box 82178. 7290 Blueoonnet
Baton Rouge. LA 70884-2178
504- 755-OJ J3
UST CONTACT
MA Department of Public Safety
Underground Storage Tank Program
P.O. Box 490. East Street. Bicg tfS
Tewksbury. MA 01876 506-35''-33 t 3
LUST CONTACT
MA Dept. ol Environmental Protection
One Winter Street
Boston. MA 02108 61 7-555-',044
UST/LUST CONTACT1
MD Department ol Environment
Hazardous 4 Solid Waste Mgmt. Admin
Underground Storage Tank Program
2500 Broening Highway
Baltimore. MD 21224 410-531-3442
UST/LUST CONTACT1
ME Deot. of Environmental Protects
Stale House - Station 1 7
Hospital Street. Ray Building
Augusta. ME 04333 207-265-2551
UST CONTACT
Ml Department o! State Police
Fire Marshal Division
P.O. Box 30157
Lansing. Ml 43909
517-322-1925
LUST CONTACT
Ml Department of Natural Resources
Leaking Underground Storage Tank Unit
P.O. Box 30028
Lansing, Ml 48909 517-373-6153
UST/LUST CONTACT
MN Pollution Control Agency
Underground Storage Tank Program
520 Lafayette Road North
St. Paul. MN 55155-3898
UST- 612-297-8609
LUST 612-297-8574
UST CONTACT
MO Depanment of Natural Resources
Water Pollution Control Program
P.O. Bo* 176
Jefferson City. MO 65102 314-751-6322
LUST CONTACT
MO Department of Natural Resources
Environmental Services Program
P.O. Box 176
Jefferson City. MO 65102 314-526-331
1 = 5;aie has ' person serving as Doth the UST and LUST Contact
2 = State nas 1 UST ano 1 LUST Contact. Both nave the same address and telephone number
3/92
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State UST/LUST Program Offices
MS UST.LUST CONTACT1
'¦'5 ^epa~ment 3! Environmental Quality
Ej.-eau s! Pollution Control
-"se'j'CuP.c 5:srage Tank Soction
P C ==* IC335
JacKSon. MS 39299-C385
601-961-5171
MT UST.LUST CONTACT1
Ceot. ot nealtn & Environ. Science
Sen- & Hazardous Waste Bureau
Cogsweii Suilomg - —Si Program
-reiena. MT 59620 406-444-5970
NC UST'LUST CONTACT2
NC Pollution Control Brancn
Iivsion 0/ Environmental Management
Zez: ol Env- Health & Natural Resources
1 ,N -larrington St.
Raieign. NC 27503 919-733-8486
ND UST.LUST CONTACT1
NO department of Heaitn
Division of Waste Management'
5ox 5:20. 1200 Missouri Ave.. Room 302
Bismarc*. ND 53502-5520
701-221-5166
NE UST CONTACT
f.c S:ate Fire Marsnal's Office
F:a~.maole Liouid Storage Tank Division
2»5 Soutn 14th Street
NE 63503 402-471-54S5
LUST CONTACT
E Dec:, of Environmental Control
Groundwater Sect.. Water Quality Division
301 Centennial Ma!! Soutn. 5o* 98922
:ci~. NE 5S5C9-3S22 402-471-4230
NH UST LUST CONTACT1
2eot. of Environmental Services
C'i Cc~2nanse Section
3:;jncwa!e: .3roiecncn Bureau
= -.azen Drive. ? O Box 55
Conoorc. NH C3301 503-271-3644
NJ UST LUST CONTACT2
'•J Zeal, of Environmental Protection
arc Energy
Resoonsioie Party Site Remeciation
-C'. East State Street (CN-029)
Trenton. NJ 08625 609-984-3156
NM UST LUST CONTACT1
Environment Deoartment
.-icerground Storage Tank Bureau
= 0 Eox 26110
lrC S; Francis Dr:ve
Haro.o Runneis Sj'iomg. Room N215C
Sarv.a Fe. NM 87502 505-S27-01S8
NV UST.LUST CONTACT1
r.'V Deot of Conservation i Natural Res
-ivisicn of Environmental Protection
Caoi:o: Complex
;23 >.v Nye Lane
Carson City. NV 39710 7C2-687-5372
1 = S;aie nas 1 person serving as Doin :.ie UST
2 = State nas 1 'JST and 1 LUST Contact. Doth
NY UST/LUST CONTACT1
NV Deot ol Environmental Conservation
9ulk Storage Section
50 Wol( Road. Room 326
Albany. NY 12233-3520 518-457-4351
OH UST/LUST CONTACT2
OH Department ol Commerce
38 95 East Main Street
P O Box 687
Reynoidsburg. OH 43068
614-752-7938
OK UST/LUST CONTACT
OK Corporation Commission
Underground Storage Tank Program
Jim Thorpe Building
2101 North Lincoln Blvd.
Oklahoma City, OK 73105
UST. 405-521-3107
LUST: 405-521-6575
OR UST CONTACT
OR Dept. ot Environmental Quality
Underground Storage Tanks
811 SW Sixth Avenue. 7th Floor
Portland. OR 97204 503-229-5733
LUST CONTACT
OR Deot. of Environmental Quality
UST Cleanup Program
811 SW Sixth Avenue. 9th Floor
Portand. OR 97204 503-229-6170
PA UST/LUST CONTACT*
PA Deot of Environmental Resources
BWQM. Storage Tank Program
3600 Vartan Way, 2nd Floor
P O. Box 8762
Harnsburg, PA 17105-8762
717-657-4080
Rl UST/LUST CONTACT1
Rl Dept. ot Environmental Management
Underground Storage Tank Section
291 Promenade St.
Provioence. Rl 02908 401-277-2234
SC UST/LUST CONTACT
SC Dept. of Health and Environ. Control
Ground-Water Protection Division
2600 Bull Street
Columbia. SC 29201
UST: 803-734-5335
LUST: 803-734-5331
SO UST/LUST CONTACT1
SO Deot of Environ. & Natural Resources
Division of Environmental RegulaDon
523 East Capitol
Joe Foss 3uilamg
Pierre. SD 57501-318 1 605-773-3351
TN UST/LUST CONTACT1
TN Dept. of Environment & Conservation
200 Doctors Building
706 Church Street
Nashville. TN 37243-1541 615-741-4081
LUST Contact.
trie same adaress and telephone number.
TX UST, LUST CONTACT1
Texas Water Commission
Petroleum Storage Tan* Division
P O Box 13087. Capitol Station
1700 Norm Congress
Ausun. TX 78711-3087 5'. 2-37 -
UT UST/LUST CONTACT1
UT Dept. of Environmental Quality
Bureau ot Solid & hazaroous Waste
Division of Environmental Response and
Remediation
1950 West North Temple
Salt Lake City. UT 841 16 801-53S-41CC
VA UST/LUST CONTACT
VA State Water Control Board
P O. Box 11143
Richmond. VA 23230-1143
UST 804-527-5192
LUST. 804-527-5188
VT UST/LUST CONTACT1
VT Deot. of Natural Resources
Underground Storage Tank Program
103 Soutn Main Street. West Sunamg
Wateroury. VT 05676-0404
802-244-37:2
WA UST CONTACT
WA Department of Eoology
P.O. Box 47655
Olympia. WA 98504-7655 206-459-6272
LUST CONTACT
WA Department of Ecology
P.O. Box 47600
Olympia, WA 98504-7600 206-438-7164
Wl UST CONTACT
Wl Dept. ot Industry, Laoor & Human
Relations
Bureau ot Petroleum Insp. & Fire Protecnon
P O. Box 7969
201 East Washington Avenue
Madison, Wl 53702 608-256-76C5
Lust contact
Wl Department ot Natural Resources
P.O. Box 7921
Madison, Wl 53707-7921 608-267-7560
WV UST/LUST CONTACT2
WV Division ol Natural Resources
Waste Management Section
UST/LUST Oil ice
1356 Hansford Street
Charleston. WV 25301 304-348-6371
WY UST/LUST CONTACT1
WV Dept. of Environmental Quality
Water Quality Division
Herschler Building. 4th Floor West
122 West 25th Street
Cheyenne. WY 82002 307-777-773!
192
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State UST/LUST Program Offices
US TERRITORIES
AS UST/LUST CONTACT1
AS Environmental Protection Agency
OKice of 'He Governor
American Samoa Government
ATTN: UST/IUST Program
Pago Pago. American Samoa 36799
684-633-2304
CNMI UST/LUST CONTACT1
Division of Environmental Quality
P.O. Box 1304. Or. Torres Hospital
Commonweal?) of Norm em Mariana Ids
Saioan. MP 96950 607-234-6984
GU UST/LUST CONTACT1
GU Environmental Protection Agency
ITAE
Harmon Plaza, Complex Unit D-107
130 Rojas Street
Harmon, Guam 96911 671-646-8863
PR UST/LUST CONTACT1
Water Quality Control
Environmental Quality Board
P.O. Box 11488
Commonwealth of Puerto Rico
Santurce. Puerto Rico 00910
809-767-8109
VI UST/LUST CONTACT1
Environmental Protection Division
Oeot. ol Planning and Natural Resources
Suite 321. Nisky Center
4SA Estate Nisky
Charlotte Amalie
St. Thomas. Virgin Islands 00802
8C9-77J-3320
1 * State has 1 person serving as Dotn me UST and LUST Contact.
2 o State has 1 UST and 1 LUST Contact: bom have the same actress and telephone number
3/92
-------
APPENDIX H3
Appendix III - Statement for Shipping Tickets and Invoices
NOTE. - A Federal law (the Resource Conservation 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 determine if you are effected by this
law.
{FR Doc. 88-21153 Filed 9-22-88; 8:45 am}
BILLING CODE 6560-50-M
-------
MISSISSIPPI GROUNDWATER PROTECTION
TRUST FUND REGULATIONS
MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY
OFFICE OF POLLUTION CONTROL
Underground Storage Tank Branch
P. O. Box 10385
Jackson, Mississippi 39289-0385
(601) 961-5171
Adopted by the Commission on Environmental Quality on March 22, 1989
Amended June 24, 1993
Amended September 28,1995
-------
TABLE OF CONTENTS
PAGE
SECTION I. GENERAL INTENT 1
SECTION II. LEGAL AUTHORITY 1
SECTION III. DEFINITIONS 1
SECTION IV. IMMEDIATE RESPONSE ACTION CONTRACTOR
(IRAC) APPLICATION PROCESS 2
SECTION V. IRAC APPLICATION REVIEW 3
SE.CTION VI. IRAC PERFORMANCE STANDARDS 4
SECTION VII. DENIAL OF IRAC APPLICATIONS 4
SECTION VIII. REMOVAL FROM THE APPROVED LIST
OF IRAC'S 5
SECTION IX. ENGINEERING RESPONSE ACTION CONTRACTOR
(ERAC) APPLICATION PROCESS 5
SECTION X. ERAC SUBMITTAL OF DOCUMENTATION REQUESTED
BY THE DEPARTMENT 6
SECTION XI. ERAC PERFORMANCE STANDARDS 6
SECTION XII. REMOVAL FROM THE APPROVED LIST OF
ERAC'S 7
SECTION XIII. DENIAL OF ERAC APPLICATIONS 8
SECTION XIV. ELIGIBILITY FOR REIMBURSEMENT FROM THE
MISSISSIPPI GROUNDWATER PROTECTION
TRUST FUND 8
SECTION XV. REIMBURSABLE COSTS 9
SECTION XVI. FUNDS DISBURSEMENT 10
SECTION XVII. THIRD PARTY CLAIMS 10
SECTION XVIII. DENIAL OF CLAIMS 11
SECTION XIX. TANK REGULATORY FEES 11
SECTION XX. ENFORCEMENT ACTIONS 11
SECTION XXI. PROPERTY RIGHTS 11
-------
SECTION I. GENERAL IHTEHT
The general intent and effect of the Mississippi Underground
Storage Tank Act of 1988 (the Act) includes but is not limited to
the following:
A. to provide an incentive for owners of underground
storage tanks to stay in substantial compliance
according to applicable law and to promptly, and in
accordance with applicable law, monitor, report, and
respond to any release of motor fuel from an
underground storage tank system;
B. to provide a fund to reimburse owners who are in
substantial compliance with the Act for reasonable and
necessary costs incurred to determine the extent of and
to clean up contamination resulting from releases of
motor fuels from underground storage tanks where those
releases pose a threat to the environment or a threat
to the public health, safety or welfare;
C. to provide an alternative source of financial
responsibility for owners of underground storage tanks
(USTs) containing motor fuels; and
D. to provide a fund from which to pay for third party
damages caused by releases of motor fuels when a final
judgement has been obtained according to the Act.
SECTION II. LEGAL AUTHORITY
A. These regulations are promulgated pursuant to the
provisions of the Underground Storage Tank Act of 1988,
Miss. Code Ann., Section 49-17-405, which created the
Mississippi Groundwater Protection Trust Fund (the
Trust Fund).
B. Under the Act, the Executive Director of the Department
of Environmental Quality (the Department) has the
responsibility of adminiistering the Trust Fund.
SECTION III. DEFINITIONS
All definitions found in Miss, code Ann., Section 49-17-403, are
incorporated in these regulations. The following definitions
also apply to these regulations:
A. "Engineering Response Action Contractor (ERAC)" means a
person who has been approved by the Commission to carry
out any response action, including a person retained or
hired by such person to provide services relating to a
response action.
1
-------
B. "Immediate Response Action" means a response action
which the Department determines must be conducted on an
immediate basis.
C. "Immediate Response Action Contractor (IRAC)" is a
person who has been approved by the Commission to carry
out any immediate response action, including a person
retained or hired by such person to provide services
relating to a response action.
D. "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 motor fuels.
E. "Subcontractor" means any individual or company that
provides services, personnel, or supplies to an ERAC or
IRAC in the course of a response action.
SECTION IV. IMMEDIATE RESPONSE ACTION CONTRACTOR (IRAC)
APPLICATION PROCEflS
A. IRAC's shall be responsible for response actions on an
immediate basis which may at a minimum include
planning, designing, construction, and services related
to any discharge, release, or threatened release of
motor fuels. The Department shall determine when a
release necessitates an immediate response from an
IRAC.
B. The Department shall, on an annual basis, solicit
applications from contractors who desire to be approved
as an IRAC for the following year. Solicitation shall
be through a public notice in newspapers sufficient for
statewide coverage at least 30 days prior to the
deadline for receipt of applications. An application
form shall be provided to interested parties upon
request. The completed application and all required
documentation must be submitted to the Department of
Environmental Quality, Underground Storage Tank Branch.
The public notice shall contain applicable timetables
and such other information as the Department may deem
appropriate.
c. To be considered for listing as an IRAC, an applicant
must submit a completed application to the Department's
Underground Storage Tank Branch no later than any
deadline specified in the legal notice. Applications
received after the deadline established in the legal
notice will not be considered. The application must
contain at a minimum, the following documentatipn:
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1. copy of a current certificate of
responsibility issued by the State of
Mississippi Board of Contractors;
2. copy of a current certificate of insurance
showing coverage of at least one million
dollars ($1/000,000.00) under the
contractor's general liability insurance;
3. copy of a current certification from the
Department for a full-time (40 hours per
week) employee of the company to permanently
close DST systems;
4. copies of certificates of applicable
Occupational Safety and Health Administration
(OSHA) training for all personnel who will be
on site during UST related work;
5. evidence that the applicant has successfully
completed at least three (3) jobs within one
year prior to application submittal. Such
jobs must have involved remediaton of soils
or water at UST sites;
6. signed certification affidavit that the
applicant can meet and maintain the
requirements of Sections V. and VI. of these
regulations; and
7. other appropriate documentation as required
by the Department and specified in the legal
notice.
SECTION V. IRAC APPLICATION REVIEW
Applicants meeting the requirements of Section IV. of these
regulations must be capable, at a minimum, of performing the
following services in a satisfactory manner:
A. excavating, transporting, and properly disposing of
soil and/or groundwater contaminated with motor fuels;
B. installing, operating, and maintaining groundwater and
product recovery wells;
C. effectively recovering and properly disposing of free
phase petroleum hydrocarbons and contaminated
groundwater;
D. properly collecting and analyzing soil and groundwater
samples;
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E. responding to any site within 24 hours after
notification to proceed, or within any other time as
specified by the Department, and having on hand basic
and necessary equipment such as excavators, dump
trucks, traffic barricades, containers, sorbents,
pumps, skimmer systems, fire extinguishers, and first
aid supplies; and
F. other services deemed necessary by the Department.
SECTION VI. IRAC PERFORMANCE STANDARDS
Approved IRAC's must, at a minimum, perform satisfactorily in the
following areas:
A. assigning proper supervisory personnel to the work site
to ensure efficient and effective site management, use
of personnel, and coordination of subcontractors;
B. submitting true and accurate invoices on a form
required by the Department to any party contracting for
services;
C. paying all subcontractors within a reasonable time or
as agreed to between the subcontractor and the IRAC;
D. responding to the work site within 24 hours after
notification to proceed, or within any other time as
specified by the Department, and with proper equipment
including but not limited to equipment listed in
Section V.E.;
E. handling all aspects of the immediate response action
in an efficient, effective, and workman-like manner;
F. having personnel on site with the appropriate OSHA
training; and
6. fulfilling other requirements established by the
Department.
SECTION VII. DENIAL OF IRAC APPLICATIONS
A. The Commission may deny an IRAC application if the
Commission has reason to believe that the applicant
cannot satisfy the requirements of Section V. of these
regulations or the performance standards in Section VI.
of these regulations.
B. Causes which may result in denial of an IRAC
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application include any of those listed in Section
VIII. B. of these regulations.
C. The Commission may deny an IRAC application for other
good cause.
SECTION VIII. REMOVAL FROM THE APPROVED LIST OF IRAC#8
A. IRACs may be removed for cause from the approved list
of contractors at any time by the Commission according
to the procedures established in Miss. Code Ann.,
Section 49-17-427. A contractor who is removed from
the approved list of IRAC's shall not be reconsidered
for approval for a length of time specified by the
Commission.
B. Causes which may result in nonrenewal, removal, and/or
penalties include but are not limited to:
1: fraud and/or lack of integrity;
2. bankruptcy;
3. failure to pay subcontractors within a
reasonable time or within the time agreed to
by the subcontractor and the IRAC;
4. failure to exercise good safety practices;
5. failure to maintain the skills and satisfy
the requirements on which approval was
originally based;
6. failure to meet any of the performance
standards in Section VI. of these
regulations; or
7. other good cause deemed appropriate by the
Commission.
SECTION IX. ENGINEERING RESPONSE ACTION CONTRACTOR CERAC)
APPLICATION PROCESS
A. ERAC's shall be responsible for the engineering portion
of response actions which may at a minimum include
planning, designing, construction, and services related
to any discharge, release, or threatened release of
motor fuels. The Department shall determine when a
release necessitates a response from an ERAC.
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B. To be considered for listing as an ERAC, an applicant
must submit a completed application to the Department's
Underground storage Tank Branch. The application must
contain, at a minimum, the following documentation:
1. a copy of a valid license demonstrating that
the applicant is a professional engineer
licensed to practice in Mississippi or, in
the case of a firm or business, employs at
least one full time (40 hours per week)
professional engineer licensed to practice in
Mississippi;
2. a Quality Assurance/Quality Control (QA/QC)
Plan developed in accordance with the
requirements of the Department;
3. a current certificate of insurance proving
that the applicant holds professional
liability insurance in an amount not less
than one million dollars ($1,000,000); and,
4. evidence of the successful completion of
three (3) assessments and the successful
implementation of two (2) remediation
activities. Such work must have been
performed within five (5) years preceding the
date of application.
SECTION Z. ERAC SUBMITTAL OF DOCUMENTATION REOPB8TED BY THE
DEPARTMENT
A. To remain on the list of approved ERAC's, an ERAC must
annually submit an updated application. The updated
application must be submitted no later than one year
after approval of the ERAC.
B. To remain on the list of approved ERAC's, an ERAC must
submit a revised QA/QC Plan as requested by the
Department.
C. An ERAC shall notify the Department, in writing, within
ten (10) days of any changes to information submitted
under Section IX. B. of these regulations.
SECTION XI. ERAC PERFORMANCE STANDARDS
Approved ERAC's must at a minimum perform satisfactorily, as
determined by the Department, in the following areas:
A. performing response actions in a satisfactory manner.
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This may include, at a minimum, responsibleness,
technical competence, workmanship, or other parameters
essential to effectively and efficiently responding to
a motor fuel release;
B. having the necessary equipment on site to effectively
and efficiently perform the response action;
C. assigning proper supervisory personnel to the work site
to ensure efficient and effective site management, use
of personnel, and coordination of subcontractors;
D. responding in a timely manner to work sites and having
sufficient personnel and/or equipment available to
complete projects in an effective and efficient manner;
E. having personnel on site with the appropriate OSHA
training;
F. completing a project in a timely manner;
6. submitting true and accurate invoices on a form
required by the Department to any party contracting for
services;
H. managing the project to reasonably control costs;
I. satisfying just debts incurred through the employment
of subcontractors or the purchase of other goods and
services necessary to respond to a motor fuel release;
J. following the ERAC's Department-approved QA/QC Plan;
K. following the Department-approved scope of work;
L. ensuring that bid and contract documents are followed,
if the Department has requested bids to be submitted on
a project;
M. submitting complete and accurate reports; and
N. submitting reports by the date required by the
Department.
SECTION XII . REMOVAL FROM THE APPROVED LIST OF ERAC'B
A. An ERAC or applicant may have its approval revoked or
application for renewal denied for a length of time as
specified by the Commission for cause according to the
procedures established in Miss. Code Ann., Section 49-
17-427.
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B. Causes which may result in nonrenewal, revocation/
and/or penalties include but are not limited to:
1. fraud or lack of integrity;
2. failure to submit a revised QA/QC Plan when
requested by the Department;
3. failure to submit an updated application;
4. failure to maintain the requirements on which
approval was originally based;
5. failure to meet any of the performance
standards in Section XI. of these
regulations; or
6. other good cause deemed appropriate by the
Commission.
SECTION XIII. DENIAL OF KRAC APPLICATIONS
The Commission may deny an ERAC application if the
Commission has reason to believe that the applicant
cannot satisfy the performance standards in Section XI.
of these regulations.
Causes which may result in denial of an ERAC
application include any of those listed in Section
XII. B. of these regulations.
The Commission may deny an ERAC application for other
good cause.
SECTION XIV. ELIGIBILITY FOR REIMBURSEMENT FROM THE MISSISSIPPI
GROUNDWATER PROTECTION TRPST FUND
To be eligible for reimbursement of costs incurred during any
response action the following minimum conditions must be met:
A. the release must have been confirmed and reported to
the Department after July 1, 1988;
B. the release must be from an active UST containing motor
fuels; and
C. the owner or operator must be in substantial compliance
with the underground storage tank law, rules and
regulations.
B.
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SECTION XV. PFTMHmmMLB COSTS
A. The Trust Fund may be used at eligible sites for costs
incurred in conducting site investigations,
assessments, and remediation, in replacing potable
water supplies, and in paying third party claims in
accordance with Section XVII. of these regulations.
Owner's and/or operator's reimbursement may be reduced
by $100/day for documents submitted after a written
deadline date established by the Department.
B. The Trust Fund may be used to reimburse costs at
eligible sites for the following activities:
1. recovery and disposal of released motor
fuels;
2. recovery and disposal of contaminated
soils;
3. installation and operation of monitoring
and/or recovery wells;
4. soil borings, soil, and water sampling,
and laboratory analyses;
5. removal, treatment, and disposal of
motor fuel contaminated wastes of any
kind;
6. replacement of contaminated public or private
water supplies; and
7. other costs determined by the Department
to be reasonable and necessary for
assessment and remediation.
C. Only costs determined by the Department to be fair and
reasonable will be reimbursed. The Department may
require competitive bidding in order to establish fair
and reasonable cost.
D. The Trust Fund may not be used to reimburse costs for
the following activities:
1. repairing, permanently closing, or
replacing underground storage tank
systems;
2. lost revenue;
3. confirmation of a release;
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4. rental of temporary motor fuel storage
tanks;
5. loss of any real or personal property
not directly associated with the
investigation, assessment, or
remediation;
6. loss of motor fuel;
7. legal fees; or
8. other costs determined by the Department not
to be reasonable and necessary for assessment
and remediation.
SECTION XVI. FUNDS DTSnTTBHraKNT
Payments from the Trust Fund may be made to underground storage
tank owners for their eligible costs incurred up to $1,000,000
for investigation, assessment, and/or remediation for each
confirmed release, provided the following minimum conditions are
met:
A. a representative of the Department has approved any
activity and costs prior to the initiation of such
activity;
B. the UST tank owner has first submitted a certification
affidavit on a form furnished by the Department
certifying that the costs incurred were necessary,
fair, and reasonable; and
C. the UST owner has submitted to the Department any other
documentation or information concerning the costs
incurred which the Department deems necessary to ensure
costs are eligible, reasonable, and necessary and to
ensure fiscal integrity of the Trust Fund.
SECTION XVII. THIRD PARTY CLAIMS
Payments of up to $1,000,000 per site per release occurrence may
be made to any third party who brings a third party claim against
any owner of an underground storage tank and the Commission as
trustee of the Mississippi Groundwater Protection Trust Fund and
who obtains a final judgement in such action which is valid and
enforceable in this state against such parties. Payments shall
be paid to the third party upon such party's filing an
application with the Department attaching the original or a
certified copy of the final judgement.
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SECTION XVIII. DENIAL QT CTATMH
The Department may deny any reimbursement request of an eligible
party if the costs incurred were unreasonable, unnecessary, or
were not incurred in accordance with these regulations, the UST
technical regulations, or the procedures developed for managing
the Mississippi Groundwater Protection Trust Fund. Any owner of
an underground storage tank who is denied reimbursement in whole
or in part shall have the right to a hearing before the
Commission on Environmental Quality according to Mississippi Code
Ann., Sections 49-17-31 through 49-17-35.
SECTION XIX. TANK REGULATORY FEES
The tank regulatory fee shall be $80.00 per tank per year. The
Department, on behalf of the Commission, shall collect the fee
from the owner of each underground storage tank in use as
provided in the Mississippi Underground Storage Tank Act of 1988,
Miss. Code Ann., Sections 49-17-401 through 49-17-435. If any
owner of an underground storage tank fails to pay the tank fee in
a timely manner, the owner shall be required to pay the past due
amount plus interest at one and one-half percent (1-1/2%) per
month for every month or part thereof for the period of
delinquency, together with any attorney's fees, court costs and
any other expenses incurred in the collection of such past due
amounts.
SECTION XX. mnPOPPRMitiiT ACTIONS
Hearings may be requested regarding any of these provisions of
these rules. A person who violates any provision of these
regulations or of state law is subject to any actions and
remedies allowed under state law. Enforcement and appeals shall
be accordance with the Mississippi Underground Storage Tank Act
of 1988, 49-17-401, et seq., and the Mississippi Air and Water
Pollution Control Law 49-17-1 et seq.
SECTION XXI. PROPERTY RIGHTS
These regulations do not convey any property rights in either
real or personal property, or any exclusive privileges, invasion
of personal rights or any infringement of federal, state, or
local law.
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UNDERGROUND STORAGE TANK REGULATIONS
FOR THE CERTIFICATION OF
PERSONS WHO INSTALL, ALTER, AND REMOVE
UNDERGROUND STORAGE TANKS
MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY
OFFICE OF POLLUTION CONTROL
Underground Storage Tank Branch
P. O. Box 10385
Jackson, Mississippi 39289-0385
(601) 961-5171
Adopted by the Commission on Environmental Quality on January 24, 1990
Amended May 6, 1993
Amended September 28, 1995
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TABLE OF CONTENTS
PAGE
SECTION I. GENERAL INTENT 1
SECTION II. LEGAL AUTHORITY 1
SECTION III. DEFINITIONS 1
SECTION IV. APPLICABILITY 3
SECTION V. GENERAL REQUIREMENTS 4
SECTION VI. CERTIFICATION REQUIREMENTS 4
SECTION VII. TESTING 6
SECTION VIII. CERTIFICATION 6
SECTION IX. CERTIFICATION RENEWALS 7
SECTION X. CONTINUING EDUCATION . 7
SECTION XI. LAPSED CERTIFICATION 8
SECTION XII. REVOCATION/ DENIAL, AND NON-RENEWAL OF
CERTIFICATES 8
SECTION XIII. ENFORCEMENT AND APPEALS 9
SECTION XIV. PROPERTY RIGHTS 9
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SECTION I. GENERAL INTENT
The purpose of these Regulations is to provide for
the certification and regulation of persons
installing, altering, and removing underground
storage tank (UST) systems which contain regulated
substances. These regulations are promulgated to
assure that UST systems are being installed,
altered, and removed in a manner which will not
cause or contribute to releases of regulated
substances as defined in Section 49-17-403,
Mississippi Annotated Code of 1972, and will
protect the environment, the public health, safety,
and welfare.
SECTION II. LEGAL AUTHORITY
These regulations are promulgated pursuant to the
provisions of the Underground Storage Tank Act of
1988, particularly Section 49-17-429, Mississippi
Code Annotated of 1972, reguiring that beginning on
July 1, 1990, all persons who install, alter, or
remove underground storage tanks must be certified
by the Commission on Environmental Quality.
Authority to issue certifications is hereby
delegated to the Department of Environmental
Quality through these rules.
SECTION III. DEFINITIONS
A. All the definitions found in Mississippi
Underground Storage Tank Regulations, Section
49-17-403, are incorporated in these
regulations. The following definitions also
apply to these regulations:
B. "Alter" means the correction or modification
of a UST system, including but not limited to
the replacement of piping, valves, fill pipes
or vents and any repairs to the tank.
C. "Certified Installation Contractor" means a
person who has been certified by the
Department to install, alter, and permanently
close UST systems.
D. "Certified Removal Contractor" means a person
who has been certified by the Department to
permanently close UST systems.
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E. "Critical Junctures," means the steps taken to
install, alter, or permanently close a UST
system which cause the greatest risk of
release.
1. In the case of installation, critical
junctures shall at a minimum, include:
a. preparation of the excavation
immediately prior to receiving
backfill, tank(s) and piping;
b. setting of the tank(s) and piping,
including placement of any anchoring
devices, backfilling, and strapping;
c. any time the components of the
piping are disconnected or are being
disconnected or connected;
d. all pressure testing of the UST
system performed during the
installation;
e. completion of backfill and filling
of the excavation.
2. In the case of alteration, critical
juncture, shall, at a minimum, include:
a. all steps listed in E.l above;
b. excavation of existing tank(s) or
piping;
c. actual performance of the alteration
to the tank(s) or the piping;
d. any time the components of the UST
system are disconnected or are being
disconnected, connected, repaired,
or replaced; and
e. any time during the testing of the
UST system.
3. In the case of a removal, critical
juncture, shall at a minimum include:
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a. any removal and excavation of cover
material and surrounding soil;
b. removal of the tank(s) and/or piping
in the case of physical removal;
c. filling of the tank(s) and/or piping
with an inert material;
d. purging and inerting in the case of
closing the tank; and
e. sampling.
F. "Department" means the Mississippi Department
of Environmental Quality.
G. "Full-time employee" means that the employee
is paid by his employer for at least 40 hours
per week and receives all of the same benefits
from his employer that are afforded to all of
the employer's other full-time employees.
H. "Install" or "Installation" means the work
involved in placing an underground storage
tank system or any part thereof in the ground
and preparing it to be placed in service.
I. "Permanent closure" means the physical removal
of an underground storage tank system or the
closure of an underground storage tank system
in place.
J. "Remove or Removal" means permanent closure.
K. "Sampling" means taking specimens during the
permanent closure process according to
sampling procedures found in guidelines
established by the Department.
L. "Underground Storage Tank" or "Underground
Storage Tank System" shall have the same
meaning as defined in Section 49-17 403(s) of
the Mississippi Code Annotated of 1972.
SECTION IV. APPLICABILITY
A. These regulations apply to all persons who
install, alter, or remove underground storage
tank systems in this state, except as provided
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in Subsection B below.
B. The provisions of these regulations do not
apply to the installation, alteration, or
removal of any underground storage tank system
exempt from regulation under 49-17-403,
Mississippi Code of 1972, or exempt from these
regulations.
SECTION V. GENERAL REQUIREMENTS
A. Beginning on July 1, 1990, no person may
install, alter, or remove underground storage
tank systems in this state unless that person
holds current certification from the
Department.
B. A certified individual shall exercise
supervisory control and be physically present
at the work site during all critical
junctures.
C. The requirements of these regulations are in
addition to and not in lieu of any other
licensing and registration requirements
imposed by the state or any other governing
authority.
D. A certified individual shall install, alter and
remove underground storage tanks according to
the Mississippi Underground Storage Tank
Technical Regulations.
E. A certified individual shall exercise rea-
sonable care in the installation, alteration,
and removal of UST systems so as to prevent
and detect releases of regulated substance
into the environment.
F. A certified individual shall be responsible for
all work performed under his certification.
SECTION VI. CERTIFICATION REQUIREMENTS
A. To be a certified installation contractor or
a certified removal contractor of underground
storage tank systems, an applicant for
certification must meet the following
requirements:
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be at least 18 years of age;
complete and submit an application
provided by the Department;
pass appropriate examination(s) developed
and given by the Department, with a score
of at least 75%;
submit current proof of financial
responsibility in one of the following
two ways if installing, altering, or
removing tanks not owned by the applicant
or company named on the certification
application:
a. a certificate of Insurance that must
provide and reflect
(1) at least $50,000 coverage of
contractor's general liability
insurance; and
(2) a 30- or 60-day cancellation
notice period; and
(3) the Department as the
certificate holder; or,
b. a certificate of Responsibility from
the Mississippi Board of
Contractors;
submit letter from his employer stating
that the applicant is a full-time
employee of said company if both of the
following conditions exist:
(1) applicant is an employee of
company and not the owner;
(2) The applicant will install,
alter, and/or remove tanks
other than those owned by the
company.
be a full-time employee of only one
company.
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B. If applying for certification to remove
USTs, an applicant must provide a certificate
showing completion of eight (8) hours of
Department approved removal-related course
work and meet the requirements in subsection
A. of this section.
C. If applying for certification to install,
alter, and remove USTs, an applicant must
provide a certificate showing completion of
eight (8) hours of Department approved
installation-related course work and meet the
requirements in subsection A. and B. of this
section.
SECTION VII. TESTING
A. The Department shall prepare examinations to
determine an applicant's knowledge, ability,
and judgement,
B. Applicants must meet all of the certification
requirements within six (6) months from the
date of receiving a passing score to receive
certification. After six (6) months, an
applicant must meet the requirements in
Sections VI, Certification Requirements, and
Section VII, Testing.
C. Examinations shall be held at places and times
set by the Department.
D. An applicant who fails an examination must
wait at least 30 days before being retested.
E. An applicant who fails three examinations
within 12 months shall not be retested until
at least one (1) year after the date of his
last examination.
F. An applicant for certification to install,
alter, and remove underground storage tanks
must first make a passing score of 75 percent
or more on the closure test before taking the
installation and alteration test.
SECTION VIII. CERTIFICATION
A. The Department shall issue certification to
applicants who meet all certification
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requirements.
B. Certification shall be issued for a period of
two (2) years.
C. A certified individual who changes employers
must submit a revised certification
application and meet the requirements in
subsection A. 4., A. 5., and A. 6. in Section
VI, Certification Requirements, before a
revised certificate will be issued.
D. An individual certified to only remove UST
systems who passes the installation and
alteration test will be issued a certificate
to install, alter, and remove UST systems for
two years.
SECTION IX. CERTIFICATION RENEWALS
A. Certificates must be renewed every two (2)
years. An applicant for renewal must submit
the following to the Department prior to his
certification expiration date:
1. a completed Certification Renewal
Application provided by the Department;
and
2. proof that continuing education hours
were taken during the current two-year
certification period and meet the
requirements found in Section X,
Continuing Education.
SECTION X. CONTINUING EDUCATION
A. Individuals certified to install, alter, and
remove UST systems must receive at least
sixteen (16) hours of related continuing
education during the two (2) year
certification period. Individuals who were
certified before the effective date of these
regulations must meet the 16 hours of
continuing education during their next
certification period.
B. Individuals certified to only remove UST
systems must receive at least eight (8) hours
of related continuing education during the two
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(2) year certification period.
C. Individuals will only receive credit for
attending Department approved continuing
education courses.
D. Individuals certified to remove UST systems
who later become certified to install and
alter UST systems will receive credit for
eight (8) hours of continuing education course
work taken in accordance with the requirements
in subsections C. of this section.
SECTION XI. LAPSED CERTIFICATION
A. If a Certified Installation Contractor or
Removal Contractor wants to become certified
after his certification expires, he must meet
all of the certification requirements in:
1. subsection A.2., A.3., A. 4, A.5., A. 6.,
subsection B. and, if applicable,
subsection C. in Section VI,
Certification Requirements; and
2. Section VII, Testing.
SECTION XII. REVOCATION. DENIAL, and NON-RENEWAL OF CERTIFICATES
The Commission may revoke any certificate or deny
any application or renewal application for good
cause. Good cause may include, but is not limited
to:
A. fraud or deception;
B. failure to use reasonable care or judgement in
the performance of duties;
C. incompetence or inability to properly perform
duties;
D. failure to follow provisions of Section V,
General Requirements; and
E. other reasons as the Commission may deem
appropriate.
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SECTION XIII.
ENFORCEMENT AND APPEALS
A. Any interested party, including the
Department, may request a hearing before the
Commission as provided in Sections 49-17-31,
49-17-33, 49-17-35, 49-17-37, or 49-17-41 or
other applicable provisions of law. Hearings
may be requested regarding any of the
provisions of these rules, including but not
limited to:
1. revocation of a certificate;
2. non-renewal of a certificate; and
3. denial of an application for
certif ication.
B. A person who violates any provision of these
regulations or of State law is subject to any
actions and remedies allowed under State law.
C. Enforcement and appeals shall be in accordance
with the Mississippi Underground Storage Tank
Act of 1988, 49-17-401, et seq., and the
Mississippi Air and Water Pollution Control
Law 49-17-1, et seq.
SECTION XIV. PROPERTY RIGHTS
A certification issued by the Department or
Commission does not convey any property rights in
either real or personal property, or any exclusive
privileges, nor does it authorize any injury to
private property or any invasion of personal rights
nor any infringement of federal, state, or local
law.
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North Carolina
Leaking Petroleum
Underground Storage Tank
Cleanup Act of 1988
Reprinted From
General Statutes of North Carolina
July 1995
Issued by
Division of Environmental Management
Department of Environment, Health, and Natural Resources
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PART 2A.
LEAKING PETROLEUM UNDERGROUND STORAGE TANK CLEANUP.
§ 143-215.94A. Definitions.
Unless a different meaning is required by the context, the following definitions shall apply
throughout this Part and Part 2B of this Article:
(0) "Affiliate" has the same meaning as in 17 Code of Federal Regulations § 240.12(b)-2 (1
April 1994 Edition), which defines "affiliate" as a person that directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control of another person.
(1) "Commercial Fund" means the Commercial Leaking Petroleum Underground Storage
Tank Cleanup Fund established pursuant to this Part.
(2) "Commercial underground storage tank" means any one or combination of tanks
(including underground pipes connected thereto) used to contain an accumulation of petroleum
products, 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. The term "commercial
underground storage tank" does not include any:
a. Farm or residential underground storage tank of 1,100 gallons or less capacity used for
storing motor fuel for noncommercial purposes;
b. Underground storage tank of 1,100 gallons or less capacity used for storing heating oil
for consumptive use on the premises where stored;
c. Underground storage tank of more than 1.100 gallon capacity used fey storing heating
oil for consumptive use on the premises where stored by four or fewer households;
d. Septic tank;
e. Pipeline facility (including gathering lines) regulated under:
1. The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. § 1671 et seq.);
2. The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. § 2001 et seq.); or
3. Any 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;
f. Surface impoundment, pit, pond, or lagoon:
g. Storm water or waste water collection system;
h. Flow-through process tank;
i. Liquid trap or associated gathering lines directly related to oil or gas production and
gathering operations; or
j. 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.
(3) "Council" means the North Carolina Petroleum Underground Storage Tank Funds
Council.
(3a) "Facility" means an underground storage tank, or two or more underground storage
tanks located in close proximity to each other and having' the same owner or operator, that are
located on a single tract of land or on contiguous tracts of land that are owned or controlled by
iae same person. As used in this subdivision, the terms "owner", "operator", and "person" include
y affiliate, parent, and subsidiary of the owner, operator, or person, respectively. The owner or
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person having control of the land on which an underground storage tank is located, or on which
two or more underground storage tanks are located, need not be the owner or operator of the
underground storage tank or underground storage tanks. The term "facility", as defined in this
subdivision, does not apply to a "pipeline facility", as that phrase is used in subdivisions (2) and
(7) of this section.
(4) "Heating oil" means petroleum that is No. 1, No. 2, No. 4-light, No. 4-heavy, No. 5-light,
No. 5-heavy, or 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 for the
purpose of heating.
(5) "Loan Fund" means the Groundwater Protection Loan Fund.
(6) "Noncommercial Fund" means the Noncommercial Leaking Petroleum Underground
Storage Tank Cleanup Fund established pursuant to this Part.
(7) "Noncommercial underground storage tank" means any one or combination of tanks
(including underground pipes connected thereto) used to contain an accumulation of petroleum
products, 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. The term "noncommercial
storage tank" does not include, any:
a. Commercial underground storage tanks;
b. Septic tank;
c. Pipeline facility (including gathering lines) regulated under:
1. The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. § 1671 et seq.);
2. The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. § 2001 et seq.); or
3. Any 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;
d. Surface impoundment, pit, pond, or lagoon;
e. Storm water or waste water collection system;
f. Flow-through process tank;
g. Liquid trap or associated gathering lines directly related to oil or gas production and
gathering operations; or
h. 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.
(8) "Operator" means any person in control of, or having responsibility for, the operation of
an underground storage tank.
(9) "Owner" means:
a. In the case of an underground storage tank in use on 8 November 1984, or brought into
use after that date, any person who owns an underground storage tank used for the storage, use,
or dispensing of petroleum products; and
b. In the case of an underground storage tank in use before 8 November 1984, but no
longer in use on or after that date, any person who owned such tank immediately before the
discontinuation of its use.
(9a) "Parent" has the same meaning as in 17 Code of Federal Regulations § 240.12(b)-2 (1
April 1994 Edition), which defines "parent" as an affiliate that directly, or indirectly through one
or more intermediaries", controls another person.
(10) "Petroleum" or "petroleum product" means crude oil or any fraction thereof which is a
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liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds
per square inch absolute), including any such liquid which consists of a blend of petroleum and
alcohol and which is intended for use as a motor fuel. The terms "petroleum" and "petroleum
product" do not include any hazardous substance as defined in Section 101(14) of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No.
96-510, 94 Stat. 2767, 42 U.S.C. § 9601(14) as amended; any substance regulated as a hazardous
waste under Subtitle C of Title H of the Resource Conservation and Recovery Act of 1976, Pub.
L. 94-580, 90 Stat. 2806, 42 U.S.C. § 6921 et seq., as amended; or any mixture of petroleum or a
petroleum product containing any such hazardous substance or hazardous waste in greater than
de minimis quantities.
(11) "Subsidiaiy" has the same meaning as in 17 Code of Federal Regulations § 240.12(b)-2
(1 April 1994 Edition), which defines "subsidiary" as an affiliate that is directly, or indirectly
through one or more intermediaries, ^controlled by another person.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 3; 1991, c. 538, s. 1; 1995, c. 377, s. 4.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
Effect of Amendments. - The 1995 amendment, effective July 5, 1995, added "and Part 2B of
this Article" at the end of the introductory language; added subdivisions (0), (3a), (9a) and (11).
Legal Periodicals. - For note, "Spillover from the Exxon Valdez: North Carolina's New Offshore
Oil Spill Statute," see 68 N.C.L. Rev. 1214 (1990).
§ 143-215.94B. Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund.
(a) There is established under the control and direction of the Department the Commercial
Leaking Petroleum Underground Storage Tank Cleanup Fund. This Commercial Fund shall be a
nonreverting revolving fund consisting of any monies appropriated for such purpose by the
General Assembly or available to it from grants, other monies paid to it or recovered on behalf of
the Commercial Fund, and fees paid pursuant to this Part.
(b) The Commercial Fund shall be used for the payment of the following costs up to an
aggregate maximum of one million dollars ($1,000,000) per occurrence resulting from a discharge
or release of a petroleum product from a commercial underground storage tank:
(1) For discharges or releases discovered or reported between 30 June 1988 and 31 December
1991 inclusive, the cleanup of environmental damage as required by G.S. 143-215.94E(a) in
excess of fifty thousand dollars ($50,000) per occurrence.
(2) For discharges or releases discovered on or after 1 January 1992 and reported between 1
January 1992 and 31 December 1993 inclusive, the cleanup of environmental damage as required
by G.S. 143-215.94E(a) in excess of twenty thousand dollars ($20,000) per occurrence.
(2a) For discharges or releases discovered and reported on or after 1 January 1994 and prior
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to 1 January 1995, the cleanup of environmental damage as required by G.S. 143-215.94E(a) in
excess of twenty thousand dollars ($20,000) if the owner or operator (i) notifies the Department
prior to 1 January 1994 of its intent to permanently close the tank in accordance with applicable
regulations or to upgrade the tank to meet the requirements that existing underground storage
tanks must meet by 22 December 1998, (ii) commences closure or upgrade of the tank prior to 1
July 1994, and (iii) completes closure or upgrade of the tank prior to 1 January 1995.
(3) For discharges or releases reported on or after 1 January 1994, the cleanup of
environmental damage as required by G.S. 143-215.94E(a) in excess of twenty thousand dollars
($20,000) if, prior to the discharge or release, the commercial underground storage tank from
which the discharge or release occurred met the performance standards applicable to tanks
installed after 22 December 1988 or met the requirements that existing underground storage tanks
must meet by 22 December 1998.
(4) For discharges or releases reported on or after 1 January 1994 from a commercial
underground storage tank that does not qualify under subdivision (2a) of this subsection or does
not meet the standards in subdivision (3) of this subsection, sixty percent (60%) of the costs per
occurrence of the cleanup of environmental damage as required by G.S. 143-215.94E(a) that
exceeds twenty thousand dollars ($20,000) but is not more than one hundred fifty-seven thousand
five hundred dollars ($157,500) and one hundred percent (100%) of the costs above this amount,
up to the limits established in this section.
(5) Compensation to third parties for bodily injury and property damage in excess of one
hundred thousand dollars ($100,000) per occurrence.
(6) Reimbursing the State for damages or other costs incurred as a result of a loan from the
Loan Fund. The per occurrence limit does not apply to reimbursements to the State under this
subdivision.
(bl) In the event that two or more discharges or releases at any one facility, the first of which
was discovered or reported on or after 30 June 1988, result in more than one plume of soil,
surface water, or groundwater contamination, the Commercial Fund shall be used for the payment
of the costs of the cleanup of environmental damage as required by G.S. 143-215.94E(a) in
excess of the multiple discharge amount up to the applicable aggregate maximum specified in
subsections (b) and (b2) of this section. The multiple discharge amount shall be calculated as
follows:
(1) Each discharge or release shall be considered separately as if it were the only discharge or
release, and the cost for which the owner or operator is responsible under subdivisions (1), (2),
(2a), or (3) of subsection (b) of this section, whichever are applicable, shall be determined for
each discharge or release. For each discharge or release for which subdivision (4) of subsection
(b) of this section is applicable, the cost for which the owner or operator is responsible, for the
purpose of this subsection, shall be seventy-five thousand dollars ($75,000). For purposes of this
subsection, two or more discharges or releases that result in a single plume of soil, surface water,
or groundwater contamination shall be considered as a single discharge or release.
(2) The multiple discharge amount shall be the lesser of:
a. The sum of all the costs determined as set out in subdivision (1) of this subsection; or
b. The product of the highest of the costs determined as set out in subdivision (1) of this
subsection multiplied by one and one-half (1 1/2).
(b2) In the event that the aggregate costs per occurrence described in subsection (b) or (bl) of
this section exceed one million dollars ($1,000,000), the Commercial Fund shall be used for the
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payment of eighty percent (80%) of the costs in excess of one million dollars ($1,000,000) up to a
maximum of one million five hundred thousand dollars (Si,500,000). The Department shall not
pay or reimburse costs under this subsection unless the owner, operator, or landowner eligible for
reimbursement under G.S. 143-215.94E(bl) subrsdts proof that the owner, operator, or
landowner eligible for reimbursement under G.S. 143-215.94E(bl) has paid at least twenty
percent (20%) of the costs for which reimbursement is sought.
(c) The Commercial Fund is to be available or; an occurrence basis, without regard to number
of occurrences associated with tanks owned or operated by the same owner or operator.
(d) The Commercial Fund shall not be used for.
(1) Costs incurred as a result of a discharge or release from an aboveground tank,
aboveground pipe or fitting not connected to an underground storage tank, or vehicle.
(2) The removal or replacement of any tank, pipe, fitting or related equipment.
(3) Costs incurred as a result of a discharge or release of petroleum from a transmission
pipeline.
(4) Costs intended to be paid by the NoncocEaercial Fund.
(5) Costs associated with the administration of any underground storage tank program other
than the program administered pursuant to this Part.
(6) Costs paid or reimbursed by or from any source other than the Commercial Fund,
including but not limited to, any payment or reimbursement made under a contract of insurance.
(e) The Commercial Fund shall be treated as a special trust fund and shall be credited with
interest by the State Treasurer pursuant to G.S. 147-69.2 and G.S. 147-69.3.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 4; 1991, c. 538, ss. 2, 3; 1991 (Reg.
Sess., 1992), c. 817, s. 1; 1993, c. 400, s. 15; c. 402, s. 1; 1995, c. 377, s. 5.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
Session Laws 1995, c. 377, s. 17, provides that the amendments by Session Laws 1995, c. 377,
s. 5, to this section are applicable to any pending claim for reimbursement, and applicable
retroactively to any discharge or release that was discovered or reported on or after June 30,
1988, except that subsection (d)(6) is applicable only to a discharge or release that was
discovered or reported on or after March 30, 1990.
Effect of Amendments. - The 1995 amendment, effective July 5, 1995, deleted "that at the time
the discharge or release is discovered or reported is beneath the surface of the ground or has been
removed within the preceding 120 days" from the end of the introductory language in subsection
(b); rewrote subsection (bl); added subsection (b2); and in subsection (d) added subdivision
(d)(6), and made punctuation changes. For the effective date of these amendments, see the
Editor's note.
§ 143-215.94C. Commercial leaking petroleum underground storage tank cleanup fees.
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(a) The owner or operator of a commercial petroleum underground storage tank shall pay to
the Secretary for deposit into the Commercial Fund an annual operating fee according to the
following schedule:
(1) For each petroleum commercial underground storage tank of 3,500 gallons or less
capacity - one hundred fifty dollars ($150.00).
(2) For each petroleum commercial underground storage tank of more than 3,500 gallon
capacity - two hundred twenty-five dollars ($225.00).
(b) The annual operating fee shall be determined on a calendar year basis. For petroleum
commercial underground storage tanks in use on 1 January and remaining in use on or after 1
December of that year, the annual operating fee due for that year shall be as specified in
subsection (a) of this section. For a petroleum commercial underground storage tank that is first
placed in use in any year, the annual operating fee due for that year shall be determined by
multiplying one-twelfth (1/12) of the amount specified in subsection (a) of this section by the
number of months remaining in the calendar year. For a petroleum commercial underground
storage tank that is permanently removed from use in any year, the annual operating fee due for
that year shall be determined by multiplying one-twelfth (1/12) of the amount specified in
subsection (a) of this section by the number of months in the calendar year preceding the
permanent removal from use. In calculating the pro rata annual operating fee for a tank that is first
placed in use or permanently removed during a calendar year under the preceding two sentences,
a partial month shall count as a month, except that where a tank is permanently removed and
replaced by another tank, the total of the annual operating fee for the tank that is removed and the
replacement tank shall not exceed the annual operating fee for the replacement tank. The annual
operating fee shall be due and payable on the first day of the month in accordance with a
staggered schedule established by the Department. The Department shall implement a staggered
schedule to the end that the total amount of fees to be collected by the Department is
approximately the same each quarter. A person who owns or operates more than one petroleum
commercial underground storage tank may request that the fee for all tanks be due at the same
time. The fee for all commercial underground storage tanks located at the same facility shall be
due at the same time. A person who owns or operates 12 or more commercial petroleum storage
tanks may request that the total of all fees be paid in four equal payments to be due on the first
day of each calendar quarter, provided that the fee for all commercial underground storage tanks
located at the same facility shall be due at the same time.
(c) Beginning no later than sixty days before the first due date of the annual operating fee
imposed by this section, any person who deposits a petroleum product in a commercial
underground storage tank that would be subject to the annual operating fee shall, at least once in
each calendar year during which such deposit of a petroleum product is made, notify the owner or
operator of the duty to pay the annual operating fee. The requirement to notify pursuant to this
subsection does not constitute a duty owed by the person depositing a petroleum product in a
commercial underground storage tank to the owner or operator and the person depositing a
petroleum product in an underground storage tank shall not incur any liability to the owner or
operator for failure to give notice of the duty to pay the operating fee.
(d) Repealed by Session Laws 1991, c. 538, s. 3.1.
(e) An owner or operator of a commercial underground storage tank who fails to pay an
annual operating fee due under this section within 30 days of the date that the fee is due shall pay,
in addition to the fee, a late penalty of five dollars ($5.00) per day per commercial underground
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§ 143-215.94D. Noncommercial Leaking Petroleum Underground Storage Tank Cleanup Fund.
(a) There is established under the control and direction of the Department the Noncommercial
Leaking Petroleum Underground Storage Tank Cleanup Fund. This Noncommercial Fund shall be
a nonreverting revolving fund consisting of any monies appropriated for such purpose by the
General Assembly or available to it from grants, or other monies paid to it or recovered on behalf
of the Noncommercial Fund.
(b) The Noncommercial Fund shall be used for the payment of the costs set out in subsection
(bl) of this section, up to an aggregate maximum of one million dollars ($1,000,000) per
occurrence resulting from a discharge or release of a petroleum product from:
(1) Noncommercial underground storage tanks if the discharge or release meets the minimum
priority criteria for corrective action established by the Department.
(2) Commercial underground storage tanks if the owner or operator cannot be identified or
fails to proceed with the cleanup.
(3) Commercial underground storage tanks that were taken out of operation prior to 1
January 1974 if, at the time the discharge or release is discovered, neither the owner or operator
owns or leases the lands on which the tank is located.
(4) Commercial underground storage tanks if the owner of the commercial underground
storage tank is the owner only as a result of owning the land on which the commercial
underground,storage tank is located, the owner did not know or have reason to know that the
underground storage tank was located on the property, and the land was not transferred to the
owner to avoid liability for the commercial underground storage tank.
(bl) The Noncommercial Fund shall be used for the payment of the costs of:
(1) The cleanup of environmental damage as required by G.S. 143-215.94E(a); and
(2) Compensation to third parties for bodily injury and property damage in excess of one
hundred thousand dollars ($100,000) per occurrence.
• (3) Reimbursing the State for damages or other costs incurred as a result of a loan from the
Loan Fund. The per occurrence limit does not apply to reimbursements to the State under this
subdivision.
(b2) The Noncommercial Fund may be used by the Department for the payment of costs
necessary to render harmless any commercial or noncommercial underground storage tank from
which a discharge or release has-not occurred but which poses an imminent hazard to the
environment if the owner or operator cannot be identified or located, or if the owner or operator
fails to take action to render harmless the underground storage tank within 90 days after having
been notified of the imminent hazard posed by the underground storage tank. The Secretary may
seek to recover the costs of the action from the owner or operator as provided in G.S.
143-215.94G.
(c) The Noncommercial Fund is to be available on an occurrence basis, without regard to
number of occurrences associated with tanks owned or operated by the same owner or operator.
(d) The Noncommercial Fund shall not be used for:
(1) Costs incurred as a result of a discharge or release from an aboveground tank,
aboveground pipe or fitting not connected to an underground storage tank, or vehicle.
(2) The removal or replacement of any tank, pipe, fitting or related equipment.
(3) Costs incurred as a result of a discharge or release of petroleum from a transmission
pipeline.
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storage tank, up to a maximum equal to the annual operating fee due. The Department may waive
a late penalty in whole or in part if:
(1) The late penalty was incurred because of the late payment or nonpayment of an annual
operating fee by a previous owner or operator.
(2) The late penalty was incurred because of a billing error for which the Department is
responsible.
(3) Where the late penalty was incurred because the annual operating fee was not paid by the
owner or operator due to inadvertence or accident.
(4) Where payment of the late penalty will prevent the owner or operator from complying
with any substantive law, rule, or regulation applicable to underground storage tanks and intended
to prevent or mitigate discharges or releases or to facilitate the early detection of discharges or
releases.
(1987 (Reg. Sess., 1988), c. 1035, s. J; 1989, c. 652, s. 5; 1991, c. 538, ss. 3.1, 4, 5; 1993, c.
400, s. 15; c. 402, s. 2; 1995, c. 377, s. 6.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94GS and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.'
Session Laws 1993, c. 402, which amended this section, in s. 11, which expires June 30, 1995,
provides:
"The Secretary of Environment, Health, and Natural Resources may waive reimbursement
under subdivisions (1), (3), (3a), and (5) of G.S. 143-215.94G, as amended by Section 5 of this
act, of all or any part of the costs of developing and implementing a cleanup plan for a discharge
or release of petroleum from an underground storage tank that is owned or operated by a public
hospital, as defined by G.S. 131E-48. With respect to a discharge or release from a commercial
underground storage tank owned or operated by a public hospital that was discovered and
reported prior to 1 January 1993, the Secretary may grant a waiver under this section without
regard to whether the annual operating fee imposed by G.S. 143-215.94C was paid. In order to
request a waiver under this section, a public hospital shall make a specific written request to the
Secretary setting out the reasons for the requested waiver. The public hospital shall provide the
Secretary with all financial and other information necessary to determine whether a wiaver should
be granted. The Secretary shall grant a waiver under this section only if the Secretary finds that
the public hospital has cooperated fully with the Department in developing and implementing the
cleanup plan and that reimbursement of cleanup costs would render the public hospital insolvent
or would otherwise result in an exteme hardship to the hospital."
Effect of Amendments. - The 1995 amendment, effective January 1, 1996, in subsection (b)
added the next to last sentence, and added "provided that the fee for all commercial underground
storage tanks located at the same facility shall be due at the same time" at the end of the last
sentence; and in subsection (e) substituted "annual operating fee" for "tank fee" twice in the first
sentence and made a related change, added the last sentence of the introductory language, added
subdivisions (e)(1) through (e)(4), and made a stylistic change.
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(4) Costs intended to be paid for by the Commercial Fund.
(5) Costs associated with the administration of any underground storage tank program other
than the program administered pursuant to this Part.
(6) Costs paid or reimbursed by or from any source other than the Noncommercial Fund,
including, but not limited to, any payment or reimbursement made under a contract of insurance.
(e) The Noncommercial Fund shall be treated as a special trust fund and shall be credited with
interest by the State Treasurer pursuant to G.S. 147-69.2 and G.S. 147-69.3.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 6; 1991, c. 538, s. 6; 1991 (Reg. Sess.,
1992), c. 890, s. 17; 1993, c. 400, s. 15; 1995, c. 377, s. 7.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
Session Laws 1995, c. 377, s. 17, provides that the amendments by Session Laws 1995, c. 377,
s. 7, to this section are applicable to any pending claim for reimbursement, and applicable
retroactively to any discharge or release that was discovered or reported on or after June 30,
1988, except that subsection (d)(6) is applicable only to a discharge or release that was
discovered or'reported on or after March 30, 1990.
Effect of Amendments. - The 1995 amendment, effective July 5, 1995, in subsection (d) added
subdivision (d)(6) and made punctuation changes. For the effective date of these amendments, see
Editor's note.
§ 143-215.94E. Rights and obligations of the owner and operator.
(a) Upon a determination that a discharge or release of petroleum from an underground
storage tank has occurred, the owner or operator shall notify the Department pursuant to G.S.
143-215.85. The owner or operator shall immediately undertake to collect and remove the
discharge or release and to restore the area affected in accordance with the requirements of this
Article.
(b) In the case of a discharge or release from a commercial underground storage tank where
the owner or operator has been identified and has proceeded with cleanup, the owner or operate
may elect to have the Commercial Fund pay or reimburse the owner or operator for any costs
described in subsection (b) or (bl) of G.S. 143-215.94B that exceed the amounts for which the
owner or operator is responsible under that subsection. The sum of payments by the owner or
operator and the payments from the Commercial Fund shall not exceed one million dollars
($1,000,000) per discharge or release except as provided in G.S. 143-215.94B(b2).
(bl) In the case of a discharge or release from a commercial underground storage laiuv wua.c
the owner and operator cannot be identified or located, or where the owner and operator fail to
proceed as required by subsection (a) of this section, if the current landowner of the land in which
the commercial underground storage tank is located notifies the Department in accordance with
G'.S. 143-215.85 and undertakes to collect and remove the discharge or release and to restore the
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area affected in accordance with the requirements of this Article and applicable federal and State
laws, regulations, and rules, the current landowner may elect to have the Commercial Fund pay or
reimburse the current landowner for any costs described in subdivisions (1), (2), (2a), (3), and (4)
of G.S. 143-215.94B(b) or G.S. 143-215.94B(bl) that exceed the amounts for which the owner
or operator is responsible under that subsection. The current landowner is not eligible for payment
or reimbursement until the current landowner has paid the costs described in subdivisions (1), (2),
(2a), (3), and (4) of G.S. 143-215.94B(b) or G.S. 143-215.94B(bl) for which the owner or
operator is responsible. Eligibility for reimbursement under this subsection may be transferred
from a current landowner who has paid the costs described in subdivisions (1), (2), (2a), (3), and
(4) of G.S. 143-215.94B(b) or G.S. 143-215.94B(bl) to a subsequent landowner. The sum of
payments from the Commercial Fund and from all other sources shall not exceed one million
dollars ($1,000,000) per discharge or release except as provided in G.S. 143-215.94B(b2). This
subsection shall not be construed to require a current landowner to cleanup a discharge or release
of petroleum from an underground storage tank for which the current landowner is not otherwise
responsible. This subsection does not alter any right, duty, obligation, or liability of a current
landowner, former landowner, subsequent landowner, owner, or operator under other provisions
of law. This subsection shall not be construed to limit the authority of the Department to engage
in a cleanup under this Article or any other provision of law. In the event that an owner or
operator is subsequently identified or located, the Secretary shall seek reimbursement as provided
in G.S. 143-215.94G(d). The current landowner shall submit documentation of all expenditures as
required by G. S. 143 -215.94G(b).
(c) In the case of a discharge or release from a noncommercial underground storage tank or a
commercial underground storage tank eligible for the Noncommercial Fund in accordance with
G.S. 143-215.94D(b), the owner or operator may elect to have the Noncommercial Fund pay or
reimburse the owner or operator for the costs described in G.S. 143-215.94D(bl) up to a
maximum of one million dollars ($1,000,000) per discharge or release.
(d) In any case where the costs described in G.S. 143-215.94B(b), 143-215.94B(bl), or
143-215.94D(bl) exceed one million dollars ($1,000,000), or one million five hundred thousand
dollars ($1,500,000) if G.S. 143-215.94B(b2) applies, the provisions of Article 21A of this
Chapter or any other applicable statute or common law principle regarding liability shall apply for
the amount in excess of one million dollars ($1,000,000) or, if G.S. 143-215.94B(b2) applies, one
million five hundred thousand dollars ($1,500,000). Nothing contained in this Part shall limit or
modify any liability that any party may have pursuant to Article 21A of this Chapter, any other
applicable statute, or at common law.
(e) When the owner or operator pays the costs described in G.S. 143-215.94B(b),
143-215.94B(bl), or 143-215.94D(bl) resulting from a discharge or release of petroleum from an
underground storage tank, the owner or operator may seek reimbursement from the appropriate
fund for any costs he may elect to have either the Commercial Fund or the Noncommercial Fund
pay in accordance with subsections (b) and (c) of this section. The Department shall reimburse the
owner or operator for all costs he may elect to have the appropriate fund pay that the Department
determines to be reasonable and necessary and for which appropriate documentation is submitted.
The Department may contract for any services necessary to evaluate any claim for reimbursement
or compensation from either the Commercial Fund or the Noncommercial Fund, may contract for
any expert witness or consultant services necessary to defend any decision to pay or deny any
claim for reimbursement, and may pay the cost of these services from the fund against which the
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claim is made; provided that in any fiscal year the Department shall not expend from either fund
more than one percent (1%) of the unobligated balance of the fund on 30 June of the previous
fiscal year. The cost of contractual services to evaluate a claim or for expert witness or consultant
services to defend a decision with respect to a claim shall be included as costs under G.S.
143-215.94B(b) and G.S. 143-215.94D(bl). The Commission shall adopt rules governing
reimbursement of necessary and reasonable costs. An owner or operator whose claim for
reimbursement is denied may appeal a decision of the Department as provided in Article 3 of
Chapter 150B of the General Statutes. If the owner or operator is eligible for reimbursement
under this section and the cleanup extends beyond a period of three months, the owner or
operator may apply to the Department for interim reimbursements to which he is entitled under
this section on a quarterly basis.
(el) The Department shall not pay any third party or reimburse any owner or operator who has
paid any third party pursuant to any settlement agreement or consent judgment relating to a claim
by or on behalf of a third party for compensation for bodily injury or property damage unless thf1
Department has approved the settlement agreement or consent judgment prior to entry into the
settlement agreement or consent judgment by the parties or entry of a consent judgment by the
court. The approval or disapproval by the Department of a proposed settlement agreement or
consent judgment shall be subject to challenge only in a contested case filed under Chapter 150B
of the General Statutes. The Secretary shall make the final agency decision in a contested case
proceeding under this subsection.
(f) The Department shall not reimburse any owner or operator until the fund from which
reimbursement will be made reaches one million dollars ($1,000,000).
(fl) Any person seeking payment or reimbursement from either the Commercial Fund or the
Noncommercial Fund shall certify to the Department that the costs to be paid or reimbursed by
the Commercial Fund or the Noncommercial Fund are not eligible to be paid or reimbursed by or
from any other source, including any contract of insurance. If any cost paid or reimbursed by the
Commercial Fund or the Noncommercial Fund is eligible to be paid or reimbursed by or from
another source, that cost shall not be paid from, or if paid shall be repaid to, the Commercial Fund
or the Noncommercial Fund. As used in this Part, the phrase "any other source including any
contract of insurance" does not include self-insurance.
(g) No owner or operator shall be reimbursed pursuant to this section, and the Department
shall seek reimbursement of the appropriate fund or of the Department for any monies disbursed
from the appropriate fund or expended by the Department if:
(1) The owner or operator has willfully violated any substantive law, rule, or regulation
applicable to underground storage tanks and intended to prevent or mitigate discharges or
releases or to facilitate the early detection of discharges or releases;
(2) The discharge or release is the result of the owner's or operator's willful or wanton
misconduct; or
(3) The owner or operator has failed to pay any annual tank operating fee due pursuant to
G.S. 143-215.94C.
(h) Subdivision (1) of subsection (g) of this section shall not be construed to limit the right of
an owner or operator to contest notices of violation or orders issued by the Department.
Subdivision (1) of subsection (g) of this section shall not apply to a payment or reimbursement
pursuant to this section if, at the time of the discharge or release, the owner or operator holds a
valid operating permit as required by G.S. 143-215.94U.
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(i) An owner or operator who notifies the Department of an intention to close or upgrade a
commercial underground storage tank as provided in G.S. 143-215.94B(b)(2a) shall commence
the closure or upgrade prior to 1 July 1994 and shall complete the closure or upgrade prior to 1
January 1995. An owner who notifies the Department of an intention to close or upgrade a
commercial underground storage tank and who fails to commence and complete the closure as
specified in this subsection is subject to a civil penalty as provided in G.S. 143-215.94K. The
provisions of G.S. 143-215.94B(b)(2a) do not apply if an owner or operator who notifies the
Department of an intention to close or upgrade a commercial underground storage tank fails to
commence or complete the closure or upgrade within the dates specified in this subsection.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 7; 1991, c. 538, ss. 7, 22; 1991 (Reg.
Sess., 1992), c. 817, s. 2; 1993, c. 400, s. 15; c. 402, s. 3; 1995, c. 377, s. 8.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
Session Laws 1995, c. 377, s. 17, provides that the amendments by Session Laws 1995, c. 377,
s. 8, to this section are applicable to any pending claim for reimbursement, and applicable
retroactively to any discharge or release that was discovered or reported on or after June 30,
1988, except that subsection (fl) is applicable only to payments and reimbursements made on or
after July 5, 1995 and only to costs that are eligible to be paid or reimbursed from either the
Commercial Fund or the Noncommercial Fund for a discharge or release that was discovered or
reported on or after March 30, 1990.
Effect of Amendments. - The 1995 amendment, effective July 5, 1995, in subsection (b)
substituted "subsection (b) or (bl) of G.S. 143-215.94B" for "G.S. 143-215.94B(b)" in the first
sentence, and added "except as provided in G.S. 143-215.94B(b2)" in the second sentence; in
subsection (bl) added "or G.S. 143-215.94B(bl)" in the first, second and third sentences, and
added "except as provided in G.S. 143-215.94B(b2)" in the fourth sentence; in the first sentence
of subsection (d) added " 143-215.94B(bl)", "or one million five hundred thousand dollars
($1,500,000) if G.S. 143-215.94B(b2) applies", "principle", and "or, if G.S. 143-215.94B(b2)
applies, one million five hundred thousand dollars ($1,500,000)", and made a stylistic change; in
subsection (e) added "143-215.94B(bl)" in the first sentence, inserted "Fund" following
"Commercial", added the third and fourth sentences, and made stylistic changes; added
subsections (el) and (fl); and added the last sentence in subsection (h). For the effective date of
these amendments, see Editor's note.
§ 143-215.94F. Limited amnesty.
Any owner or operator who reports a suspected discharge or release from an underground
storage tank prior to 1 October 1989 shall not be liable for any civil penalty that might otherwise
be imposed pursuant to G.S. 143-215.88A(a) for violations of G.S. 143-215.83(a) and G.S.
143-215.85. The limited amnesty provided by this section'shall not apply upon a finding by the
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143-215.94E(b). The Department shall allow credit for all expenditures that the Department
determines to be reasonable and necessary. The Department may not pay for any costs for which
the Commercial Fund was established until the owner or operator has paid the amounts specified
in G.S. 143-215.94E(b).
(c) The Secretary shall keep a record of all expenses incurred for the services of State
personnel and for the use of the State's equipment and material.
(d) The Secretary shall seek reimbursement through any legal means available, for:
(1) Any costs not authorized to be paid from either the Commercial or the Noncommercial
Fund;
(2) The amounts provided for in G.S. 143-215.94B(b) or G.S. 143-215.94B(bl) required to
be paid for by the owner or operator pursuant to G.S. 143-215.94E(b) where the owner or
operator of a commercial underground storage tank is later.identified or located;
(3) The amounts provided for in G.S. 143-215.94B(b) or G.S. 143-215.94B(bl) required to
be paid for by the owner or operator; pursuant to G.S. 143-215.94E(b) where the owner or
operator of a commercial underground storage tank failed to proceed as required by G.S.
143-215.94E(a);
(3a) The amounts provided for by G.S. 143-215.94B(b)(5) required to be paid by the owner
or operator to third parties for the cost of providing interim alternative sources of drinking water
to third parties and the initial cost of providing permanent alternative sources of drinking water to
third parties;
(4) Any funds due under G.S. 143-215.94E(g); and
(5) Any funds to which the State is entitled under any federal program providing for the
cleanup of petroleum discharges or releases from underground storage tanks.
(e) In the event that a civil action is commenced to secure reimbursement pursuant to
subdivisions (1) through (4) of subsection (d) of this section, the Secretary may recover, in
addition to any amount due, the costs of the action, including but not limited to reasonable
attorney's fees and investigation expenses. Any monies received or recovered as reimbursement
shall be paid into the appropriate fund or other source from which the expenditures were made.
(f) In the event that a recovery equal to or in excess of the amounts required to be paid for by
the owner or operator pursuant to G.S. 143-215.94E(b) is recovered pursuant to subdivisions (2)
and (3) of subsection (d) of this section for the costs described in G.S. 143-215.94B(b) or G.S.
143-215.94B(bl), the Department shall transfer funds from the Commercial Fund that would have
been paid from the Commercial Fund pursuant to subsection (b) or (b2) of G.S. 143-215.94B if
the owner or operator had proceeded with the cleanup, but which were paid from the
Noncommercial Fund, into the Noncommercial Fund.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652. s. 9; 1991, c. 538, ss. 8, 23; 1993, c. 400, s.
15; c. 402, s. 4; 1995, c. 377, s. 9.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
Session Laws 1993, c. 402, which amended this section, in s. 11, which expires June 30, 1995,
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Commission that the discharge or release was the result of gross negligence or an intentional act.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 8.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
§ 143-215.94G. Authority of the Department to engage in cleanups; actions for fund
reimbursement.
(a) The Department may use staff; equipment, or materials under its control or provided by
other cooperating federal, State, or local agencies and may contract with any agent or contractor
it deems appropriate to investigate a release, to develop and implement a cleanup plan, to provide
interim alternative sources of drinking water to third parties, and to pay the initial costs for
providing permanent alternative sources of drinking water to third parties, and shall pay the costs
resulting from commercial underground storage tanks from the Commercial Fund and shall pay
the costs resulting from noncommercial underground storage tanks from the Noncommercial
Fund, whenever there is a discharge or release of petroleum from any of the following:
(1) A noncommercial underground storage tank.
(2) Anunderground storage tank whose owner or operator cannot be identified or located.
(3) An underground storage tank whose owner or operator fails to proceed as required by
G.S. 143-215.94E(a).
(4) A commercial underground storage tank taken out of operation prior to 1 January 1974 if,
when the discharge or release is discovered, neither the owner nor operator owns or leases the
land on which the underground storage tank is located.
(al) Every State agency shall provide to the Department to the maximum extent feasible such
staff, equipment, and materials as may be available and useful to the development and
implementation of a cleanup program.
(a2) The cost of any action authorized under subsection (a) of this section shall be paid, to the
extent funds are available, from the following sources in the order listed:
(1) Any funds to which the State is entitled under any federal program providing for the
cleanup of petroleum discharges or releases from underground storage tanks, including, but not
limited to, the Leaking Underground Storage Tank Trust Fund established pursuant to 26 U.S.C.
§ 4081 and 42 U.S.C. § 6991b(h).
(2) The Commercial Fund or the Noncommercial Fund.
(b) Whenever the discharge or release of a petroleum product is from a commercial
underground storage tank, the Department may supervise the cleanup of environmental damage
required by G.S. 143-215.94E(a). If the owner or operator elects to have the Commercial Fund
reimburse or pay for. any costs allowed under subsection (b) or (bl) of G.S. 143-215.94B, the
Department shall require the owner or operator to submit documentation of all expenditures
claimed for the purposes of establishing that the owner or operator has spent the amounts
required to be paid by the owner or operator pursuant to and in accordance with G.S.
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provides:
"The Secretary of Environment, Health, and Natural Resources may waive reimbursement
under subdivisions (1), (3), (3a), and (5) of G.S. 143-215.94G, as amended by Section 5 of this
act, of all or any part of the costs of developing and implementing a cleanup plan for a discharge
or release of petroleum from an underground storage tank that is owned or operated by a public
hospital, as defined by G.S. 131E-48. With respect to a discharge or release from a commercial
underground storage tank owned or operated by a public hospital that was discovered and
reported prior to 1 January 1993, the Secretary may grant a waiver under this section without
regard to whether the annual operating fee imposed by G.S. 143-215.94C was paid. In order to
request a waiver under this section, a public hospital shall make a specific written request to the
Secretary setting.out the reasons for the requested waiver. The public hospital shall provide the
Secretary with all financial and other information necessary to determine whether a wiaver should
be granted. The Secretary shall grant a waiver under this section only if the Secretary finds that
the public hospital has cooperated fully with the Department in developing and implementing the
cleanup plan and that reimbursement of cleanup costs would render the public hospital insolvent
or would otherwise result in an exteme hardship to the hospital."
Session Laws 1995, c. 377, s. 17, provides that the amendments by Session Laws 1995, c. 377,
s. 9, to this section are applicable to any pending claim for reimbursement, and applicable
retroactively to any discharge or release that was discovered or reported on or after June 30,
1988.
Effect of Amendments. - The 1995 amendment, effective July 5, 1995, added "to investigate a
release" in, the introductory language of subsection (a); substituted "subsection (b) or (bl) of G.S.
143-215.94B" for "G.S. 143-215.94B(b)" in the second sentence of subsection (b); added "or
G.S. 143-215.94B(bl)" in subdivisions (d)(2) and (d)(3); and in subsection (f) inserted "or G.S.
143-215.94B(bl)", and substituted "subsection (b) or (b2) of G.S. 143-215.94B" for "G.S.
143-215.94B(b)." For the effective date of these amendments, see Editor's note.
§ 143-215.94H. Financial responsibility.
The Department shall require each owner and operator of a petroleum underground storage
tank who is required to demonstrate financial responsibility under rules promulgated by the United
States Environmental Protection Agency pursuant to 42 U.S.C. § 6991b(d) to maintain evidence
of financial responsibility of not less than the amounts required to be paid for by the owner or
operator pursuant to G.S. 143-215.94E(b) per occurrence for costs described in G.S.
143-215.94B(b) and G.S. 143-215.94D(bl). Financial responsibility may be established in
accordance with rules adopted by the Commission which shall provide that financial responsibility
may be established by either insurance, guarantee, surety bond, letter of credit, qualification as a
self-insurer, or any combination thereof. The compliance date schedule for demonstrating financial
responsibility shall conform to the schedule adopted by the Environmental Protection Agency.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 10; 1993, c. 402, s. 5.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s.'5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
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c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
§ 143-215.941. Insurance pools authorized; requirements.
(a) As used in this section, "Commissioner" means the Commissioner of Insurance of the State
of North Carolina.
(b) Owners and operators of underground storage tanks may demonstrate financial
responsibility by establishing insurance pools which provide insurance coverage to pool members
in at least the minimum amounts specified in G.S. 143-215.94H. Each such pool shall be operated
by a board of trustees consisting of at least five persons who are elected or appointed officials of
pool members. The board of trustees of each pool shall:
(1) Establish terms and condition^ of coverage within the pool, including underwriting
criteria, applicable deductible levels, the maximum level of claims that the pool will self-insure,
and exclusions of coverage;
(2) Ensure that all valid claims are paid promptly;
(3) Take all necessary precautions to safeguard the assets of the pool;
(4) Maintain minutes of its meetings and make those minutes available to the Commissioner;
(5) Designate an administrator to carry out the policies established by the board of trustees
and to provide continual management of the pool, and delineate in written minutes of its meetings
the areas of authority it delegates to the pool's administrator;
(6) Establish the amount of insurance to be purchased by the pool to provide coverage over
and above the claims that are not to be satisfied directly from the pool's resources;
(7) Establish the amount, if any, of aggregate excess insurance coverage to be purchased and
maintained in the event that the pool's resources are exhausted in a given fiscal period; and
(8) Establish guidelines for membership in the pool, including the amount of money to be
collected from each pool member to form and fund the pool.
(c) The board of trustees may not:
(1) Extend credit to individual members for payment of a premium, except pursuant to
payment plans approved by the Commissioner; or
(2) Borrow any monies from.the pool or in the name of the pool, except in the ordinary
course of business, without first advising the Commissioner of the nature and purpose of the loan
and obtaining prior approval from the Commissioner.
(d) A contract or agreement made pursuant to this section must contain provisions:
(1) For a system or program of loss control;
(2) For termination of membership including both:
a. Cancellation of individual membership in the pool by the pool; and
b. Election by an individual member of the pool to terminate its participation;
(3) That a pool or a terminating member must provide at least 90 days' written notice of
cancellation or termination;
(4) Requiring the pool to pay all claims for which each member incurs liability during each
member's period of membership, except:
a. Where a member has individually retained the risk;
b. Where the risk is not covered; or
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c. For amounts of claims above the coverage provided by the pool;
(5) For the maintenance of claim reserves equal to known incurred losses and loss adjustment
expenses and to an estimate of incurred but not reported losses;
(6) For compliance with any applicable federal requirements regarding financial responsibility
for underground storage tanks;
(7) For a final accounting and settlement of the obligations of or refunds to a terminating
member to occur when all incurred claims are concluded, settled, or paid;
(8) That the pool may establish offices where necessary in this State and employ necessary
staff to carry out the purposes of the pool;
(9) That the pool may retain legal counsel, actuaries, claims adjusters, auditors, engineers,
private consultants, and advisors, and other persons as the board of trustees or the administrator
deems to.be necessary;
(10) That the pool may make and alter bylaws and rules pertaining to the exercise of its
purpose and powers;
(11) That the pool may purchase,'lease, or rent real and personal property it deems to be
necessary; and
(12) That the pool may enter into financial services agreements with financial institutions and
that it may issue checks in its own name.
(e) In the event that either the pool or an individual pool member gives notice of an intent to
cancel or terminate participation in the pool as provided by subdivision (4) of subsection (d) of
this section, the pool shall so notify both the Commissioner and the Secretary within five business
days of the issuance or receipt of such notice by the pool. In addition, the pool shall notify both
the Commissioner and the Secretary within five business days of the date such cancellation or
termination becomes effective, unless notice of cancellation or termination is rescinded.
(f) The formation and operation of an insurance pool under this section shall be subject to
approval by the Commissioner who shall, after notice and hearing, establish reasonable
requirements and rules for the approval and monitoring of such pools, including prior approval of
pool administrators and provisions for periodic examinations of financial condition. The
Commissioner may disapprove an application for the formation of an insurance pool, and may
suspend or withdraw such approval whenever he finds that such applicant or pool:
(1) Has refused to submit its books, papers, accounts, or affairs to the reasonable inspection
of the Commissioner or his representative;
(2) Has refused, or its officers, agents, or administrators have refused, to furnish satisfactory
evidence of its financial and business standing or solvency;
(3) Is insolvent, or is in such condition that its further transaction of business in this State is
hazardous to its members and creditors in this State and to the-public;
(4) Has refused or neglected to pay a valid final judgment against it within 60 days after its
rendition;
(5) Has violated any law of this State or has violated or exceeded the powers granted by its
members;
(6) Has failed to pay any taxes, fees, or charges imposed in this^tate within 60 days after they
are due and payable, or within 60 days after final disposition or any legal contest with respect to
liability therefor; or
(7) Has been found insolvent by a court of any other state, by the insurance regulator or other
proper officer or agency of any other state, and has been prohibited from doing business in such
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state.
(g) Each pool shall be audited annually at the expense of the pool by a certified public
accounting firm, with a copy of the report available to the governing body or chief executive
officer of each member of the pool and to the Commissioner. The board of trustees of the pool
shall obtain an appropriate actuarial evaluation of the loss and loss adjustment expense reserves of
the pool, including an estimate of losses and loss adjustment expenses incurred but not reported.
The provisions ofG.S. 58-2-131, 58-2-132, 58-2-133, 58-2-150, 58-2-155, 58-2-165, 58-2-180,
58-2-185, 58-2-190, 58-2-200, and 58-6-5 apply to each pool and to persons that administer the
pools. Annual financial statements required by G.S. 58-2-165 shall be filed by each pool within 60
days after the end of the pool's fiscal year. All financial statements required by this section shall be
prepared in accordance with generally accepted statutory accounting principles.
(h) If, as a result of the annual audit or an examination by the Commissioner, it appears that
the assets of a pool are insufficient to enable the pool to discharge its legal liabilities and other
obligations, the Commissioner shall qotify the administrator and the board of trustees of the pool
of the deficiency and his list of recommendations to abate the deficiency, including a
recommendation not to add any new members until the deficiency is abated. If the pool fails to
comply with the recommendations within 30 days after the date of the notice, the Commissioner
may apply to the Superior Court of Wake County for an order requiring the pool to abate the
deficiency and authorizing the Commissioner to appoint one or more special deputy
commissioners, counsel, clerks, or assistants to oversee the implementation of the Court's order.
The Commissioner has all of the powers granted to him under Article 17A of General Statute
Chapter 58 relating to rehabilitation and liquidation of insurers; and the provisions of that Article
apply to this section to the extent they are not in conflict with this section. The compensation and
expenses of such persons shall be fixed by the Commissioner, subject to the approval of the
Court, and shall be paid out of the funds or assets of the pool.
(i) Each pool contract shall provide that the members of the pool shall be assessed on a pro
rata basis as calculated by the amount of each member's average annual contribution in order to
satisfy the amount of any deficiency where a pool is determined to be insolvent, financially
impaired, or is otherwise found to be unable to discharge its legal liabilities and other obligations.
(j) In the event that the Commissioner finds that a pool is insolvent, financially impaired, or
otherwise, unable to discharge its legal liabilities or obligations, or if the Commissioner at any
time has reason to believe that any owner or operator is unable to demonstrate financial
responsibility as required by G.S. 143-215.94H and rules adopted by the Commission as a result
of the financial condition of the pool or for any other reason, the Commissioner shall so notify the
Secretary.
(k) The provisions of Article 48 of Chapter 58 do not apply to any risks retained by any pool.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 11; 1995, c. 193, s. 66.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
Much of Article 17A of Chapter 58, referred to in subsection (h) of this section, was repealed by
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(6) Occasional, inadvertent, short-term violations causing no significant harm to the
environment or risk to the. public health, safety, or welfare. If the violation occurs within 30 days
of a prior violation or lasts for more than 24 hours, it is not an occasional, short-term violation.
(g) All general defenses, affirmative defenses, and bars to prosecution that may apply with
respect to other criminal offenses under State criminal offenses may apply to prosecutions brought
under this section or other criminal statutes that refer to this section and shall be determined by
the courts of this State according to the principles of common law as they may be applied in the
light of reason and experience. Concepts of justification and excuse applicable under this section
may be developed in the light of reason and experience.
(1995, c. 377, s. 3.)
Editor's Note. - Session Laws 1995, c. 377, s. 17, provides that this section is effective January
1, 1996, and is applicable to offenses occurring or continuing on or after that date.
Session Laws 1995, c. 377, s. 15(d), provides for the Department of Environment, Health and
Natural Resources to report its findings regarding the extent to which abandoned petroleum
underground storage tanks pose a risk to human health or the environment, and to make
recommendations to the Environmental Review Commission by January 1, 1997.
§ 143-215.94Y. Enforcement procedures; injunctive relief.
Whenever the Department has reasonable cause to believe that any person has violated or is
threatening to violate any of the provisions of this Part, any of the terms of any permit issued
pursuant to this Part, or a rule implementing this Part, the Department may, either before or after
the institution of any other action or proceeding authorized by this Part, request the Attorney
General to institute a civil action in the name of the State upon the relation of the Department for
injunctive relief to restrain the violation or threatened violation and for such other and further
relief in the premises as the court shall deem proper. The Attorney General may institute such
action in the superior court of the county in which the violation occurred or may occur or, in his
discretion, in the superior court of the county in which the person responsible for the violation or
threatened violation resides or has his or its principal place of business. Upon a determination by
the court that the alleged violation of the provisions of this Part or the regulations of the
Commission has occurred or is threatened, the court shall grant the relief necessary to prevent or
abate the violation or threatened violation. Neither the institution of the action nor any of the
proceedings thereon shall relieve any party to such proceedings from any penalty prescribed for
violation of this Part.
(1995, c. 377, s. 3.)
Editor's Note. - Session Laws 1995, c. 377, s. 15(d), provides for the Department of
Environment, Health and Natural Resources to report its findings regarding the extent to which
abandoned petroleum underground storage tanks pose a risk to human health or the environment,
and to make recommendations to the Environmental Review Commission by January 1, 1997.
Session Laws 1995, c. 377, s. 17, provides that this section is effective January 1, 1996, and is
applicable to offenses occurring or continuing on or after that date.
§ 143-215.94Z: Reserved for future codification purposes.
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a. His conduct, if he is aware of the nature of his conduct;
b. An existing circumstance, if he is aware or believes that the circumstance exists; or
c. A result of his conduct, if he is aware or believes that his conduct is substantially certain
to cause danger of death or serious bodily injury.
(3) Under this subsection, in determining whether a defendant who is a natural person knew
that his conduct placed another person in imminent danger of death or serious bodily injury:
a. The person is responsible only for actual awareness or actual belief that he possessed;
and
b. Knowledge possessed by a person other than the defendant but not by the defendant
himself may not be attributed to the defendant.
(4) It is an affirmative defense to a prosecution under this subsection that the conduct charged
was conduct consented to by the person endangered and that the danger and conduct charged
were reasonably foreseeable hazards of an occupation, a business, or a profession; or of medical
treatment or medical or scientific experimentation conducted by professionally approved methods
and such other person had been made aware of the risks involved prior to giving consent. The
defendant may establish an affirmative defense under this subdivision by a preponderance of the
evidence.
(d) No proceeding shall be brought or continued under this section for or on account of a
violation by any person who has previously been convicted of a federal violation based upon the
same set of facts.
(e) In proving the defendant's possession of actual knowledge, circumstantial evidence may be
used, including evidence that the defendant took affirmative steps to shield himself from relevant
information. Consistent with the principles of common law, the subjective mental state of
defendants may be inferred from their conduct.
(f) For the purposes of the felony provisions of this section, a person's state of mind shall not
be found "knowingly and willfully" or "knowingly" if the conduct that is the subject of the
prosecution is the result of any of the following occurrences or circumstances:
(1) A natural disaster or other act of God which could not have been prevented or avoided by
the exercise of due care or foresight.
(2) An act of third parties other than agents, employees, contractors, or subcontractors of the
defendant.
(3) An act done in reliance on the written advice or emergency on-site direction of an
employee of the Department. In emergencies, oral advice may be relied upon if written
confirmation is delivered to the employee as soon as practicable after receiving and relying on the
advice.
(4) An act causing no significant harm to the environment or risk to the public health, safety,
or welfare and done in compliance with other conflicting environmental requirements or other
constraints imposed in writing by environmental agencies or officials after written notice is
delivered to all relevant agencies that the conflict exists and will cause a violation of the identified
standard.
(5) Violations causing no significant harm to the environment or risk to the public health,
safety, or welfare for which no enforcement action or civil penalty could have been imposed under
any written civil enforcement guidelines in use by the Department at the time. This subdivision
shall not be construed to require the Department to develop or use written civil enforcement
guidelines.
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(f) If any civil penalty has not beea paid within 30 days after notice of assessment has been
served on the violator, the Secretary shall request the Attorney General to institute a civil action
in the superior court of any county in which the violator resides or has his or its principal place of
business to recover the amount of the assessment, unless the violator contests the assessment as
provided in subsection (d) of this section, or requests remission of the assessment in whole or in
part as provided in subsection (e) of this section. If any civil penalty has not been paid within 30
days after the final agency decision or court order has been served on the violator, the Secretary
shall request the Attorney General to institute a civil action in the superior court of any county in
which the violator resides or has his or its principal place of business to recover the amount of the
assessment. Such civil actions must be filed within three years of the date the final agency decision
or court order was served on the violator.
(g) The Secretary may delegate his powers and duties under this section to the Director of the
Division of Environmental Management of the Department.
(1995, c. 377, s. 3.)
Editor's Note. - Session Laws 1995, c. 377, s. 17, provides that this section is effective January
1, 1996, and is applicable to offenses occurring or continuing on or after that date.
Session Laws 1995, c. 377, s. 15(d), provides for the Department of Environment, Health an^
Natural Resources to report its findings regarding the extent to which abandoned petroleum
underground storage tanks pose a risk to human health or the environment, and to make
recommendations to the Environmental Review Commission by January 1, 1997.
§ 143-215.94X. Enforcement procedures: criminal penalties.
(a) Any person who negligently commits any of the offenses set out in subdivisions (1) through
(9) of G.S. 143-215.94W(a) shall be guilty of a Class 2 misdemeanor which may include a fine not
to exceed fifteen thousand dollars ($15,000) per day of violation, provided that such fine shall not
exceed a cumulative total of two hundred thousand dollars ($200,000) for each period of 30 days
during which a violation continues. '; "
(b) Any person who knowingly and willfully commits any of the offenses set out in
subdivisions (1) through (5) of G.S. 143-215.94W(a) shall be guilty of a Class I felony, which
may include a fine not to exceed one hundred thousand dollars ($100,000) per day of violation,
provided that this fine shall not exceed a cumulative total of five hundred thousand dollars
($500,000) for each period of 30 days during which a violation continues. For the purposes of this
subsection, the phrase "knowingly and willfully" shall mean intentionally and consciously as the
courts of this State, according to the principles of common law interpret the phrase in the light of
reason and experience.
(c) (1) Any person who knowingly commits any of the offenses set out in subdivisions (1)
through (5) of G.S. 143-215.94W(a) and who knows at that.time that he thereby places another
nerson in imminent danger of death or serious bodily injury shall be guilty of a Class C felony,
fich may include a fine not to exceed two hundred fifty thousand dollars ($250,000) per day of
. jlation, provided that this fine shall not exceed a cumulative total of one million dollars
($1,000,000) for each period of 30 days during which a violation continues.
(2) For the purposes of this subsection, a person's state of mind is knowing with respect to:
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§ 143-215.94W. Enforcement procedures: civil penalties.
(a) A civil penalty of not more than ten thousand dollars ($10,000) may be assessed by the
Secretary against any person who:
(1) Violates any provision of this Part or rule adopted pursuant to this Part.
(2) Fails to apply for or to secure a permit required by this Part.
(3) Violates or fails to act in accordance with the terms, conditions, or requirements of any
permit issued pursuant to this Part.
(4) Fails to file, submit, or make available, as the case may be, any documents, data, or reports
required by this Part.
(5). Violates or fails to act in accordance with the terms, conditions, or requirements of any
special order or other appropriate document issued pursuant to G.S. 143-215.2.
(6) Falsifies or tampers with any recording or monitoring device or method required to be
operated or maintained under this Part or rules implementing this Part.
(7) Knowingly renders inaccurate any recording or monitoring device or method required to
be operated or maintained under this Part or rules implementing this Part.
(8) Knowingly makes any false statement, representation, or certification in any application,
record, report, plan, or other document filed or required to be maintained under this Part or a rule
implementing this Part.
(9) Knowingly makes a false statement of a material fact in a rule-making proceeding or
contested case under this Part. ¦
(10) Refuses access to the Commission or its duly designated representative to any premises
for the purpose of conducting a lawful inspection provided for in this Part.
(b) If any action or failure to act for which a penalty may be assessed under this section is
continuous, the Secretary may assess a penalty not to exceed ten thousand dollars ($10,000) per
day for so long as the violation continues. A penalty for a continuous violation shall not exceed
two hundred thousand dollars ($200,000) for each period of 30 days during which the violation
continues.
(c) In determining the amount of the penalty, the Secretary shall consider the factors set out in
G.S. 143B-282.1(b). The procedures set out in G.S. 143B-282.1 shall apply to civil penalty
assessments that are presented to-the Commission for final agency decision.
(d) The Secretary shall notify any person assessed a civil penalty of the assessment and the
specific reasons therefor by registered or certified mail, or by any means authorized by G.S. 1A-1,
Rule 4. Contested case petitions shall be filed pursuant to G.S. 150B-23 within 30 days of receipt
of the notice of assessment. The Secretary shall make the final decision regarding assessment of a
civil penalty under this section.
(e) Requests for remission of civil penalties shall be filed with the Secretary. Remission
requests shall not be considered unless made within 30 days of receipt of the notice of assessment.
Remission requests must be accompanied by a waiver of the right to a contested case hearing
pursuant to Chapter 150B and a stipulation of the facts on which the assessment was based.
Consistent with the limitations in G.S. 143B-282.1(c) and (d), remission requests may be resolved
by the Secretary and the violator. If the Secretary and the violator are unable to resolve the
request, the Secretary shall deliver remission requests and his recommended action to the
Committee on Civil Penalty Remissions of the Environmental Management Commission
appointed pursuant to G.S. 143B-282.1(c).
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health or the environment that is no greater than the acceptable level of risk established by the
Commission, the Commission shall notify the owner, operator, or landowner who makes the
determination required by subsection (c) of this section that no cleanup, further cleanup, or
further action will be required unless the Commission later determines that the discharge or
release poses an unacceptable level of risk or a potentially unacceptable level of risk to human
health or the environment.
(e) If the Commission concludes under subsection (d) of this section that no cleanup, no
further cleanup, or no further action will be required, the Department shall not pay or reimburse
any costs otherwise payable or reimbursable under this Article from either the Commercial Or
Noncommercial Fund, other than reasonable and necessary to conduct the risk assessment
required by this section, unless:
(1) Cleanup is ordered or damages are awarded in a finally adjudicated judgment in an action
against the owner or landowner.
(2) Cleanup is required or damages are agreed to in a consent judgment approved by the
Department prior to its entry by the court.
(3) Cleanup is required or damages are agreed to in a settlement agreement approved by the
Department prior to its execution by the parties.
(4) The payment or reimbursement is for costs that were incurred prior to or as a result of
notification of a determination by the Commission that no cleanup, no further cleanup, or no
action is required.
(5) The payment or reimbursement is for costs that were incurred as a result of a later
determination by the Commission that the discharge or release poses a threat or potential threat to
human health or the environment as provided in subsection (d) of this section.
(f) This section shall not be construed to limit the authority of the Commission to require
investigation, initial response, and abatement of a discharge or release pending a determination by
the Commission under subsection (d) of this section as to whether cleanup, further cleanup, or
further action will be required.
(g) Subsections (c) through (e) of this section apply only to assessments and cleanups in
progress or begun on or after the date on which the rules adopted by the Commission pursuant to
subsection (b) of this section become effective.
(1995, c. 377, s. 1.)
Editor's Note. - Session Laws 1995, c. 377, s. 17, made this section effective upon ratification.
The Act was ratified July 5, 1995.
Session Laws 1995, c. 377, s. 15(d), provides for the Department of Environment, Health and
Natural Resources to report its findings regarding the extent to which abandoned petroleum
underground storage tanks pose a risk to human health or the environment, and to make
recommendations to the Environmental Review Commission by January 1, 1997.
Session Laws 1995, c. 377, s. 16, provides that this section constitutes a recent act within the
meaning of G.S. 150B-21.1 (a)(2), that the provisions of G.S. 150B-21.1(b) shall not apply to
temporary rules adopted to implement this section, and that the temporary rules may remain in
effect until the adoption of permanent rules by the Environmental Management Commission,
notwithstanding G.S. 150B-21.1(d).
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environment. Maintaining the solvency of the Commercial Fund and the Noncommercial Fund is
essential to these goals.
b. The sites at which discharges or releases from underground storage tanks occur vary
greatly in terms of complexity, soil types, hydrogeology, other physical and chemical
characteristics, current and potential future uses of groundwater, and the degree of risk that each
site may pose to human health and the environment.
c. Risk-based corrective action is a process that recognizes this diversity and utilizes an
approach where assessment and remediation activities are specifically tailored to the conditions
and risks of a specific site.
d. Risk-based corrective action gives the State flexibility in requiring different levels of
cleanup based on scientific analysis of different site characteristics, and allowing no action or no
further action at sites that pose little risk to human health or the environment.
e. A risk-based approach to the cleanup of environmental damage can adequately protect
human health and the environment while preventing excessive or unproductive cleanup efforts,
thereby assuring that limited resources are directed toward those sites that pose the greatest risk
to human health and the environment.
(2) The General Assembly intends:
a. To direct the Commission to adopt rules that will provide for risk-based assessment and
cleanup of discharges and releases from petroleum underground storage tanks. These rules are
intended to combine groundwater standards that protect current and potential future uses of
groundwater with risk-based analysis to determine the appropriate cleanup levels and actions.
b. That these rules apply to all discharges or releases that are reported on or after the date
the rules become effective in order to ascertain whether cleanup is necessary, and if so,, the
appropriate level of cleanup.
c. That these rules may be applied to any discharge or release that has been reported at the
time the rules become effective at the discretion of the Commission.
d. That these rules and decisions of the Commission and the Department in implementing
these rules facilitate the completion of more cleanups in a shorter period of time.
e. That neither the Commercial Fund nor the Noncommercial Fund be used to clean up
sites where the Commission has determined that a discharge or release poses a degree of risk to
human health or the environment-that is no greater than the acceptable level of risk established by
the Commission.
f. That until rules implementing a risk-based approach to assessment and cleanup are
adopted, the Commission implement the foregoing principles to the maximum extent possible
under existing rules.
(b) The Commission shall adopt rules to establish a risk-based approach for the assessment,
prioritization, and cleanup of discharges and releases from petroleum underground storage tanks.
The rules shall address, at a minimum, the circumstances where site-specific information should be
considered, criteria for determining acceptable cleanup levels, and the acceptable level or range of
levels of risk to human health and the environment.
(c) The Commission may require an owner or operator or a landowner eligible for
reimbursement under G.S. 143-215.94E(bl) to determine the degree of risk to human health and
the environment that is posed by a discharge or release from a petroleum underground storage
tank.
(d) If the Commission concludes that a discharge or release poses a degree of risk to human
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protection of the environment. In determining substantial compliance, the compliance history of
the owner or operator and any parent, subsidiary, or other affiliate of the owner, operator, or
parent may be considered.
(b) The operating permit shall be issued at the time the commercial underground storage
annual tank operating fee required under G.S. 143-215.94C(a) is paid and shall be valid from the
first day of the month in which the fee is due through the last day of the last month for which the
fee is paid in accordance with the schedule established by the Department under G.S.
143-215.94C(b).
(c) No person shall place a petroleum product, and no owner or operator shall cause a
petroleum product to be placed, into an underground storage tank at a facility for which the
owner or operator does not hold a currently valid operating permit.
(d) The Department shall issue an operating permit certificate for each facility that meets the
requirements of subsection (a) of this'section. The operating permit certificate shall identify the
number of tanks at the facility and shall conspicuously display the date on which the permit
expires. Except for the owner or operator, no person shall be liable under subsection (c) of this
section if an unexpired operating permit certificate is displayed at the facility, unless the person
knows or has reason to know that the owner or operator does not hold a currently valid operating
permit for the facility.
(e) The Department may revoke an operating permit only if the owner or operator fails to
continuously meet the requirements set out in subdivisions (1) through (4) of subsection (a) of
this section. If the Department revokes an operating permit, the owner or operator of the facility
for which the operating permit was issued shall immediately surrender the operating permit
certificate to the Department, unless the revocation is stayed pursuant to G.S. 150B-33. An
owner or operator may challenge a decision by the Department to deny or revoke an operating
permit by filing a contested case under Article 3 of Chapter 15 OB of the General Statutes. The
Secretary shall make the final agency decision regarding the revocation of a permit under this
section.
(1995, c. 377, s. 2.)
Editor's Note. - Session Laws 1995, c. 377, s. 17, made this section effective July 1, 1996.
Session Laws 1995, c. 377, s. 14, provides for the Department of Environment, Health and
Natural Resources to begin issuing operating permits and operating permit certificates required
under this section not later than January 1, 1996, and to issue operating permits to every facility
meeting the requirements of subsection (a) by July 1, 1996.
Session Laws 1995, c. 377, s. 15(d), provides for the Department of Environment, Health and
Natural Resources to report its findings regarding the extent to which abandoned petroleum
underground storage tanks pose a risk to human health or the environment, and to make
recommendations to the Environmental Review Commission by January 1, 1997.
§ 143-215.94V. Standards for petroleum underground storage tank cleanup.
(a) Legislative findings and intent.
(1) The General Assembly finds that:
a. The goals of the underground storage tank program are to protect human health and the
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underground storage tanks as provided by G.S. 143-215.3(a)(15) and G.S. 143B-282(2)h. Such
rules shall include standards and requirements applicable to both existing and new underground
storage tanks and tank systems, may include different standards and requirements based on tank
capacity, tank location, tank age, and other relevant factors, and shall include, at a minimum,
standards and requirements for:
(1) Design, construction, and installation, including monitoring systems;
(2) Notification to the Department, inspection, and registration,
(3) Recordation of tank location;
(4) Modification, retrofitting, and upgrading;
(5) General operating requirements;
(6) Release detection;
(7) Release reporting, investigation, and confirmation;
(8) Corrective action;
(9) Repair;
(10) Closure; and
(11) Financial responsibility.
(1989, c. 652, s. 14.)
Editor's Note. - Session Laws 1989, c. 652, s. 14 made this Part effective upon ratification. The
act was ratified July 15, 1989.
§ 143-215,94U. (Effective July 1, 1996) Registration of petroleum commercial underground
storage tanks; operation of petroleum underground storage tanks; operating permit required.
(a) The owner or operator of each petroleum commercial underground storage tank shall
annually obtain an operating permit from the Department for the facility at which the tank is
located. The Department shall issue an operating permit only if the owner or operator:
(1) Has notified the Department of the existence of all tanks as required by 40 Code of
Federal Regulations § 280.22 (1 July 1994 Edition) or 42 U.S.C. § 6991a, if applicable, at the
facility;
(2) Has paid all fees required under G.S. 143-215.94C for all commercial petroleum
underground storage tanks located at the facility;
(3) Complies with applicable release detection requirements set out in rules adopted pursuant
to this Chapter, notifies the Department of the method or combination of methods of leak
detection in use, and certifies to the Department that all applicable release detection requirements
are being met for all petroleum underground storage tanks located at the facility;
(4) If applicable, complies with the Stage I vapor control requirements set out in 15A North
Carolina Administrative Code 2D. 0928, effective 1 March 1991, notifies the Department of the
method or combination of methods of vapor control in use, and certifies to the Department that
all Stage I vapor control requirements are being met for all petroleum underground storage tanks
located at the facility; and
(5) Has substantially complied with the air quality, groundwater quality, and underground
storage tank standards applicable to any activity in which the applicant has previously engaged
and has been in substantial compliance with federal and State laws, regulations, and rules for the
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through the Office of State Budget and Management. Each commercial institution or agency that
administers any part of the loan program shall collect all charges for securing and administering
each loan, including but not limited to application fees, recording costs, collection costs, and
attorneys' fees from the borrower. Receipt of a loan from the Loan Fund is not a right, duty, or
privilege; therefore, Article 3 of Chapter 150B of the General Statutes does not apply to the grant
or denial of a loan from the Loan Fund.
(d) Funds received in repayment of loans made from the Loan Fund shall be deposited into the
Loan Fund until the proceeds of all approved loans are disbursed to the borrowers. Thereafter,
funds received in repayment of loans made from the Loan Fund and any other funds remaining in
the Loan Fund shall be deposited in the Commercial Fund.
(e). In the event of a default on a loan from the Loan Fund or a violation of a loan agreement,
the Secretary may request the Attorney General to bring a civil action for collection of the amount
owed or other appropriate relief. An action shall be filed in the superior court of the county where
the loan recipient resides, where the loan recipient does business, or where the tanks replaced or
upgraded by the loan are located. In an action, the Attorney General may recover all costs of
litigation, including attorneys' fees.
(f) If the State incurs liability in extending credit from the Loan Fund and, as a result of the
liability, the State is ordered to pay or, as part of a settlement agreement, agrees to pay damages
or other costs, the State shall seek reimbursement for the amount of the damages or other costs
from the following sources in the order listed:
(1) Any funds to which the State is entitled under any federal program providing for the
cleanup of petroleum discharges or releases from underground storage tanks, including but not
limited to the Leaking Underground Storage Tank Trust Fund established pursuant to 26 U.S.C. §
4081 and 42 U.S.C. § 6991b(h).
(2) The Noncommercial Fund.
(3) The Commercial Fund.
(1991, c. 538, s. 13: 1993, c. 400, s. 15; c. 402, s. 7.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
§§ 143-215.94Q through 143-215.94S: Reserved for future codification purposes.
PART 2B.
UNDERGROUND STORAGE TANK REGULATION.
§ 143-215.94T. Adoption and implementation of regulatory program.
The Commission shall adopt, and the Department shall implement and enforce, rules relating to
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majority of its members shall constitute a quorum for the transaction of business.
(g) The Council shall:
(1) Review the administration of the Commercial Fund, the Noncommercial Fund, and the
Loan Fund.
(2) Advise the Secretary and the Commission on any matter relating to the effective and
efficient implementation of this Part.
(3) Advise the Secretary on the adequacy of the funds to carry out the purposes of this Part.
(4) Recommend rules, in accordance with generally accepted standards prevailing among
commercial lending institutions, for use by the Department in determining eligibility for loans,
interest rates, terms, and conditions applicable to loans, and in managing the Loan Fund.
(5) Recommend rules and comment on proposed rules governing reimbursement of necessary
and reasonable costs under G.S. 143-215.94E(e).
(1991, c: 538, s. 12; 1991 (Reg. Sessl, 1992), c. 817, s. 3; 1993, c. 400, s. 15.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
Session Laws 1991 (Reg. Sess., 1992), c. 817, which amended this section, in s. 4 provides:
"Initial appointments to the North Carolina Petroleum Underground Storage Tank Funds Council
to fill positions that are added by this act shall be for one-year terms expiring 30 June 1993."
§ 143-215.94P. Groundwater Protection Loan Fund.
(a) There is established under the control and direction of the Department the Groundwater
Protection Loan Fund. This Loan Fund shall be a nonreverting revolving fund consisting of any
monies appropriated to it by the General Assembly or available to it from grants, and other
monies paid to it or recovered on behalf of the Loan Fund. The Loan Fund shall be credited with
interest on the Loan Fund by the State Treasurer pursuant to G.S. 147-69.2 and G.S. 147-69.3.
(b) The Loan Fund shall be used to provide loans to the owners of commercial petroleum
underground storage tanks who are creditworthy but may be unable to secure conventional loans
to upgrade or replace commercial underground storage tanks in use on 1 July 1991 so as to meet
the performance standards applicable to tanks installed after 22 December 1988 or the
requirements that existing underground storage tanks must meet by 22 December 1998. All
applications for loans under this section must be received by the Department prior to 1 January
1995.
(c) The Department shall adopt rules for use in managing the Loan Fund. Rules for managing
the Loan Fund shall be based on generally accepted standards prevailing among commercial
lending institutions with such modifications as may be necessary to achieve the purpose of this
section to make loans available to creditworthy applicants. The Department shall administer the
loan program through existing commercial lending institutions. In the event that the Department is
unable to arrange for the administration of the loan program through existing commercial
institutions in all or any part of the State, the Department may administer the loan program
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(a) The North Carolina Petroleum Underground Storage Tank Funds Council is created. The
Council shall be composed of 11 members as follows:
(1) An employee of the Department who is not employed by the section of the Division of
Environmental Management responsible for the administration of the underground storage tank
cleanup program who shall be appointed by the Secretary and who shall serve at the pleasure of
the Secretary.
(2) Five members appointed by the General Assembly upon the recommendation of the
President Pro Tempore of the Senate as follows:
a. One who shall, at the time of appointment, be actively connected with a petroleum
refining company or an organization representing petroleum refining companies.
b. One who shall, at the time of appointment, be actively connected with a petroleum
marketer or an organization representing petroleum marketers.
c. One who shall, at the time of appointment, be actively connected with an environmental
insurance carrier or an organization representing environmental insurance carriers.
d. One who shall, at the time of appointment, be actively connected with a commercial
lending institution or an organization representing commercial lending institutions.
e. One who shall, at the time of appointment, be actively engaged in farming and the owner
of a noncommercial petroleum underground storage tank or actively connected with an
organization representing farmers.
(3) Five members appointed by the General Assembly upon the recommendation of the
Speaker of the House of Representatives as follows:
a. One who shall, at the time of appointment, be an owner or operator of a convenience
store that markets petroleum products or is actively connected with an organization representing
convenience store owners or operators.
b. One who shall, at the time of appointment, be a motor fuel service station dealer or
actively connected with an organization representing motor fuel service station dealers.
c. One who shall, at the time of appointment, be actively connected with an environmental
advocacy organization.
d. One who shall, at the time of appointment, have special training and experience in the
remediation of groundwater contamination resulting from leaking petroleum underground storage
tanks.
e. One who shall, at the time of appointment, be the owner of a noncommercial petroleum
underground storage tank and not eligible for appointment under subdivisions (1), (2)a. through
(2)d., or (3)a. through (3)d. of this subsection.
(b) The members of the Council shall elect a chairman and a vice-chairman.
(c) All appointments made by the General Assembly shall be for a term of two years. Terms
shall expire on 30 June except that members shall serve until their successors are appointed and
duly qualified as provided in G.S. 128-7. The General Assembly shall have the power to remove,
in accordance with G.S. 143B-13, any member appointed by the General Assembly.
(d) The Secretary shall provide staff assistance to the Council from the agency responsible for
administration of the underground storage tank cleanup program.
(e) Members of the Council who are not State employees shall be reimbursed for their
expenses in accordance with G.S. 138-5. Members of the Council who are State employees shall
be reimbursed for their expenses in accordance with G.S. 138-6.
(f) The Council shall meet upon the call of the Chairman or a majority of its members. A
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purposes of this Part together with any recommendations as to measures that may be necessary to
assure the continued solvency of the Commercial Fund and the Noncommercial Fund; and
(7) A statement of the condition of the Loan Fund and a summary of all activity under the
Loan Fund.
(b) The semiannual reports required by this section shall be made by the Secretary on 1 March
and 1 September of each year beginning 1 March 1992.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 12; 1991, c. 538, s. 11; 1993, c. 400, s.
15; c. 402, s. 6.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.941 through G.S. 143-215.94P would expire December 31,
1998.
§ 143-215.94N. Applicability.
(a) The provisions of this Part as they relate to costs paid from the Commercial Fund apply
only to discharges or releases that are discovered or reported on or after 30 June 1988 from a
commercial underground storage tank.
(b) The provisions of this Part as they relate to costs paid from the Noncommercial Fund apply
to discharges or releases without regard to the date discovered or reported; however,
reimbursement of costs under G.S. 143-215.94G(d)(l), (2), (3), (3a), and (4) shall be for the full
amount of the costs paid for from the Noncommercial Fund and shall not be limited pursuant to
G.S. 143-215.94E(b) for discharges or releases from commercial underground storage tanks
discovered or reported on or before 30 June 1988.
(1989, c. 652, s. 13; 1993, c. 400, s. 15; 1995, c. 377, s. 11.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
Session Laws 1995, c. 377, s. 17, provides that the amendments by Session Laws 1995, c. 377,
s. 11, to this section are applicable to any pending claim for reimbursement, and retroactively to
any discharge or release that was discovered or reported on or after June 30, 1988.
Effect of Amendments. - The 1995 amendment, effective July 5, 1995, added "from a
commercial underground storage tank" in subsection (a); in subsection (b) substituted
"reimbursement of costs undeT" for "costs sought pursuant to", and inserted "(3a)"; and made
stylistic changes. For the effective date of these amendments, see Editor's note.
§ 143-215.940. Petroleum Underground Storage Tank Funds Council.
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1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
Effect of Amendments. - The 1995 amendment, effective January 1, 1996, and applicable to
offenses occurring or continuing on or after that date, substituted "Enforcement" for "Penalties"
in the catchline of this section, and rewrote the text of this section.
§ 143-215.94L. Adoption of rules; administrative procedure; short title; miscellaneous provisions.
(a) The Commission may adopt rules necessary to implement the provisions of this Part.
Except as may be otherwise specifically provided, the provisions of Chapter 150B of the General
Statutes apply to this Part.
(b) This Part shall be administered by the Department consistent with the provisions of Title
VI, § 601 of the Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 42
U.S.C. § 6991 et seq., as amended.
(c) The provisions of this Part and of Part 2 of this Article are intended to be complementary.
This Part shall not be construed to limit the liability under G.S. 143-215.84(a) of any person or to
limit the authority of the Department to take any action pursuant to G.S. 143-215.84(b).
(d) This Part shall be known and may be cited as the Leaking Petroleum Underground Storage
Tank Cleanup Act of 1988.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1991, c. 538, s. 10; 1993, c. 400, s. 15.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
§ 143-215.94M. Reports.
(a) The Secretary shall present a semiannual report to the Environmental Review Commission
which shall include at least the following:
(1) A list of all discharges or releases of petroleum from underground storage tanks;
(2) A list of all cleanups requiring State funding through the Noncommercial Fund and a
comprehensive budget to complete such cleanups;
(3) A list of all cleanups undertaken by tank owners or operators and the status of these
cleanups;
(4) A statement of receipts and disbursements for both the Commercial Fund and the
Noncommercial Fund;
(5) A statement of all claims against both the Commercial Fund and the Noncommercial Fund,
including claims paid, claims denied, pending claims, anticipated claims, and any other obligations;
(6) The adequacy of both the Commercial Fund and the Noncommercial Fund to carry out the
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Session Laws 1989, c. 452, which also enacted an Article 46 of Chapter 58, containing similar
provisions of those contained in the repealed sections of Article 17 A. Article 46 of Chapter 58 has
been recodified as Article 30 of Chapter 58.
Session Laws 1995, c. 193, s. 67 contains a severability clause.
Effect of Amendments. - The 1995 amendment, effective June 7, 1995, in subsection (g)
substituted "G.S. 58-2-131, 58-2-132, 58-2-133" for "G.S. 58-2-130" and made a stylistic
change.
§ 143-215.94J. Limitation of liability of the State of North Carolina.
(a) No claim filed against either the Commercial Fund or the Noncommercial Fund shall be
paid except from assets of the respective fund as provided for in this Part or as may otherwise be
authorized by law.
(b) This Part shall not be construed to obligate the General Assembly to make any
appropriation to implement the provisions of this Part; nor shall it be construed to obligate the
Secretary to take any action pursuant to this Part for which funds are not available from
appropriations or otherwise.
(c) The Secretary may budget anticipated receipts as needed to implement this Part.
(d) Should the Secretary find that the Noncommercial Fund balance is insufficient to satisfy all
claims and other obligations of the Noncommercial Fund incurred pursuant to this Part, the
Secretary may transfer funds which would otherwise revert to the General Fund to the
Noncommercial Fund in order to meet such claims and obligations.
(e) If at any time either fund balance is insufficient to pay all valid claims against it, the claims
shall be paid in full in the order in which they are finally determined. The Secretary may retain not
more than five hundred thousand dollars ($500,000) in the Noncommercial Fund as a contingency
reserve and not apply the reserve to the claims. The Department may use the contingency reserve
to conduct cleanups in accordance with G.S. 143-215.94G when an imminent hazard poses a
threat to human health or to significant natural resources.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1991, c. 538, s. 9; 1993, c. 400, s. 15.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
1988), c. 1035, s. 5. As amended by Session Laws 1989, c. 652, s. 16, and by Session Laws 1991,
c. 538, s. 21, that section had provided that G.S. 143-215.94B through G.S. 143-215.94E, G.S.
143-215.94G, and G.S. 143-215.94J through G.S. 143-215.94P would expire December 31,
1998.
§ 143-215.94K. Enforcement.
The provisions of G.S. 143-215.94W through G.S. 143-215.94Y shall apply to this Part.
U987 (Reg. Sess., 1988), c. 1035, s. 1; 1993, c. 400, s. 15; 1995, c. 377, s. 10.)
Editor's Note. - Session Laws 1993, c. 400, s. 15 repealed Session Laws 1987 (Reg. Sess.,
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-h> UK,
>
143-215.85. Required notice. --
Every person owning or having control over oil or other
substances discharged in any circumstances other than pursuant to
a rule adopted by the Commission, a regulation of the U.S.
Environmental Protection Agency, or a permit required by G.S.
143-215.1 or the Federal Water Pollution Control Act, upon
notice that such discharge has occurred, shall immediately notify
the Department, or any of its agents or employees, of the nature,
location and time of the discharge and of the measures which are
being taken or are proposed to be taken to contain and remove the
discharge. The agent or employee of the Department receiving the
notification shall immediately notify the Secretary or such
member or members of the permanent staff of the Department as the
Secretary may designate. If the discharged substance of which the
Department is notified is a pesticide regulated by the North
Carolina Pesticide Board, the Department shall immediately inform
the Chairman of the Pesticide Board. Removal operations under
this Article of substances identified as pesticides defined in
G.S. 143-460 shall be coordinated in accordance with the
Pesticide Emergency Plan adopted by the North Carolina Pesticide
Board; provided that, in instances where entry of such hazardous
substances into waters of the State is imminent, the Department
may take such actions as are necessary to physically contain or
divert such substance so as to prevent entry into the surface
waters.
Copyright 1996 The Bureau of National Affairs, Inc.
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GENERAL ASSEMBLY OF NORTH CAROLINA
1995 SESSION
RATIFIED BILL
CHAPTER 377
SENATE BILL 1012
AN ACT TO IMPROVE THE REGULATION OF PETROLEUM
UNDERGROUND STORAGE TANKS AND THE CLEANUP OF LEAKING
PETROLEUM UNDERGROUND STORAGE TANKS.
The General Assembly of North Carolina enacts:
Section 1. Part 2B of Article 21A of Chapter 143 of the General Statutes
is amended by adding a new section to read:
"§ 143-215.94V. Standards for petroleum underground storage tank cleanup.
(a) Legislative findings and intent.
m The General Assembly finds that:
a. The goals of the underground storage tank program are to
protect human health and the environment. Maintaining the
solvency of the Commercial Fund and the Noncommercial
Fund is essential to these goals.
b. The sites at which discharges or releases from underground
storage tanks occur vary greatly in terms of complexity, soil
types, hydrogeologv. other physical and chemical
characteristics, current and potential future uses of
groundwater, and the degree of risk that each site may pose
to human health and the environment.
Risk-based corrective action is a process that recognizes this
diversity and utilizes an approach where assessment and
remediation activities are specifically tailored to the
conditions and risks of a specific site.
cL Risk-based corrective action gives the State flexibility in
requiring different levels of cleanup based on scientific
analysis of different site characteristics, and allowing no
action or no further action at sites that pose little risk to
human health or the environment.
e. A risk-based approach to the cleanup of environmental
damage can adequately protect human health and the
environment while preventing excessive or unproductive
cleanup efforts, thereby assuring that limited resources are
directed toward those sites that pose the greatest risk to
human health and the environment.
(2) The General Assembly intends:
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protect current and potential future uses of groundwater
with risk-based analysis to determine the appropriate
cleanup levels and actions.
bi That these rules apply to all discharges or releases that are
reported on or after the date the rules become effective in
order to ascertain whether cleanup is necessary, and if so.
the appropriate level of cleanup.
c. That these rules mav be applied to anv discharge or release
that has been reported at the time the rules become effective
at the discretion of the Commission.
<1 That these rules and decisions of the Commission and the
Department in implementing these rules facilitate the
completion of more cleanups in a shorter period of time.
e. That neither the Commercial Fund nor the Noncommercial
Fund be used to clean up sites where the Commission has
determined that a discharge or release poses a degree of risk
to human health or the environment that is no greater than
the acceptable level of risk established bv the Commission.
f That until rules implementing a risk-based approach to
assessment and cleanup are adopted, the Commission
implement the foregoing principles to the maximum extent
possible under existing rules.
fbl The Commission shall adopt rules to establish a risk-based approach for the
assessment, prioritization, and cleanup of discharges and releases from petroleum
underground storage tanks. The rules shall address, at a minimum, the circumstances
where site-specific information should be considered, criteria for determining
acceptable cleanup levels, and the acceptable level or range of levels of risk to human
health and the environment.
(c) The Commission mav require an owner or operator or a landowner eligible
for reimbursement under G.S. 143-215.94Efbl^ to determine the degree of risk to
human health and the environment that is posed bv a discharge or release from a
petroleum underground storage tank.
(d') If the Commission concludes that a discharge or release poses a degree of risk
to human health or the environment that is no greater than the acceptable level of
risk established bv the Commission, the Commission shall notify the owner, operator,
or landowner who makes the determination required by subsection (c> of this section
that no cleanup, further cleanup, or further action will be required unless the
Commission later determines that the discharge or release poses an unacceptable
level of risk or a potentially unacceptable level of risk to human health or the
environment.
(e) If the Commission concludes under subsection (d\ of this section that no
cleanup, no further cleanup, or no further action will be required, the Department
shall not pay or reimburse anv costs otherwise payable or reimbursable under this
Article from either the Commercial or Noncommercial Fund, other than reasonable
and necessary to conduct the risk assessment required bv this section, unless:
(1) Cleanup is ordered or damages are awarded in a finally
adjudicated judgment in an action against the owner or landowner.
£2} Cleanup is required or damages are agreed to in a consent.
judgment approved bv the Department prior to its entry by the
court.
(3) Cleanup is required or damages are agreed to in a settlement
agreement approved bv the Department prior to its execution bv
the parties.
Page 2
Senate Bill 1012
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(4} The payment or reimbursement is for costs that were incurred
prior to or as a result of notification of a determination bv the
Commission that no cleanup, no further cleanup, or no action is
required.
(5^ The payment or reimbursement is for costs that were incurred as a
result of a later determination bv the Commission that the
discharge or release poses a threat or potential threat to human
health or the environment as provided in subsection fdl of this
section.
ffl This section shall not be construed to limit the authority of the Commission to
require investigation, initial response, and abatement of a discharge or release
pending a determination bv the Commission under subsection fd') of this section as to
whether cleanup, further cleanup, or further action will be required.
(g^ Subsections (c) through (e) of this section apply only to assessments and
cleanups in progress or begun on or after the date on which the rules adopted bv the
Commission pursuant to subsection (b^ of this section become effective."
Sec. 2. Part 2B of Article 21A of Chapter 143 of the General Statutes is
amended by adding a new section to read:
"§ 143-215.94U. Registration of petroleum commercial underground storage tanks:
operation of petroleum underground storage tanks: operating permit required.
(a) The owner or operator of each petroleum commercial underground storage
tank shall annually obtain an operating permit from the Department for the facility at
which the tank is located. The Department shall issue an operating permit only if the
owner or operator:
0} Has notified the Department of the existence of all tanks as
required bv 40 Code of Federal Regulations § 280.22 (1 July 1994
Edition") or 42 U.S.C. § 6991a. if applicable, at the facility:
(2) Has paid all fees required under G.S. 143-215.94C for all
commercial petroleum underground storage tanks located at the
facility:
£3} Complies with applicable release detection requirements set out in
rules adopted pursuant to this Chapter, notifies the Department of
the method or combination of methods of leak detection in use,
and certifies to the Department that all applicable release detection
requirements are being met for all petroleum underground storage
tanks located at the facility:
£4^ If applicable, complies with the Stage I vapor control requirements
set out in 15A North Carolina Administrative Code 2D.0928.
effective 1 March 1991. notifies the Department of the method or
combination of methods of vapor control in use, and certifies to
the Department that all Stage I vapoir control requirements are
being met for all petroleum underground storage tanks located at
the facility: and
(SX Has substantially complied with the air quality, groundwater
quality, and underground storage tank standards applicable to anv
activity in which the applicant has previously engaged and has
been in substantial compliance with federal and State laws,
regulations, and rules for the protection of the environment. In
determining substantial compliance, the compliance history of the
owner or operator and anv parent, subsidiary, or other affiliate of
the owner, operator, or parent mav be considered.
(V) The operating permit shall be issued at the time the commercial underground
storage annual tank operating fee required under G.S. 143-215.94QV) is paid and
Senate Bill 1012
Page 3
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shall be valid from the first day of the month in which the fee is due through the, last
dav of the last month for which the fee is paid in accordance with the schedule
established bv the Department under G.S. 143-215.94C(b\
(c') No person shall place a petroleum product, and no owner or operator shall
cause a petroleum product to be placed, into an underground storage tank at a
facility for which the owner or operator does not hold a currently valid operating
permit.
fd) The Department shall issue an operating permit certificate for each facility
that meets the requirements of subsection fa) of this section. The operating permit
certificate shall identify the number of tanks at the facility and shall conspicuously
display the date on which the permit expires. Except for the owner or operator, no
person shall be liable under subsection (c) of this section if an unexpired operating
permit certificate is displayed at the facility, unless the person knows or has reason to
know that the owner or operator does not hold a currently valid operating permit for
the facility.
(e) The Department mav revoke an operating permit only if the owner or
operator fails to continuously meet the requirements set out in subdivisions fl)
through (4) of subsection (a) of this section. If the Department revokes an operating
permit, the owner or operator of the facility for which the operating permit was
issued shall immediately surrender the operating permit certificate to the Department,
unless the revocation is staved pursuant to G.S. 150B-33. An owner or operator mav
challenge a decision bv the Department to deny or revoke an operating permit bv
filing a contested case under Article 3 of Chapter 150B of the General Statutes. The
Secretary shall make the final agency decision regarding the revocation of a permit
under this section."
Sec. 3. Part 2B of Article 21A of Chapter 143 of the General Statutes is
amended by adding three new sections to read:
"§ 143-215.94W. Enforcement procedures: civil penalties.
(a") A civil penalty of not more than ten thousand dollars ('$10.000) mav be
assessed bv the Secretary against anv person who:
(1) Violates anv provision of this Part or rule adopted pursuant to this
Part,
(2) Fails to apply for or to secure a permit required bv this Part.
?3) Violates or fails to act in accordance with the terms, conditions, or
requirements of anv permit issued pursuant to this Part.
£4} Fails to file, submit, or make available, as the case mav be. anv
documents, data, or reports required bv this Part.
(5) Violates or fails to act in accordance with the terms, conditions, or
requirements of anv special order or other appropriate document
issued pursuant to G.S. 143-215.2.
(6) Falsifies or tampers with anv recording or monitoring device or
method required to be operated or maintained under this Part or
rules implementing this Part.
(1) Knowingly renders inaccurate anv recording or monitoring device
or method required to be operated or maintained under this Part
or rules implementing this Part.
(8) Knowingly makes anv false statement, representation, or
certification in anv application, record, report, plan, or other
document filed or required to be maintained under this Part or a
rule implementing this Part.
(9) Knowingly makes a false statement of a material fact in a
rule-making proceeding or contested case under this Part.
Page 4
Senate Bill 1012
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CIO) Refuses access to the Commission or its duly designated
representative to anv premises for the purpose of conducting a
lawful inspection provided for in this Part.
(b) If anv action or failure to act for which a penalty mav be assessed under this
section is continuous, the Secretary mav assess a penalty not to exceed ten thousand
dollars ($10.000) per dav for so long as the violation continues. A penalty for a
continuous violation shall not exceed two hundred thousand dollars ($200.000) for
each period of 30 davs during which the violation continues.
(c) In determining the amount of the penalty, the Secretary shall consider the
factors set out in G.S. 143B-282.1(b). The procedures set out in G.S. 143B-282.1 shall
apply to civil penalty assessments that are presented to the Commission for final
agency decision.
(d) The Secretary shall notify anv person assessed a civil penalty of the assessment
and the specific reasons therefor bv registered or certified mail, or bv anv means
authorized bv G.S. 1A-1. Rule 4. Contested case petitions shall be filed pursuant to
G.S. 150B-23 within 30 davs of receipt of the notice of assessment. The Secretary
shall make the final decision regarding assessment of a civil penalty under this
section.
(e) Requests for remission of civil penalties shall be filed with the Secretary.
Remission requests shall not be considered unless made within 30 davs of receipt of
the notice of assessment. Remission requests must be accompanied bv a waiver of the
right to a contested case hearing pursuant to Chapter 150B and a stipulation of the
facts on which the assessment was based. Consistent with the limitations in G.S.
143B-282.1(c) and (d). remission requests mav be resolved bv the Secretary and the
violator. If the Secretary and the violator are unable to resolve the request, the
Secretary shall deliver remission requests and his recommended action to the
Committee on Civil Penalty Remissions of the Environmental Management
Commission appointed pursuant to G.S. 143B-282.1(c).
(fl If anv civil penalty has not been paid within 30 davs after notice of assessment
has been served on the violator, the Secretary shall request the Attorney General to
institute a civil action in the superior court of anv county in which the violator
resides or has his or its principal place of business to recover the amount of the
assessment, unless the violator contests the assessment as provided in subsection (d)
of this section, or requests remission of the assessment in whole or in part as provided
in subsection (e) of this section. If anv civil penalty has not been paid within 30 davs
after the final agency decision or court order has been served on the violator, the
Secretary shall request the Attorney General to institute a civil action in the superior
court of anv county in which the violator resides or has his or its principal place of
business to recover the amount of the assessment. Such civil actions must be filed
within three years of the date the final agency decision or court order was served on
the violator.
(g) The Secretary mav delegate his powers and duties under this section to the
Director of the Division of Environmental Management of the Department.
"§ 143-215.94X. Enforcement procedures: criminal penalties.
(a) Anv person who negligently commits anv of the offenses set out in
subdivisions (1^ through (9) of G.S. 143-215.94W(a^ shall be guilty of a Class~2
misdemeanor which mav include a fine not to exceed fifteen thousand dollars
($15.000) per day of violation, provided that such fine shall not exceed a cumulative
total of two hundred thousand dollars ($200.000) for each period of 30 davs during
which a violation continues.
(b) Anv person who knowingly and willfully commits anv of the offenses set out
in subdivisions (1) through (5) of G.S. 143-215.94W(a) shall be guilty of a Class I
felony, which mav include a fine not to exceed one hundred thousand dollars
Senate Bill 1012
Page 5
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($ 100.000) per dav of violation, provided that this fine shall not exceed a cumulative
total of five hundred thousand dollars ($500.000) for each period of 30 davs during
which a violation continues. For the purposes of this subsection, the phrase
'knowingly and willfully' shall mean intentionally and consciously as the courts of
this State, according to the principles of common law interpret the phrase in the light
of reason and experience.
(c) (1) Anv person who knowingly commits any of the offenses set out in
subdivisions (11 through (5) of G.S. 143-215.94W( a) and who
knows at that time that he thereby places another person in
imminent danger of death or serious bodily injury shall be guilty of
a Class C felonv. which mav include a fine not to exceed two
hundred fifty thousand dollars (£250.000) per dav of violation-
provided that this fine shall not exceed a cumulative total of one
million dollars ($1.000.000) for each period of 30 davs during
which a violation continues.
(2) For the purposes of this subsection, a person's state of mind is
knowing with respect to:
jL His conduct, if he is aware of the nature of his conduct:
bi An existing circumstance, if he is aware or believes that the
circumstance exists: or
c. A result of his conduct, if he is aware or believes that his
conduct is substantially certain to cause danger of death or
serious bodily injury.
(3) Under this subsection, in determining whether a defendant who is
a natural person knew that his conduct placed another person in
imminent danger of death or serious bodily injury.
a. The person is responsible only for actual awareness or actual
belief that he possessed: and
bi Knowledge possessed bv a person other than the defendant
but not bv the defendant himself mav not be attributed to
the defendant.
(4) It is an affirmative defense to a prosecution under this subsection
that the conduct charged was conduct consented to bv the person
endangered and that the danger and conduct charged were
reasonably foreseeable hazards of an occupation, a business, or a
profession: or of medical treatment or medical or scientific
experimentation conducted bv professionally approved methods
and such other person had been made aware of the risks involved
prior to giving consent. The defendant mav establish an
affirmative defense under this subdivision bv a preponderance of
the evidence.
(d) No proceeding shall be brought or continued under this section for or on
account of a violation bv anv person who has previously been convicted of a federal
violation based upon the same set of facts.
(e) In proving the defendant's possession of actual knowledge, circumstantial
evidence mav be used, including evidence that the defendant took affirmative steps to
shield himself from relevant information. Consistent with the principles of common
law, the subjective mental state of defendants mav be inferred from their conduct.
(f) For the purposes of the felonv provisions of this section, a person's state of
mind shall not be found 'knowingly and willfully' or 'knowingly' if the conduct that
is the subject of the prosecution is the result of anv of the following occurrences or
circumstances:
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Senate Bill 1012
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0} A natural disaster or other act of God which could not have been
prevented or avoided bv the exercise of due care or foresight.
(2) An act of third parties other than agents, employees, contractors,
or subcontractors of the defendant.
(3) An act done in reliance on the written advice or emergency on-site
direction of an employee of the Department. In emergencies, oral
advice mav be relied upon if written confirmation is delivered to
the employee as soon as practicable after receiving and reiving on
the advice.
(4^ An act causing no significant harm to the environment or risk to
the public health, safety, or welfare and done in compliance with
other conflicting environmental requirements or other constraints
imposed in writing bv environmental agencies or officials after
written notice is delivered to all relevant agencies that the conflict
exists and will cause a violation of the identified standard.
(5^ Violations causing no significant harm to the environment or risk
to the public health, safety, or welfare for which no enforcement
action or civil penalty could have been imposed under any written
civil enforcement guidelines in use by the Department at the time.
This subdivision shall not be construed to require the Department
to develop or use written civil enforcement guidelines.
(6^ Occasional, inadvertent, short-term violations causing no significant
harm to the environment or risk to the public health, safety, or
welfare. If the violation occurs within 30 davs of a prior violation
or lasts for more than 24 hours, it is not an occasional, short-term
violation.
All general defenses, affirmative defenses, and bars to prosecution that mav
apply with respect to other criminal offenses under State criminal offenses mav apply
to prosecutions brought under this section or other criminal statutes that refer to this
section and shall be determined bv the courts of this State according to the principles
of common law as thev mav be applied in the light of reason and experience.
Concepts of justification and excuse applicable under this section mav be developed
in the light of reason and experience.
"§ 143-215.94Y. Enforcement procedures: injunctive relief.
Whenever the Department has reasonable cause to believe that any person has
violated or is threatening to violate anv of the provisions of this Part, any of the terms
of any permit issued pursuant to this Part, or a rule implementing this Part, the
Department mav. either before or after the institution of anv other action or
proceeding authorized bv this Part, request the Attorney General to institute a civil
action in the name of the State upon the relation of the Department for injunctive
relief to restrain the violation or threatened violation and for such other and further
relief in the premises as the court shall deem proper. The Attorney General mav
institute such action in the superior court of the county in which the violation
occurred or mav occur or. in his discretion, in the superior court of the county in
which the person responsible for the violation or threatened violation resides or has
his or its principal place of business. Upon a determination bv the court that the
alleged violation of the provisions of this Part or the regulations of the Commission
has occurred or is threatened, the court shall grant the relief necessary to prevent or
abate the violation or threatened violation. Neither the institution of the action nor
anv of the proceedings thereon shall relieve anv party to such proceedings from anv
penalty prescribed for violation of this Part."
Sec. 4. G.S. 143-215.94A reads as rewritten:
"§ 143-215.94A. Definitions.
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Unless a different meaning is required by the context, the following definitions
shall apply throughout this Part; Part and Part 2B of this Article:
(0) 'Affiliate* has the same meaning as in 17 Code of Federal
Regulations § 24QA2(b)-2 Y1 April 1994 Edition"). which defines
'affiliate' as a person that directly, or indirectly through one or
more intermediaries, controls, is controlled bv. or is under
common control of another person.
(1) 'Commercial Fund' means the Commercial Leaking Petroleum
Underground Storage Tank Cleanup Fund established pursuant to
this Part.
(2) 'Commercial underground storage tank' means any one or
combination of tanks (including underground pipes connected
thereto) used to contain an accumulation of petroleum products,
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. The term 'commercial underground storage
tank' does not include any:
a. Farm or residential underground storage tank of 1,100
gallons or less capacity used for storing motor fuel for
noncommercial puiposes;
b. Underground storage tank of 1,100 gallons or less capacity
used for storing heating oil for consumptive use on the
premises where stored;
c. Underground storage tank of more than 1,100 gallon
capacity used for storing heating oil for consumptive use on
the premises where stored by four or fewer households;
d. Septic tank;
e. Pipeline facility (including gathering lines) regulated under:
1. The Natural Gas Pipeline Safety Act of 1968 (49
U.S.C. § 1671 et seq.);
2. The Hazardous Liquid Pipeline Safety Act of 1979
(49 U.S.C. § 2001 et seq.); or
3. Any 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;
f. Surface impoundment, pit, pond, or lagoon;
g. Storm water or waste water collection system;
h. Flow-through process tank;
i. Liquid trap or associated gathering lines directly related to
oil or gas production and gathering operations; or
j. 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.
(3) 'Council' means the North Carolina Petroleum Underground
Storage Tank Funds Council.
C3a^ 'Facility' means an underground storage tank, or two or more
underground storage tanks located in close proximity to each other
and having the same owner or operator, that are located on a
single tract of land or on contiguous tracts of land that are owned
or controlled bv the same person. As used in this subdivision, the
terms 'owner', 'operator', and 'person' include anv affiliate.
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parent, and subsidiary of the owner, operator, or person.
respectively. The owner or person having control of the land on
which an underground storage tank is located, or on which two or
more underground storage tanks are located, need not be the
owner or operator of the underground storage tank or
underground storage tanks. The term 'facility', as defined in this
subdivision, does not apply to a 'pipeline facility*, as that phrase is
used in subdivisions (21 and (7) of this section.
(4) 'Heating oil' means petroleum that is No. 1, No. 2, No. 4-light, No.
4-heavy, No. 5-light, No. 5-heavy, or 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 for the purpose of heating.
(5} 'Loan Fund' means the Groundwater Protection Loan Fund.
(6) 'Noncommercial Fund' means the Noncommercial Leaking
Petroleum Underground Storage Tank Cleanup Fund established
pursuant to this Part.
(7) 'Noncommercial underground storage tank' means any one or
combination of tanks (including underground pipes connected
thereto) used to contain an accumulation of petroleum products,
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. The term 'noncommercial storage tank'
does not include any:
a. Commercial underground storage tanks;
b. Septic tank;
c. Pipeline facility (including gathering lines) regulated under:
1. The Natural Gas Pipeline Safety Act of 1968 (49
U.S.C. § 1671 et seq.);
2. The Hazardous Liquid Pipeline Safety Act of 1979
(49 U.S.C. § 2001 et seq.); or
3. Any 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;
d. Surface impoundment, pit, pond, or lagoon;
e. Storm water or waste water collection system;
f. Flow-through process tank;
g. Liquid trap or associated gathering lines directly related to
oil or gas production and gathering operations; or
h. 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.
8) 'Operator' means any person in control of, or having responsibility
for, the operation of an underground storage tank.
(9) 'Owner' means:
a. In the case of an underground storage tank in use on 8
November 1984, or brought into use after that date, any
person who owns an underground storage tank used for the
storage, use, or dispensing of petroleum products; and
b. In the case of an underground storage tank in use before 8
November 1984, but no longer in use on or after that date,
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any person who owned such tank immediately before the
discontinuation of its use.
(9a) 'Parent' has the same meaning as in 17 Code of Federal
Regulations § 240.12(b)-2 (1 April 1994 Edition! which defines
'parent' as an affiliate that directly, or indirectly through one or
more intermediaries, controls another person.
(10) 'Petroleum' or 'petroleum product' means crude oil or any
fraction thereof which is a liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7 pounds
per square inch absolute), including any such liquid which consists
of a blend of petroleum and alcohol and which is intended for use
as a motor fuel. The terms 'petroleum' and 'petroleum product'
do not include any hazardous substance as defined in Section
101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, Pub. L. No. 96-510, 94
Stat. 2767, 42 U.S.C. § 9601(14) as amended; any substance
regulated as a hazardous waste under Subtitle C of Title II of the
Resource Conservation and Recovery Act of 1976, Pub. L. 94-580,
90 Stat. 2806, 42 U.S.C. § 6921 et seq., as amended; or any mixture
of petroleum or a petroleum product containing any such
hazardous substance or hazardous waste in greater than de minimis
quantities.
(11) 'Subsidiary' has the same meaning as in 17 Code of Federal
Regulations § 240.12fbV2 (1 April 1994 Edition), which defines
'subsidiary' as an affiliate that is directly, or indirectly through one
or more intermediaries, controlled bv another person."
Sec. 5. G.S. 143-215.94B reads as rewritten:
"§ 143-215.94B. Commercial Leaking Petroleum Underground Storage Tank Cleanup
Fund.
(a) There is established under the control and direction of the Department the
Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund. This
Commercial Fund shall be a nonreverting revolving fund consisting of any monies
appropriated for such purpose by the General Assembly or available to it from grants,
other monies paid to it or recovered on behalf of the Commercial Fund, and fees
paid pursuant to this Part.
(b) The Commercial Fund shall be used for the payment of the following costs up
to an aggregate maximum of one million dollars ($1,000,000) per occurrence resulting
from a discharge or release of a petroleum product from a commercial underground
storage tank that at the time the discharge or release is discovered or reported is
beneath the surface of the ground or has been removed within the preceding 120
days: tank:
(1) For discharges or releases discovered or reported between 30 June
1988 and 31 December 1991 inclusive, the cleanup of
environmental damage as required by G.S. 143-215.94E(a) in
excess of fifty thousand dollars ($50,000) per occurrence.
(2) For discharges or releases discovered on or after 1 January 1992
and reported between 1 January 1992 and 31 December 1993
inclusive, the cleanup of environmental damage as required by
G.S. 143-215.94E(a) in excess of twenty thousand dollars ($20,000)
per occurrence.
(2a) For discharges or releases discovered and reported on or after 1
January 1994 and prior to 1 January 1995, the cleanup of
environmental damage as required by G.S. 143-215.94E(a) in
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excess of twenty thousand dollars ($20,000) if the owner or
operator (i) notifies the Department prior to 1 January 1994 of its
intent to permanently close the tank in accordance with applicable
regulations or to upgrade the tank to meet the requirements that
existing underground storage tanks must meet by 22 December
1998, (ii) commences closure or upgrade of the tank prior to 1 July
1994, and (iii) completes closure or upgrade of the tank prior to 1
January 1995.
(3) For discharges or releases reported on or after 1 January 1994, the
cleanup of environmental damage as required by G.S.
143-215.94E(a) in excess of twenty thousand dollars ($20,000) if,
prior to the discharge or release, the commercial underground
storage tank from which the discharge or release occurred met the
performance standards applicable to tanks installed after 22
December 1988 or met the requirements that existing underground
storage tanks must meet by 22 December 1998.
(4) For discharges or releases reported on or after 1 January 1994 from
a commercial underground storage tank that does not qualify
under subdivision (2a) of this subsection or does not meet the
standards in subdivision (3) of this subsection, sixty percent (60%)
of the costs per occurrence of the cleanup of environmental
damage as required by G.S. 143-215.94E(a) that exceeds twenty
thousand dollars ($20,000) but is not more than one hundred
fifty-seven thousand five hundred dollars ($157,500) and one
hundred percent (100%) of the costs above this amount, up to the
limits established in this section.
(5) Compensation to third parties for bodily injury and property
damage in excess of one hundred thousand dollars ($100,000) per
occurrence.
(6) Reimbursing the State for damages or other costs incurred as a
result of a loan from the Loan Fund. The per occurrence limit
does not apply to reimbursements to the State under this
subdivision.
(bl) In the case of a discharge or release of a petroleum product from a
commercial underground storage tank that is discovered and reported more than 120
days after the tank has been removed from the ground and prior to 1 July 1994, the
Commercial Fund shall be used for the payment of costs resulting from the discharge
or release in excess of the co9ts for which the owner or operator is responsible under
subsection (b) of this section up to an aggregate of one million dollars ($1,000,000)
per occurrence.—For the purpose of determining the-costs for which the owner or
operator is responsible under subsection (b) of this section, the discharge or release
shall—be—considered—te—have been discovered—asd—reported—©b—the—date—the
underground storage tank was removed from the ground. Costs shall be paid under
this subsection only if the owner establishes that the;
Tank was removed from the ground on or after 22 December 1988;
(37 Discharge wTas not discovered at the time the tank was removed;
U1IU
(3) Tank was removed in compliance with all applicable federal and
State laws, regulations, and rules in force at the time the tank was
removed.
In the event that two or more discharges or releases at anv one facility, the first of
which was discovered or reported on or after 30 June 1988. result in more than one
plume of soil, surface water, or groundwater contamination, the Commercial Fund
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shall be used for the payment of the costs of the cleanup of environmental damage as
required bv G.S. 143-215,94E(a1 in excess of the multiple discharge amount up to the
applicable aggregate maximum specified in subsections (bl and (b21 of this section.
The multiple discharge amount shall be calculated as follows:
(1) Each discharge or release shall be considered separately as if it
were the only discharge or release, and the cost for which the
owner or operator is responsible under subdivisions (11. (21. (2a1.
or (31 of subsection (bl of this section, whichever are applicable,
shall be determined for each discharge or release. For each
discharge or release for which subdivision (41 of subsection (bl of
this section is applicable, the cost for which the owner or operator
is responsible, for the purpose of this subsection, shall be
seventv-five thousand dollars ($75.0001. For purposes of this
subsection, two or more discharges or releases that result in a
single plume of soil, surface water, or groundwater contamination
shall be considered as a single discharge or release.
(21 The multiple discharge amount shall be the lesser of:
a. The sum of all the costs determined as set out in subdivision
(11 of this subsection: or
b. The product of the highest of the costs determined as set out
in subdivision (11 of this subsection multiplied bv one and
one-half (HI.
(b21 In the event that the aggregate costs per occurrence described in subsection
(bl or (bll of this section exceed one million dollars ($1.000.0001. the Commercial
Fund shall be used for the payment of eighty percent (80%1 of the costs in excess of
one million dollars ($1.000.0001 up to a maximum of one million five hundred
thousand dollars ($1.500.0001. The Department shall not pav or reimburse costs
under this subsection unless the owner, operator, or landowner eligible for
reimbursement under G.S. 143-215.94E(bl1 submits proof that the owner, operator,
or landowner eligible for reimbursement under G.S. 143-215.94E(bl1 has paid at least
twenty percent (20%) of the costs for which reimbursement is sought.
(c) The Commercial Fund is to be available on an occurrence basis, without
regard to number of occurrences associated with tanks owned or operated by the
same owner or operator.
(d) The Commercial Fund shall not be used for:
(1) Costs incurred as a result of a discharge or release from an
aboveground tank, aboveground pipe or fitting not connected to an
underground storage tank, or vehicle; vehicle.
(2) The removal or replacement of any tank, pipe, fitting or related
equipment; equipment.
(3) Costs incurred as a result of a discharge or release of petroleum
from a transmission pipeline; pipeline.
(41 Costs intended to be paid by the Noncommercial Fundi or Fund.
(5) Costs associated with the administration of any underground
storage tank program other than the program administered
pursuant to this Part.
(61 Costs paid or reimbursed bv or from any source other than the
Commercial Fund, including but not limited to. anv payment or
reimbursement made under a contract of insurance.
(e) The Commercial Fund shall be treated as a special trust fund and shall be
credited with interest by the State Treasurer pursuant to G.S. 147-69.2 and G.S.
147-69.3."
Sec. 6. G.S. 143-215.94C reads as rewritten:
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"§ 143-215.94C. Commercial leaking petroleum underground storage tank cleanup
fees.
(a) The owner or operator of a commercial petroleum underground storage tank
shall pay to the Secretary for deposit into the Commercial Fund an annual operating
fee according to the following schedule:
(1) For each petroleum commercial underground storage tank of 3,500
gallons or less capacity — one hundred fifty dollars ($150.00).
(2) For each petroleum commercial underground storage tank of more
than 3,500 gallon capacity ~ two hundred twenty-five dollars
($225.00).
(b) The annual operating fee shall be determined on a calendar year basis. For
petroleum commercial underground storage tanks in use on 1 January and remaining
in use on or after 1 December of that year, the annual operating fee due for that year
shall be as specified in subsection (a) of this section. For a petroleum commercial
underground storage tank that is first placed in use in any year, the annual operating
fee due for that year shall be determined by multiplying one-twelfth (1/12) of the
amount specified in subsection (a) of this section by the number of months remaining
in the calendar year. For a petroleum commercial underground storage tank that is
permanently removed from use in any year, the annual operating fee due for that
year shall be determined by multiplying one-twelfth (1/12) of the amount specified in
subsection (a) of this section by the number of months in the calendar year preceding
the permanent removal from use. In calculating the pro rata annual operating fee for
a tank that is first placed in use or permanently removed during a calendar year
under the preceding two sentences, a partial month shall count as a month, except
that Where a tank is permanently removed and replaced by another tank, the total of
the annual operating fee for the tank that is removed and the replacement tank shall
not exceed the annual operating fee for the replacement tank. The annual operating
fee shall be due and payable on the first day of the month in accordance with a
staggered schedule established by the Department. The Department shall implement
a staggered schedule to the end that the total amount of fees to be collected by the
Department is approximately the same each quarter. A person who owns or operates
more than one petroleum commercial underground storage tank may request that the
fee for all tanks be due at the same time. The fee for all commercial underground
storage tanks located at the same facility shall be due at the same time. A person
who owns or operates 12 or more commercial petroleum storage tanks may request
that the total of all fees be paid in four equal payments to be due on the first day of
each calendar quarter, quarter, provided that the fee for all commercial underground
storage tanks located at the same facility shall be due at the same time.
(c) Beginning no later than sixty days before the first due date of the annual
operating fee imposed by this section, any person who deposits a petroleum product
in a commercial underground storage tank that would be subject to the annual
operating fee shall, at least once in each calendar year during which such deposit of a
petroleum product is made, notify the owner or operator of the duty to pay the
annual operating fee. The requirement to notify pursuant to this subsection does not
constitute a duty owed by the person depositing a petroleum product in a commercial
underground storage tank to the owner or operator and the person depositing a
petroleum product in an underground storage tank shall not incur any liability to the
owner or operator for failure to give notice of the duty to pay the operating fee.
(d) Repealed by Session Laws 1991, c. 538, s. 3.1.
(e) An owner or operator of a commercial underground storage tank who fails to
pay n tank an annual operating fee due under this section within 30 days of the date
that the fee is due shall pay, in addition to the fee, a late penalty of five dollars
($5.00) per day per commercial underground storage tank, up to a maximum equal to
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the tank annual operating fee due. The Department may waive a late penalty in
whole or in part if:
0} The late penalty was incurred because of the late payment nr
nonpayment of an annual operating fee bv a previous owner or
operator.
(2) The late penalty was incurred because of a billing error for which
the Department is responsible.
(3) Where the late penalty was incurred because the annual operating
fee was not paid bv the owner or operator due to inadvertence or
accident.
(4) Where payment of the late penalty will prevent the owner or
operator from complying with anv substantive law, rule, or
regulation applicable to underground storage tanks and intended to
prevent or mitigate discharges or releases or to facilitate the earlv
detection of discharges or releases."
Sec. 7. G.S. 143-215.94D(d) reads as rewritten:
"(d) The Noncommercial Fund shall not be used for:
(1) Costs incurred as a result of a discharge or release from an
aboveground tank, aboveground pipe or fitting not connected to an
underground storage tank, or vehicle; vehicle.
(2) The removal or replacement of any tank, pipe, fitting or related
equipment; equipment.
(3) Costs incurred as a result of a discharge or release of petroleum
from a transmission pipeline; pipeline.
, (4} Costs intended to be paid for by the Commercial Fund; or Fund.
(5) Costs associated with the administration of any underground
storage tank program other than the program administered
pursuant to this Part.
(6) Costs paid or reimbursed bv or from anv source other than the
Noncommercial Fund, including, but not limited to. anv payment
or reimbursement made under a contract of insurance."
Sec. 8. G.S. 143-215.94E reads as rewritten:
"§ 143-215.94E. Rights and obligations of the owner and operator.
(a) Upon a determination that a discharge or release of petroleum from an
underground storage tank has occurred, the owner or operator shall notify the
Department pursuant to G.S. 143-215.85. The owner or operator shall immediately
undertake to collect and remove the discharge or release and to restore the area
affected in accordance with the requirements of this Article.
(b) In the case of a discharge or release from a commercial underground storage
tank where the owner or operator has been identified and has proceeded with
cleanup, the owner or operator may elect to have the Commercial Fund pay or
reimburse the owner or operator for any costs described in G.S. 143 215.94B(b)
subsection (b) or (bl^ of G.S. 143-215.94B that exceed the amounts for which the
owner or operator is responsible under that subsection. The sum of payments by the
owner or operator and the payments from the Commercial Fund shall not exceed one
million dollars ($1,000,000) per discharge or rclcosc. release except as provided in
G.S. 143-215.94Bfb2Y
(bl) In the case of a discharge or release from a commercial underground storage
tank where the owner and operator cannot be identified or located, or where the
owner and operator fail to proceed as required by subsection (a) of this section, if the
current landowner of the land in which the commercial underground storage tank is
located notifies the Department in accordance with G.S. 143-215.85 and undertakes
to collect and remove the discharge or release and to restore the area affected in
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accordance with the requirements of this Article and applicable federal and State
laws, regulations, and rules, the current landowner may elect to have the Commercial
Fund pay or reimburse the current landowner for any costs described in subdivisions
(1), (2), (2a), (3), and (4) of G.S. 143-215.94B(b) or G.S. 143-215.94B(bl1 that exceed
the amounts for which the owner or operator is responsible under that subsection.
The current landowner is not eligible for payment or reimbursement until the current
landowner has paid the costs described in subdivisions (1), (2), (2a), (3), and (4) of
G.S. 143-215.94B(b) or G.S. 143-215.94B(bl1 for which the owner or operator is
responsible. Eligibility for reimbursement under this subsection may be transferred
from a current landowner who has paid the costs described in subdivisions (1), (2),
(2a), (3), and (4) of G.S. 143-215.94B(b) or G.S. 143-215.94B(bl1 to a subsequent
landowner. The sum of payments from the Commercial Fund and from all other
sources shall not exceed one million dollars ($1,000,000) per discharge or release.
release except as provided in G.S. 143-215.94B(b21. This subsection shall not be
construed to require a current landowner to cleanup a discharge or release of
petroleum from an underground storage tank for which the current landowner is not
otherwise responsible. This subsection does not alter any right, duty, obligation, or
liability of a current landowner, former landowner, subsequent landowner, owner, or
operator under other provisions of law. This subsection shall not be construed to
limit the authority of the Department to engage in a cleanup under this Article or
any other provision of law. In the event that an owner or operator is subsequently
identified or located, the Secretary shall seek reimbursement as provided in G.S.
143-215.94G(d). The current landowner shall submit documentation of all
expenditures as required by G.S. 143-215.94G(b).
(c) J In the case of a discharge or release from a noncommercial underground
storage tank or a commercial underground storage tank eligible for the
Noncommercial Fund in accordance with G.S. 143-215.94D(b), the owner or operator
may elect to have the Noncommercial Fund pay or reimburse the owner or operator
for the costs described in G.S. 143-215.94D(bl) up to a maximum of one million
dollars ($1,000,000) per discharge or release.
(d) In any case where the costs described in G.S. 143 215.94B(b) 143-215.94B(b1.
143-215.94B(bl1. or GtSt 143-215.94D(bl) exceed one million dollars ($1,000,000), or
one million five hundred thousand dollars ($1.500.0001 if G.S. 143-215.94B0321
applies, the provisions of Article 21A of this Chapter or any other applicable statute
or common law principle regarding liability shall apply for the amount in excess of
one million dollars ($1,000,000). ($1.000.000') or. if G.S. 143-215.94B(b21 applies, one
million five hundred thousand dollars ($1.500.0001. Nothing contained in this Part
shall limit or modify any liability that any party may have pursuant to Article 21A of
this Chapter, any other applicable statute, or at common law.
(e) When the owner or operator pays the costs described in G.S. 143-215.94B(b)
143-215.94B(b1. 143-215.94B(bl1. or GtSt 143-215.94D(bl) resulting from a discharge
or release of petroleum from an underground storage tank, the owner or operator
may seek reimbursement from the appropriate fund for any costs he may elect to
have either the Commercial Fund or the Noncommercial Fund pay in- accordance
with subsections (b) and (c) of this section. The Department shall reimburse the
owner or operator for all costs he may elect to have the appropriate fund pay that the
Department determines to be reasonable and necessary and for which appropriate
documentation is submitted. The Department mav contract for anv services necessary
to evaluate any claim for reimbursement or compensation from either the
Commercial Fund or the Noncommercial Fund, mav contract for anv expert witness
or consultant services necessary to defend anv decision to pay or deny anv claim for
reimbursement, and mav pay the cost of these services from the fund against which
the claim is made: provided that in anv fiscal year the Department shall not expend
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from either fund more than one percent (1%) of the unobligated balance of the fund
on 30 June of the previous fiscal year. The cost of contractual services to evaluate a
claim or for expert witness or consultant services to defend a decision with respect to
a claim shall be included as costs under G.S. 143-215.94B(b1 and G.S.
143-215.94Dfbl\ The Commission shall adopt rules governing reimbursement of
necessary and reasonable costs. An owner or operator whose claim for
reimbursement is denied may appeal a decision of the Department as provided in
Article 3 of Chapter 150B of the General Statutes. If the owner or operator is
eligible for reimbursement under this section and the cleanup extends beyond a
period of three months, the owner or operator may apply to the Department for
interim reimbursements to which he is entitled under this section on a quarterly basis.
Cell The Department shall not pav anv third party or reimburse anv owner or
operator who has paid anv third party pursuant to anv settlement agreement or
consent judgment relating to a claim bv or on behalf of a third party for
compensation for bodily injury or property damage unless the Department has
approved the settlement agreement or consent judgment prior to entry into the
settlement agreement or consent judgment bv the parties or entry of a consent
judgment bv the court. The approval or disapproval bv the Department of a
proposed settlement agreement or consent judgment shall be subject to challenge only
in a contested case filed under Chapter 150B of the General Statutes. The Secretary
shall make the final agency decision in a contested case proceeding under this
subsection.
(f) The Department shall not reimburse any owner or operator until the fund
from which reimbursement will be made reaches one million dollars ($1,000,000).
(fl) Anv person seeking payment or reimbursement from either the Commercial
Fund or the Noncommercial Fund shall certify to the Department that the costs to be
paid or reimbursed bv the Commercial Fund or the Noncommercial Fund are not
eligible to be paid or reimbursed bv or from anv other source, including anv contract
of insurance. If anv cost paid or reimbursed bv the Commercial Fund or the
Noncommercial Fund is eligible to be paid or reimbursed bv or from another source,
that cost shall not be paid from, or if paid shall be repaid to. the Commercial Fund
or the Noncommercial Fund. As used in this Part, the phrase 'anv other source
including anv contract of insurance' does not include self-insurance.
(g) No owner or operator shall be reimbursed pursuant to this section, and the
Department shall seek reimbursement of the appropriate fund or of the Department
for any monies disbursed from the appropriate fund or expended by the Department
if:
(1) The owner or operator has willfully violated any substantive law,
rule, or regulation applicable to underground storage tanks and
intended to prevent or mitigate discharges or releases or to
facilitate the early detection of discharges or releases;
(2) The discharge or release is the result of the owner's or operator's
willful or wanton misconduct; or
(3) The owner or operator has failed to pay any annual tank operating
fee due pursuant to G.S. 143-215.94C.
(h) Subdivision (1) of subsection (g) of this section shall not be construed to limit
the right of an owner or operator to contest notices of violation or orders issued by
the Department. Subdivision (11 of subsection (%) of this section shall not apply to a
payment or reimbursement pursuant to this section if. at the time of the discharge or
release, the owner or operator holds a valid operating permit as required bv G.S.
143-215.94U.
(i) An owner or operator who notifies the Department of an intention to close or
upgrade a commercial underground storage tank as provided in G.S.
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143-215.94B(b)(2a) shall commence the closure or upgrade prior to 1 July 1994 and
shall complete the closure or upgrade prior to 1 January 1995. An owner who
notifies the Department of an intention to close or upgrade a commercial
underground storage tank and who fails to commence and complete the closure as
specified in this subsection is subject to a civil penalty as provided in G.S.
143-215.94K. The provisions of G.S. 143-215.94B(b)(2a) do not apply if an owner or
operator who notifies the Department of an intention to close or upgrade a
commercial underground storage tank fails to commence or complete the closure or
upgrade within the dates specified in this subsection."
Sec. 9. G.S. 143-215.94G reads as rewritten:
"§ 143-215.94G. Authority of the Department to engage in cleanups; actions for fund
reimbursement.
(a) The Department may use staff, equipment, or materials under its control or
provided by other cooperating federal, State, or local agencies and may contract with
any agent or contractor it deems appropriate to investigate a release, to develop and
implement a cleanup plan, to provide interim alternative sources of drinking water to
third parties, and to pay the initial costs for providing permanent alternative sources
of drinking water to third parties, and shall pay the costs resulting from commercial
underground storage tanks from the Commercial Fund and shall pay the costs
resulting from noncommercial underground storage tanks from the Noncommercial
Fund, whenever there is a discharge or release of petroleum from any of the
following:
(1) A noncommercial underground storage tank.
(2) An underground storage tank whose owner or operator cannot be
identified or located.
(3) An underground storage tank whose owner or operator fails to
proceed as required by G.S. 143-215.94E(a).
(4) A commercial underground storage tank taken out of operation
prior to 1 January 1974 if, when the discharge or release is
discovered, neither the owner nor operator owns or leases the land
on which the underground storage tank is located.
(al) Every State agency shall provide to the Department to the maximum extent
feasible such staff, equipment, and materials as may be available and useful to the
development and implementation of a cleanup program.
(a2) The cost of any action authorized under subsection (a) of this section shall be
paid, to the extent funds are available, from the following sources in the order listed:
(1) Any funds to which the State is entitled under any federal program
providing for the cleanup of petroleum discharges or releases from
underground storage tanks, including, but not limited to, the
Leaking Underground Storage Tank Trust Fund established
pursuant to 26 U.S.C. § 4081 and 42 U.S.C. § 6991b(h).
(2) The Commercial Fund or the Noncommercial Fund.
(b) Whenever the discharge or release of a petroleum product is from a
commercial underground storage tank, the Department may supervise the cleanup of
environmental damage required by G.S. 143-215.94E(a). If the owner or operator
elects to have the Commercial Fund reimburse or pay for any costs allowed under
G.S. 143 215.94B(b), subsection or (bll of G.S. 143-215.94B. the Department shall
require the owner or operator to submit documentation of all expenditures claimed
for the purposes of establishing that the owner or operator has spent the amounts
required to be paid by the owner or operator pursuant to and in accordance with
G.S. 143-215.94E(b). The Department snail allow credit for all expenditures that the
Department determines to be reasonable and necessary. The Department may not
Senate Bill 1012
Page 17
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pay for any costs for which the Commercial Fund was established until the owner or
operator has paid the amounts specified in G.S. 143-215.94E(b).
(c) The Secretary shall keep a record of all expenses incurred for the services of
State personnel and for the use of the State's equipment and material.
(d) The Secretary shall seek reimbursement through any legal means available,
for:
(1) Any costs not authorized to be paid from either the Commercial or
the Noncommercial Fund;
(2) The amounts provided for in G.S. 143-215.94B(b) or G.S.
143-215.94Bfbn required to be paid for by the owner or operator
pursuant to G.S. 143-215.94E(b) where the owner or operator of a
commercial underground storage tank is later identified or located;
(3) The amounts provided for in G.S. 143-215.94B(b) or G.S.
143-215.94Bfbl') required to be paid for by the owner or operator
pursuant to G.S. 143-215.94E(b) where the owner or operator of a
commercial underground storage tank failed to proceed as required
by G.S. 143-215.94E(a);
(3a) The amounts provided for by G.S. 143-215.94B(b)(5) required to
be paid by the owner or operator to third parties for the cost of
providing interim alternative sources of drinking water to third
parties and the initial cost of providing permanent alternative
sources of drinking water to third parties;
(4) Any funds due under G.S. 143-215.94E(g); and
(5) Any funds to which the State is entitled under any federal program
providing for the cleanup of petroleum discharges or releases from
underground storage tanks.
(e) In the event that a civil action is commenced to secure reimbursement
ursuant to subdivisions (1) through (4) of subsection (d) of this section, the
ecretary may recover, in addition to any amount due, the costs of the action,
including but not limited to reasonable attorney's fees and investigation expenses.
Any monies received or recovered as reimbursement shall be paid into the
appropriate fund or other source from which the expenditures were made.
(f) In the event that a recovery equal to or in excess of the amounts required to be
paid for by the owner or operator pursuant to G.S. 143-215.94E(b) is recovered
pursuant to subdivisions (2) and (3) of subsection (d) of this section for the costs
described in G.S. 143 215.94B(b), 143-215.94B(V> or G.S. 143-215.94B(bll the
Department shall transfer funds from the Commercial Fund that would have been
paid from the Commercial Fund pursuant to G.S. 143-215.94B(b) subsection (b^ or
(b2) of G.S. 143-215.94B if the owner or operator had proceeded with the cleanup,
but which were paid from the Noncommercial Fund, into the Noncommercial Fund."
Sec. 10. G.S. 143-215.94K reads as rewritten:
"§ 143-215.94K. Penalties.- Enforcement.
The penalties provided in G.S. 143-215.102 provisions of G.S. 143-215.94W
through G.S. 143-215.94Y shall apply to this Port, provided that no penalty imposed
under this Part shall exceed five thousand dollars ($5.0001 Part."
Sec. 11. G.S. 143-215.94N reads as rewritten:
"§ 143-215.94N. Applicability.
(a) The provisions of this Part as they relate to costs paid for- by from the
Commercial Fund apply only to discharges or releases which that are discovered or
reported on or after 30 June 1988. 1988 from a commercial underground storage
tank.
(b) The provisions of this Part as they relate to costs paid for by from the
Noncommercial Fund apply to discharges or releases without regard to the date
Page 18
Senate Bill 1012
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discovered or reported; however, costs sought purauant to reimbursement of costs
under G.S. 143-215.94G(d)(l), (2), (3), (3a\ and (4) shall be for the full amount of
the costs paid for from the Noncommercial Fund and shall not be limited pursuant to
G.S. 143-215.94E(b) for discharges or releases from commercial underground storage
tanks discovered or reported on or before 30 June 1988."
Sec. 12. G.S. 143-215.77(5) reads as rewritten:
"(5) 'Having control over oil or other hazardous substances' shall mean,
but shall not be limited to, any person, using, transferring, storing,
or transporting oil or other hazardous substances immediately prior
to a discharge of such oil or other hazardous substances onto the
land or into the waters of the State, and specifically shall include
carriers and bailees of such oil or other hazardous substances.
This definition shall not include any person supplying or delivering
oil into a petroleum underground storage tank that is not owned or
operated bv the person, unless:
The person knows or has reason to know that a discharge is
occurring from the petroleum underground storage tank at
the time of supply or delivery:
b. The person's negligence is a proximate cause of the
discharge: or
Ct The person supplies or delivers oil at a facility that requires
an operating permit under G.S. 143-215.94U and a currently
valid operating permit certificate is not held or displayed at
the time of the supply or delivery."
Sec. 13. G.S. 143-215.84 is amended by adding a new subsection to read:
"CalV The Commission shall not require collection or removal of a discharge or
restoration of an affected area under subsection (at of this section if the person
having control over oil or other hazardous substances discharged in violation of this
Article complies with rules governing the collection and removal of a discharge and
the restoration of an affected area adopted bv the Commission pursuant to G.S.
143-214.1 or G.S. 143-215.94V. This subsection shall not be construed to affect the
rights of any person under this Article or anv other provision of law."
Sec. 14. In order to uniformly implement the operating permit program
on 1 July 1996, the Department of Environment, Health, and Natural Resources shall
begin issuing operating permits and operating permit certificates required under G.S.
143-215.94U, as enacted by Section 6 of this act, not later than 1 January 1996. The
Department shall issue an operating permit and an operating permit certificate for
every facility that meets the requirements of G.S. 143-215.94U(a) by 1 July 1996.
Operating permits and operating permit certificates issued prior to 1 July 1996 shall
be effective on 1 July 1996 and shall expire as provided in G.S. 143-215.94U(b).
Sec. 15. (a) There is appropriated from the Commercial Leaking
Petroleum Underground Storage Tank Cleanup Fund to the Department of
Environment, Health, and Natural Resources the sum of two million one hundred
thousand dollars ($2,100,000) for the 1995-96 fiscal year and the sum of Tone million
nine hundred fifty thousand dollars ($1,950,000) for the 1996-97 fiscal year to
implement the provisions of Part 2A and Part 2B of Article 21A of Chapter 143 of
the General Statutes.
(b) There is appropriated from the Noncommercial Leaking Petroleum
Underground Storage Tank Cleanup Fund to the Department of Environment,
Health, and Natural Resources the sum of one hundred twenty-five thousand dollars
($125,000) for the 1995-96 fiscal year and the sum of one hundred twenty-five
thousand dollars ($125,000) for the 1996-97 fiscal year to implement the provisions of
Part 2A and Part 2B of Article 21A of Chapter 143 of the General Statutes.
Senate Bill 1012
Page 19
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(c) There is appropriated from the Commercial Leaking Petroleum
Underground Storage Tank Cleanup Fund to the Department of Agriculture the sum
of one hundred thirty-five thousand dollars ($135,000) for the 1995-96 fiscal year and
the sum of ninety thousand dollars ($90,000) for the 1996-97 fiscal year to implement
the provisions of Part 2A and Part 2B of Article 21A of Chapter 143 of the General
Statutes.
(d) Of the funds appropriated by subsections (a) and (b) of this section,
the Department of Environment, Health, and Natural Resources may allocate up to
two hundred fifty thousand dollars ($250,000) in equal amounts from the Commercial
Fund and the Noncommercial Fund to identify and evaluate abandoned petroleum
underground storage tanks. The Department shall report its findings regarding the
extent to which abandoned petroleum underground storage tanks pose a risk to
human health or the environment and any recommendations that the Department
may have regarding abandoned petroleum underground storage tanks to the
Environmental Review Commission by 1 January 1997.
Sec. 16. The provisions of G.S. 143-215.94V, as enacted by Section 1 of
this act, shall constitute a recent act of the General Assembly within the meaning of
G.S. 150B-21.1(a)(2). The provisions of G.S. 150B-21.1(b) shall not apply to
temporary rules implementing G.S. 143-215.94V, as enacted by Section 1 of this act.
Notwithstanding G.S. 150B-21.1(d), temporary rules adopted to implement G.S.
143-215.94V, as enacted by Section 1 of this act, may remain in effect until the
Environmental Management Commission adopts permanent rules.
Sec. 17. Sections 1, 4,12, 13, 14, 16, and 17 of this act are effective upon
ratification. Section 2 of this act becomes effective 1 July 1996. Sections 3 and 10 of
this act become effective 1 January 1996 and apply to offenses occurring or
continuing on or after that date. Sections 5, 7, 8, 9, and 11 of this act are effective
upon ratification, apply to any pending claim for reimbursement, and apply
retroactively to any discharge or release that was discovered or reported on or after
30 June 1988, except that G.S. 143-215.94B(d)(6), as enacted by Section 5 of this act,
and G.S. 143-215.94D(d)(6), as enacted by Section 7 of this act, apply only to a
discharge or release that was discovered or reported on or after 30 March 1990, and
except that G.S. 143-215.94E(fl), as enacted by Section 8 of this act, applies only to
payments and reimbursements made on or after the date this act becomes effective
and only to costs that are eligible to be paid or reimbursed from either the
Commercial Fund or the Noncommercial Fund for a discharge or release that was
discovered or reported on or after 30 March 1990. Section 6 of this act becomes
effective 1 January 1996. Section 15 of this act is effective on and after 1 July 1995.
In the General Assembly read three times and ratified this the 5th day of
July, 1995.
dennjs a. wicker
Dennis A. Wicker
President of the Senate
HAROLD J. BRU3AK0*
Harold J. Brubaker
Speaker of the House of Representatives
Page 20
Senate Bill 1012
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GENERAL ASSEMBLY OF NORTH CAROI,
1995 SESSION
RATIFIED BILL
MANAGEMENT
DIVISION
/IfZTrTl
NOV 2 2- KC'° j
lEffTrety)
EPA REGION IV
ATLANTA ,^GA.
CHAPTER 648
SENATE BILL 1317
AN ACT TO PROVIDE FOR THE CONTINUED SOLVENCY OF THE
COMMERCIAL LEAKING PETROLEUM UNDERGROUND STORAGE TANK
CLEANUP FUND AND TO MAKE OTHER CHANGES TO THE LEAKING
PETROLEUM UNDERGROUND STORAGE TANK CLEANUP PROGRAM,
AS RECOMMENDED BY THE ENVIRONMENTAL REVIEW COMMISSION.
The General Assembly of North Carolina enacts:
Section 1. Temporary suspension of cleanups pending adoption of
risk-assessment rules -- (a) The definitions set out in G.S. 143-215.94A apply to this
section.
(b) The Department shall classify the impact of each known discharge or
release of a petroleum product from an underground storage tank as either a Class
AB impact or a Class CDE impact. The Department shall make the classification on
the basis of information currently known by the Department or provided to the
Department as required by law. The Department shall revise the classification as
additional information is received. The impact of a discharge or release is a Class
CDE impact unless and until it is classified as a Class AB impact. A discharge or
release has a Class AB impact if and only if any of the following apply:
f 1^ A water supply well is contaminated.
(2) Petroleum vapor is present in a confined space.
(3) A water supply well is located within 1,500 feet of the discharge,
release, or known extent of contamination and there is a user of
water from any water supply well located within 1,500 feet of the
discharge, release, or known extent of contamination who is not
served by an existing public water supply.
(4) The discharge or release results in a violation of drinking water
standards set out in rules adopted by the Commission for Health
Services under G.S. 130A-315 in a treated surface water supply.
(5) The discharge or release poses an imminent danger to public
health, public safety, or the environment.
(c) The Department shall give notice of the classification of the impact
of a cleanup of a discharge or release from a petroleum underground storage tank by
publishing the classification in the North Carolina Register. To the maximum extent
practical, the Department shall give notice of the classification of the impact of a
cleanup of a discharge or release from a petroleum underground storage tank by
first-class mail to either the owner, operator, or other person responsible for the
cleanup as shown on records maintained by the Department at the address on file
with the Department.
(d) The Commission shall not require the cleanup of a discharge or
release from a petroleum underground storage tank having a Class CDE impact
-------
except Ihat an owner, operator, or other person responsible for the cleanup of a
((^Sjcni^rge^ifFelease from a petroleum underground storage tank shall:
(ijf Take immediate action to prevent any further release or discharge
j of petroleum from the underground storage tank; identify and
I j i j mitigate any fire, explosion, or vapor hazard; and remove any free
] 'j |"= 11 j' petroleum product.
Meet applicable requirements of 40 Code of Federal Regulations
- • A § 280.50 through § 280.53 and § 280.60 through § 280.64 (1 July
1995 Edition).
(3) Submit any information that the Department may require to
classify the impact of the discharge or release pursuant to this
section.
(e) If the impact of a discharge or release is classified as having a Class
CDE impact, the Department shall not pay or reimburse any costs otherwise payable
or reimbursable under Part 2A of Article 21A of Chapter 143 of the General Statutes
from either the Commercial Fund or Noncommercial Fund unless:
(1) The costs are incurred to comply with subsection (d) of this
section.
(2) The payment or reimbursement is for costs that were incurred
prior to notification that the impact of the discharge or release has
been classified as Class CDE by the Department.
(3) The payment or reimbursement is for costs that were incurred for
a discharge or release the impact of which is subsequently
classified as a Class AB impact by the Department.
£4) Cleanup is ordered or damages are awarded in a finally
adjudicated judgment in an action against the owner, operator, or
landowner.
(5) Cleanup is required or damages are agreed to in a consent
judgment approved by the Department prior to its entry by the
court.
(6) Cleanup is required or damages are agreed to in a settlement
agreement approved by the Department prior to its execution by
the parties.
(7) The Department approves continuation of the cleanup as provided
in subsection (f) of this section.
(f) An owner, operator, or landowner who is responsible for the cleanup
from a discharge or release who is not eligible to have the costs of the cleanup paid
or reimbursed because the impact of the discharge or release has been classified as a
Class CDE impact may petition the Department for continued eligibility for payment
or reimbursement. The Department shall authorize continuation of the cleanup only
if the owner, operator, or landowner responsible for the cleanup establishes that:
(1) The owner, operator, or landowner responsible for cleanup has
incurred costs that are reimbursable under G.S. 143-215.94E(e), or
that would be reimbursable if those costs were in excess of the
costs for which the owner, operator, or landowner is responsible
under G.S. 143-215.94B, 143-215.94D, or 143-215.94E.
(2) The owner, operator, or landowner either has paid or will pay all
costs for which the owner, operator, or landowner is responsible.
(3) Discontinuation of the cleanup will result in a hardship. For
purposes of this subdivision, a hardship exists if and only if the
discontinuation of the cleanup will prevent the conveyance
through a bona fide sale for value of the property where the
discharge or release occurred. The owner, operator, or landowner
Page 2
Senate Bill 1317
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responsible for the cleanup shall present a contract of
executed on or before 31 December 1996 that is contingeni
continuation of the cleanup. If the conveyance of the prop-
does not occur within 120 days after the contract of sale
executed or under the terms of the contract for any reason, thi
Department shall discontinue eligibility under this subsection.
(g) Except for costs incurred to comply with subsection (d) of this
section, the Department shall not pay or reimburse any costs otherwise payable or
reimbursable under Part 2 A of Article 21A of Chapter 143 of the General Statutes
from either the Commercial Fund or the Noncommercial Fund for a discharge or
release that is discovered on or after the date this act is ratified until the impact of
the release has been classified as provided in subsection (b) of this section.
Sec. 2. G.S. 143-215.94C(a) reads as rewritten:
"(a) For purposes of this subsection, each compartment of a commercial
underground storage tank that is designed to independently contain a petroleum
product is a separate petroleum commercial underground storage tank. The owner
or operator of a commercial petroleum underground storage tank shall pay to the
Secretary for deposit into the Commercial Fund an annual operating fee according to
the following schedule:
(1) For each petroleum commercial underground storage tank of 3,500
gallons or less capacity -- one hundred fifty dollars ($150.00). two
hundred dollars ($200.00V
(2) For each petroleum commercial underground storage tank of more
than 3,500 gallon capacity - two hundred twenty five dollars
(£225.00). three hundred dollars ($300.00)."
Sec. 3. G.S. 143-215.94E is amended by adding a new subsection to read:
"(cl) In the case of a discharge or release from a noncommercial underground
storage tank where the owner and operator cannot be identified or located, or where
the owner and operator fail to proceed as required bv subsection fa) of this section, if
the current landowner of the land in which the noncommercial underground storage
tank is located notifies the Department in accordance with G.S. 143-215.85 and
undertakes to collect and remove the discharge or release and to restore the area
affected in accordance with the requirements of this Article and applicable federal
and State laws, regulations, and rules, the current landowner mav elect to have the
Noncommercial Fund pav or reimburse the current landowner for ninety percent
(90%^ of anv costs described in subdivisions (1) and (2) of G.S. 143-215.94D(bl) that
exceed five thousand dollars ($5.000). Eligibility for reimbursement under this
subsection mav be transferred to a subsequent landowner from a current landowner
who has paid the costs for which the landowner is responsible under this subsection.
The sum of payments from the Noncommercial Fund and from all other sources shall
not exceed one million dollars (£1.000.000) per discharge or release. This subsection
shall not be construed to require a current landowner to clean up a discharge or
release of petroleum from an underground storage tank for which the current
landowner is not otherwise responsible. This subsection does not alter any right.
duty, obligation, or liability of a current landowner, former landowner, subsequent
landowner, owner, or operator under other provisions of law. This subsection shall
not be construed to limit the authority of the Department to engage in a cleanup
under this Article or anv other provision of law. The current landowner shall submit
documentation of all expenditures as required bv G.S. 143-215.94G(b)."
Sec. 4. G.S. 143-215.94E(e) reads as rewritten:
"(e) When the owner or operator pays the costs described in G.S. 143-215.94B(b),
143-215.94B(bl), or 143-215.94D(bl) resulting from a discharge or release of
petroleum from an underground storage tank,, the owner or operator may seek
Senate Bill 1317
Page 3
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reimbursement from the appropriate fund for any costs he may elect to have either
the Commercial Fund or the Noncommercial Fund pay in accordance with
subsections (b) and (c) of this section. The Department shall reimburse the owner or
operator for all costs he may elect to have the appropriate fund pay that the
Department determines to be reasonable and riecessai^ and for which appropriate
documentation is submitted. The Department may contract for any services necessary
to evaluate any claim for reimbursement or compensation from either the
Commercial Fund or the Noncommercial Fund, may contract for any expert witness
or consultant services necessary to defend any decision to pay or deny any claim for
reimbursement, and may pay the cost of these services from the fund against which
the claim is made; provided that in any fiscal year the Department shall not expend
from either fund more than one percent (1%) of the unobligated balance of the fund
on 30 June of the previous fiscal year. The cost of contractual services to evaluate a
claim or for expert witness or consultant services to defend a decision with respect to
a claim shall be included as costs under G.S. 143-215.94B(b) and G.S.
143-215.94D(bl). The Commission shall adopt rules governing reimbursement of
necessary and reasonable costs. An owner or operator whose claim for
reimbursement is denied may appeal a decision of the Department as provided in
Article 3 of Chapter 150B of the General Statutes. If the owner or operator is eligible
for reimbursement under this section and the cleanup extends beyond a period of
three months, the owner or operator may apply to the Department for interim
reimbursements to which he is entitled under this section on a quarterly basis. If the
Department fails to notify an owner or operator of its decision on a claim for
reimbursement under this subsection within 90 davs after the date the claim is
received bv the Department, the owner or operator may elect to consider the claim to
have been denied, and mav appeal the denial as provided in Article 3 of Chapter
150B of the General Statutes."
Sec. 5. The Department of Environment, Health, and Natural Resources
shall study options for privatization of the leaking petroleum underground storage
cleanup program. The Department shall pay any costs associated with this study
from funds otherwise available to the Department for the implementation of Part 2A
and Part 2B of Article 21A of Chapter 143 of the General Statutes. The Department
shall report its findings and recommendations, including any proposed legislation, to
the Environmental Review Commission on or before 1 November 1996.
Sec. 6. The Environmental Management Commission shall publish the
text of the proposed rule required by G.S. 143-215.94V(b) as soon as possible and no
later than 1 January 1997. The Environmental Management Commission shall adopt
a rule to implement the requirements of G.S. 143-215.94V(b) as soon as possible and
no later than 1 October 1997.
Sec. 7. The Revisor of Statutes shall set out Section 1 of this act as a
note to G.S. 143-215.94V.
Sec. 8. Nothing in this act shall be construed to waive the sovereign
immunity of the State for any action or omission of the State or of any agent or
employee of the State in implementing the provisions of this act. The provisions of
Article 31 of Chapter 143 of the General Statutes, Tort Claims against State
Departments and Agencies, shall not apply to any action or omission of the State or
of any agent or employee of the State in implementing the provisions of this act.
There shall be no liability for negligence on the part of the State or of any agent or
employee for any action or omission in implementing the provisions of this act.
Page 4
Senate Bill 1317
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Sec. 9. Sections 1 and 7 of this act become effective 30 days after .
date this act is ratified and expires on the date that a temporary or permanent r
adopted under G.S. 143-215.94V(b) become effective as provided in G.S. 150B-21
Section 2 of this act becomes effective 1 January 1997. Section 3 of this act become-
effective upon ratification, applies retroactively to any discharge or release that is
discovered and reported on or after 1 January 1992 and before 1 October 1997, and
expires on 1 October 1997. Section 4 of this act is effective upon ratification.
Sections 5, 6, 8, and 9 of this act become effective upon ratification.
In the General Assembly read three times and ratified this the 21st day of
June, 1996.
DENNIS A. WICKER
Dennis A. Wicker
President of the Senate
HAROLD J. BRUBAK9?
Harold J. Brubaker
Speaker of the House of Representatives
Senate Bill 1317
Page 5
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GENERAL ASSEMBLY OF NORTH CARQJCve^V _
1993 SESSION vvlL &
RATIFIED BILL
CHAPTER 402
HOUSE BILL 1061
AN ACT TO AMEND THE LEAKING PETROLEUM UNDERGROUND
STORAGE TANK CLEANUP ACT OF 1988 AND TO CLARIFY THE
PURPOSES OF THE OIL OR OTHER HAZARDOUS SUBSTANCES
POLLUTION PROTECTION FUND.
The General Assembly of North Carolina enacts:
Section 1. G.S. 143-215.94B reads as rewritten:
"§ 143-215.94B. Commercial Leaking Petroleum Underground Storage Tank Cleanup
Fund.
(a) There is established under the control and direction of the Department the
Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund. This
Commercial Fund shall be a nonreverting revolving fund consisting of any monies
appropriated for such purpose by the General Assembly or available to it from grants,
other monies paid to it or recovered on behalf of the Commercial Fund, and fees
paid pursuant to this Part.
(b) The Commercial Fund shall be used for the payment of the following costs up
to an aggregate maximum of one million dollars ($1,000,000) per occurrence resulting
from a discharge or release of a petroleum product from a commercial underground
storage tank that at the time the discharge or release is discovered or reported is
beneath the surface of the ground or has been removed within the preceding 120
days:
(1) For discharges or releases discovered or reported between 30 June
1988 and 31 December 1991 inclusive, the cleanup of
environmental damage as required by G.S. 143-215.94E(a) in
excess of fifty thousand dollars ($50,000) per occurrence.
(2) For discharges or releases discovered on or after 1 January 1992
and reported between 1 January 1992 and 31 December 1993
inclusive, the cleanup of environmental damage as required by
G.S. 143-215.94E(a) in excess of twenty thousand dollars ($20,000)
per occurrence.
(2a) For discharges or releases discovered and reported on or after 1
January 1994 and prior to 1 January 1995. the cleanup of
environmental damage as required bv G.S. 143-215.94E(a) in
excess of twenty thousand dollars (820.000) if the owner or
operator (i) notifies the Department prior to 1 January 1994 of its
intent to permanently close the tank in accordance with applicable
regulations or to upgrade the tank to meet the requirements that
existing underground storage tanks must meet bv 22 December
1998. (ii) commences closure or upgrade of the tank prior to 1 July
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1994. and (iifl completes closure or upgrade of the tank prior to 1
January 1995.
(3) For discharges or releases reported on or after 1 January 1994, the
cleanup of environmental damage as required by G.S.
143-215.94E(a) in excess of twenty thousand dollars ($20,000) if,
prior to the discharge or release, the commercial underground
storage tank from which the discharge or release occurred met the
Eerformance standards applicable to tanks installed after 22
December 1988 or met the requirements that existing underground
storage tanks must meet by 22 December 1998.
(4) For discharges or releases reported on or after 1 January 1994 from
a commercial underground storage tank that does not qualify
under subdivision (2a) of this subsection or does not meet the
standards in subdivision (3) of this subsection, sixty percent (60%)
of the costs per occurrence of the cleanup of environmental
damage as required by G.S. 143-215.94E(a) that exceeds twenty
thousand dollars ($20,000) but is not more than one hundred
fifty-seven thousand five hundred dollars ($157,500) and one
hundred percent (100%) of the costs above this amount, up to the
limits established in this section.
(5) Compensation to third parties for bodily injury and property
damage in excess of one hundred thousand dollars ($100,000) per
occurrence.
(6) Reimbursing the State for damages or other costs incurred as a
result of a loan from the Loan Fund. The per occurrence limit
does not apply to reimbursements to the State under this
subdivision.
(bl) In the case of a discharge or release of a petroleum product from a
commercial underground storage tank that is discovered and reported more than 120
davs after the tank has been removed from the ground and prior to 1 July 1994. the
Commercial Fund shall be used for the payment of costs resulting from the discharge
or release in excess of the costs for which the owner or operator is responsible under
subsection (b) of this section up to an aggregate of one million dollars (Sl.000.000)
per occurrence. For the purpose of determining the costs for which the owner or
operator is responsible under subsection (b1 of this section, the discharge or release
shall be considered to have been discovered and reported on the date the
underground storage tank was removed from the ground. Costs shall be paid under
this subsection onlv if the owner establishes that the:
(11 Tank was removed from the ground on or after 22 December 1988:
(2) Discharge was not discovered at the time the tank was removed:
and
(3} ' Tank was removed in compliance with all applicable federal and
State laws, regulations, and rules in force at the time the tank was
removed.
(c) The Commercial Fund is to be available on an occurrence basis, without
regard to number of occurrences associated with tanks owned or operated by the
same owner or operator.
(d) The Commercial Fund shall not be used for:
(1) Costs incurred as a result of a discharge or release from an
aboveground tank, aboveground pipe or fitting not connected to an
underground storage tank, or vehicle;
(2) The removal or replacement of any tank, pipe, fitting or related
equipment;
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(3) Costs incurred as a result of a discharge or release of petroleum
from a transmission pipeline;
(4) Costs intended to be paid by the Noncommercial Fund; or
(5) Costs associated with the administration of any underground
storage tank program other than the program administered
pursuant to this Part.
(e) The Commercial Fund shall be treated as a special trust fund and shall be
credited with interest by the State Treasurer pursuant to G.S. 147-69.2 and G.S.
147-69.3."
Sec. 2. G.S. 143-215.94C(b) reads as rewritten:
"(b) The annual operating fee shall be determined on a calendar year basis. For
petroleum commercial underground storage tanks in use on 1 January, January and
remaining in use on or after 1 December of that year, the annual operating fee due
for that year shall be as specified in subsection (a) of this section. For a petroleum
commercial underground storage tanks which are tank that is first placed in use in
any year, the annual operating fee due for that year shall be determined by
multiplying one-twelfth (1/12) of the amount specified in subsection (a) of this section
by the number of months remaining in the calendar year. For a petroleum
commercial underground storage tank that is permanently removed from use in anv
year, the annual operating fee due for that vear shall be determined bv multiplying
one-twelfth (1/12") of the amount specified in subsection fa) of this section bv the
number of months in the calendar vear preceding the permanent removal from use.
In calculating the pro rata annual operating fee for a tank that is first placed in use or
permanently removed during a calendar vear under the preceding two sentences, a
partial month shall count as a month, except that where a tank is permanently
removed and replaced bv another tank, the total of the annual operating fee for the
tank that is removed and the replacement tank shall not exceed the annual operating
fee for the replacement tank. The annual operating fee shall be due and payable on
the first day of the month in accordance with a staggered schedule established by the
Department. The Department shall implement a staggered schedule to the end that
the total amount of fees to be collected by the Department is approximately the same
each month, quarter. A person who owns or operates more than one commercial
petroleum commercial underground storage tank may request that the fee for all
tanks be due at the same time. A person who owns or operates 12 or more
commercial petroleum storage tanks may request that the total of all fees be paid in
four equal payments to be due on the first day of each calendar quarter."
Sec. 3. G.S. 143-215.94E reads as rewritten:
"§ 143-215.94E. Rights and obligations of the owner and operator.
(a) Upon a determination that a discharge or release of petroleum from an
underground storage tank has occurred, the owner or operator shall notify the
Department pursuant to G.S. 143-215.85. The owner or operator shall immediately
undertake to collect and remove the discharge or release and to restore the area
affected in accordance with the requirements of this Article.
(b) In the case of a discharge or release from a commercial underground storage
tank where the owner or operator has been identified and has proceeded with
cleanup, the owner or operator may elect to have the Commercial Fund pay or
reimburse the owner or operator for any costs described in G.S. 143-215.94B(b) that
exceed the amounts for which the owner or operator is responsible under that
section, subsection. The sum of payments by the owner or operator and the payments
from the Commercial Fund shall not exceed one million dollars ($1,000,000) per
discharge or release.
(bl) In the case of a discharge or release from a commercial underground storage
tank where the owner and operator cannot be identified or located, or where the
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owner and operator fail to proceed as required by subsection (a) of this section, if the
current landowner of the land in which the commercial underground storage tank is
located notifies the Department in accordance with G.S. 143-215.85 and undertakes
to collect and remove the discharge or release and to restore the area affected in
accordance with the requirements of this Article and applicable federal and State
laws, regulations, and rules, the current landowner may elect to have the Commercial
Fund pay or reimburse the current landowner for any costs described in subdivisions
(1), (2), (2a). (3), and (4) of G.S. 143-215.94B(b) that exceed the amounts for which
the owner or operator is responsible under that subsection. The current landowner is
not eligible for payment or reimbursement until the current landowner has paid the
costs described in subdivisions (1), (2), (2aV (3), and (4) of G.S. 143-2 l5.94B(b) for
which the owner or operator is responsible. Eligibility for reimbursement under this
subsection may be transferred from a current landowner who has paid the costs
described in subdivisions (1), (2), (2a). (3), and (4) of G.S. 143-215.94B(b) to a
subsequent landowner. The sum of payments from the Commercial Fund and from
all other sources shall not exceed one million dollars ($1,000,000) per discharge or
release. This subsection shall not be construed to require a current landowner to
cleanup a discharge or release of petroleum from an underground storage tank for
which the current landowner is not otherwise responsible. This subsection does not
alter any right, duty, obligation, or liability of a current landowner, former
landowner, subsequent landowner, owner, or operator under other provisions of law.
This subsection shall not be construed to limit the authority of the Department to
engage in a cleanup under this Article or any other provision of law. In the event that
an owner or operator is subsequently identified or located, the Secretary shall seek
reimbursement as provided in G.S. 143-215.94G(d). The current landowner shall
submit documentation of all expenditures as required by G.S. 143-215.94G(b).
(c) In the case of a discharge or release from a noncommercial underground
storage Hmk, tank or a commercial underground storage tank eligible for the
Noncommercial Fund in accordance with G.S. 143-215.94D(b^. the owner or operator
may elect to have the Noncommercial Fund pay or reimburse the owner or operator
for the costs described in G.S. 143-215.94D(b) 143-215.94D(bl) up to a maximum of
one million dollars (S 1,000,000) per discharge or release.
(d) In any case where the costs described in G.S. 143-215.94B(b) or G.S.
143 215.94D(b) 143-215.94Dfbl,> exceed one million dollars ($1,000,000), the
{>rovisions of Article 21A of this Chapter or any other applicable statute or common
aw regarding liability shall apply for the amount in excess of one million dollars
($1,000,000). Nothing contained in this Part shall limit or modify any liability that any
party may have pursuant to Article 21A of this Chapter, any other applicable statute,
or at common law.
(e) When the owner or operator pays the costs described in G.S. l43-215.94B(b)
or G.S. 143 215.94D(b) 143-215.94D(bl) resulting from a discharge or release of
petroleum from an underground storage tank, the owner or operator may seek
reimbursement from the appropriate fund for any costs he may elect to have either
the Commercial or the Noncommercial Fund pay in accordance with subsections (b)
and (c) of this section. The Department shall reimburse the owner or operator for all
costs he may elect to have the appropriate fund pay that the Department determines
to be reasonable and necessary and for which appropriate documentation is
submitted. The Commission shall adopt rules governing reimbursement of necessary
and reasonable costs. An owner or operator whose claim for reimbursement is denied
may appeal a decision of the Department as provided in Article 3 of Chapter 150B of
the General Statutes. If the owner or operator is eligible for reimbursement under
this section and the cleanup extends beyond a period of three months, the owner or
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operator may apply to the Department for interim reimbursements to which he is
entitled under this section on a quarterly basis.
(f) The Department shall not reimburse any owner or operator until the fund
from which reimbursement will be made reaches one million dollars ($1,000,000).
(g) No owner or operator shall be reimbursed pursuant to this section, and the
Department shall seek reimbursement of the appropriate fund or of the Department
for any monies disbursed from the appropriate fund or expended by the Department
if:
(1) The owner or operator has willfully violated any substantive law,
rule, or regulation applicable to underground storage tanks and
intended to prevent or mitigate discharges or releases or to
facilitate the early detection of discharges or releases;
(2) The discharge or release is the result of the owner's or operator's
willful or wanton misconduct; or
(3) The owner or operator has failed to pay any annual tank operating
fee due pursuant to G.S. 143-215.94C.
(h) Subdivision (1) of subsection (g) of this section shall not be construed to limit
the right of an owner or operator to contest notices of violation or orders issued by
the Department.
fO An owner or operator who notifies the Department of an intention to close or
upgrade a commercial underground storage tank as provided in G.S.
143-215.94B(,b)f2a') shall commence the closure or upgrade prior to 1 July 1994 and
shall complete the closure or upgrade prior to 1 January 1995. An owner who
notifies the Department of an intention to close or upgrade a commercial
underground storage tank and who fails to commence and complete the closure as
specified in this subsection is subject to a civil penalty as provided in G.S.
143-215.94K. The provisions of G.S. 143-215.94B(bK2a) do not applv if an owner or
operator who notifies the Department of an intention to close or upgrade a
commercial underground storage tank fails to commence or complete the closure or
upgrade within the dates specified in this subsection."
Sec. 4. G.S. 143-215.94G reads as rewritten:
"§ 143-215.94G. Authority of the Department to engage in cleanups; actions for fund
reimbursement.
(a) The Department may use staff, equipment, or materials under its control or
provided by other cooperating federal, State, or local agencies and te mav contract
with any agent or contractor it deems appropriate to develop and implement a
cleanup plan plan, to provide interim alternative sources of drinking water to third
parties, and to pav the initial costs for providing permanent alternative sources of
drinking water to third parties, and te shall pay the costs resulting from commercial
underground storage tanks from the Commercial Fund and shall pav the costs
resulting from noncommercial underground storage tanks authorized—by G.S.
143 215.04D(b) from the Noncommercial Fund Fund, whenever there is a discharge
or release of petroleum from any of the following:
0} A noncommercial underground storage tank.
(2) An underground storage tank whose owner or operator cannot be
identified or located.
(3) An underground storage tank whose owner or operator fails to
proceed as required by G.S. 143-215.94E(a).
(4) A commercial underground storage tank taken out of operation
prior to 1 January 1974 if, when the discharge or release is
discovered, neither the owner nor operator owns or leases the land
on which the underground storage tank is located.
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(al) Every State agency shall provide to the Department to the maximum extent
feasible such staff, equipment, and materials as may be available and useful to the
development and implementation of a cleanup program.
(a2) The cost of any action authorized under subsection (a^ of this section shall be
paid, to the extent funds are available, from the following sources in the order listed:
Oi Anv funds to which the State is entitled under any federal program
providing for the cleanup of petroleum discharges or releases from
underground storage tanks, including, but not limited to. the
Leaking Underground Storage Tank Trust Fund established
pursuant to 26 U.S.C. $ 4081 and 42 U.S.C. S 6991b(hV
{21 The Commercial Fund or the Noncommercial Fund.
(b) Whenever the discharge or release of a petroleum product is from a
commercial underground storage tank, the Department may supervise the cleanup of
environmental damage required by G.S. 143-2l5.94E(a). If the owner or operator
elects to have the Commercial Fund reimburse or pay for any costs allowed under
C.S. 143-215.94B(b), the Department shall require the owner or operator to submit
documentation of all expenditures claimed for the purposes of establishing that the
owner or operator has spent the amounts required to be paid by the owner or
operator pursuant to and in accordance with G.S. 143-215.94E(b). The Department
shall allow credit for all expenditures that the Department determines to be
reasonable and necessary. The Department may not pay for any costs for which the
Commercial Fund was established until the owner or operator has paid the amounts
specified in G.S. 143-215.94E(b).
(c) The Secretary shall keep a record of all expenses incurred for the services of
State personnel and for the use of the State's equipment and material.
(d) The Secretary shall seek reimbursement through any legal means available,
for:
(1) Any costs not authorized to be paid from either the Commercial or
the Noncommercial Fund;
(2) The amounts provided for in G.S. 143-215.94B(b) required to be
paid for by the owner or operator pursuant to G.S. 143-215.94E(b)
where the owner or operator of a commercial underground storage
tank is later identified or located;
(3) The amounts provided for in G.S. 143-215.94B(b) required to be
paid for by the owner or operator pursuant to G.S. 14j-215.94E(b)
where the owner or operator of a commercial underground storage
tank failed to proceed as required by G.S. 143-215.94E(a);
(3a) The amounts provided for bv G.S. 143-215.94B(b¥5') required to
be paid bv the owner or operator to third parties for the cost of
providing interim alternative sources of drinking water to third
parties and the initial cost of providing permanent alternative
sources of drinking water to third parties:
4) Any funds due under G.S. 143-215.94E(g); and
5) Any funds to which the State is entitled under any federal program
providing for the cleanup of petroleum discharges or releases from
underground storage tanks.
(e) In the event that a civil action is commenced to secure reimbursement
pursuant to subdivisions (1) through (4) of subsection (d) of this section, the
Secretary may recover, in addition to any amount due, the costs of the action,
including but not limited to reasonable attorney's fees and investigation expenses.
Any monies received or recovered as reimbursement shall be paid into the
appropriate fund or other source from which the expenditures were made.
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(f) In the event that a recovery equal to or in excess of the amounts required to be
paid for by the owner or operator pursuant to G.S. 143-215.94E(b) is recovered
pursuant to subdivisions (2) and (3) of subsection (d) of this section for the costs
described in G.S. 143-215.94B(b), the Department shall transfer funds from the
Commercial Fund that would have been paid from the Commercial Fund pursuant to
G.S. 143-215.94B(b) if the owner or operator had proceeded with the cleanup, but
which were paid from the Noncommercial Fund, into the Noncommercial Fund."
Sec. 5. G.S. 143-215.94H reads as rewritten:
"§ 143-215.94H. Financial responsibility.
The Department shall require each owner and operator of a petroleum
underground storage tank who is required to demonstrate financial responsibility
under rules promulgated by the United States Environmental Protection Agency
pursuant to 42 U.S.C. § 6991b(d) to maintain evidence of financial responsibility of
not less than the amounts required to be paid for by the owner or operator pursuant
to G.S. 143-215.94E(b) per occurrence for costs described in G.S. 14j-215.94B(b) and
G.S. 443 215.Q4D(b). 143-215.94D(bO. Financial responsibility may be established in
accordance with rules adopted by the Commission which shall provide that financial
responsibility may be established by either insurance, guarantee, surety bond, letter of
credit, qualification as a self-insurer, or any combination thereof. The compliance
date schedule for demonstrating financial responsibility shall conform to the schedule
adopted by the Environmental Protection Agency."
Sec. 6. G.S. 143-215.94M reads as rewritten:
"§ 143-215.94M. Reports.
(a) The Secretary shall present a semiannual report to the Joint Legislative
Commission—©a—Governmental—Operations—and—fcke Environmental Review
Commission which shall include at least the following:
(1) A list of all discharges or releases of petroleum from underground
storage tanks;
(2) A list of all cleanups requiring State funding through the
Noncommercial Fund and a comprehensive budget to complete
such cleanups;
(3) A list of all cleanups undertaken by tank owners or operators and
the status of these cleanups;
(4) A statement of receipts and disbursements for both funds; the
Commercial Fund and the Noncommercial Fund:
(5) A statement of all claims against both funds the Commercial Fund
and the Noncommercial Fund, including claims paid, claims
denied, pending claims, anticipated claims, and any other
obligations;
(6) The adequacy of both funds the Commercial Fund and the
Noncommercial Fund to carry out the purposes of this Part; Part
together with anv recommendations as to measures that mav be
necessary to assure the continued solvency of the Commercial
Fund and the Noncommercial Fund: and
(7) A statement of the condition of the Loan Fund and a summary of
all activity under the Loan Fund.
(b) The semiannual reports required by this section shall be made by the
Secretary on 1 March and 1 September of each year beginning 1 March 1992."
Sec. 7. G.S. 143-215.94P reads as rewritten:
"§ 143-215.94P. Groundwater Protection Loan Fund.
(a) There is established under the control and direction of the Department the
Groundwater Protection Loan Fund. This Loan Fund shall be a nonreverting
revolving fund consisting of any monies appropriated to it by the General Assembly
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or available to it from grants, and other monies paid to it or recovered on behalf of
the Loan Fund. The Loan Fund shall be credited with interest on the Loan Fund by
the State Treasurer pursuant to G.S. 147-69.2 and G.S. 147-69.3.
(b) The Loan Fund shall be used to provide loans to the owners of commercial
petroleum underground storage tanks who are creditworthy but mav be unable to
secure conventional loans to upgrade or replace commercial underground storage
tanks in use on 1 July 1991 so as to meet the performance standards applicable to
tanks installed after 22 December 1988 or the requirements that existing underground
storage tanks must meet by 22 December 1998. All applications for loans under this
section must be received by the Department prior to 1 January 1995.
(c) Using generally accepted standards prevailing among commercial lending
institutions, the The Department shall adopt rules for use in managing the Loan
Fund. Rules for managing the Loan Fund shall be based on generally accepted
standards prevailing among commercial lending institutions with such modifications
as mav be necessary to achieve the purpose of this section to make loans available to
creditworthy applicants. The Department shall administer the loan program through
existing commercial lending institutions. In the event that the Department is unable
to arrange for the administration of the loan program through existing commercial
institutions in all or any part of the State, the Department may administer the loan
program through the Office of State Budget and Management. Each commercial
institution or agency that administers any part of the loan program shall collect all
charges for securing and administering each loan, including but not limited to
application fees, recording costs, collection costs, and attorneys' fees from the
borrower. Receipt of a loan from the Loan Fund is not a right, duty, or privilege;
therefore, Article 3 of Chapter 150B of the General Statutes does not apply to the
grant or denial of a loan from the Loan Fund.
(d) Funds received in repayment of loans made from the Loan Fund shall be
deposited into the Loan Fund until the proceeds of all approved loans are disbursed
to the borrowers. Thereafter, funds received in repayment of loans made from the
Loan Fund and any other funds remaining in the Loan Fund shall be deposited in
the Commercial Fund.
(e) In the event of a default on a loan from the Loan Fund or a violation of a
loan agreement, the Secretary may request the Attorney General to bring a civil
action for collection of the amount owed or other appropriate relief. An action shall
be filed in the superior court of the county where the loan recipient resides, where
the loan recipient does business, or where the tanks replaced or upgraded by the loan
are located. In an action, the Attorney General may recover all costs of litigation,
including attorneys' fees.
(f) If the State incurs liability in extending credit from the Loan Fund and, as a
result of the liability, the State is ordered to pay or, as part of a settlement agreement,
agrees to pay damages or other costs, the State shall seek reimbursement for the
amount of the damages or other costs from the following sources in the order listed;
(1) Any funds to which the State is entitled under any federal program
providing for the cleanup of petroleum discharges or releases from
underground storage tanks, including but not limited to the
Leaking Underground Storage Tank Trust Fund established
pursuant to 26 U.S.C. § 4081 and 42 U.S.C. § 6991b(h).
(2) The Noncommercial Fund.
(3; The Commercial Fund."
Sec. 8. G.S. 119-18 reads as rewritten:
"§ 119-18. Inspection fee: allotment* for administration expenses. tax and distribution
of the tax proceeds.
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(a) For the purpose of defraying the expenses of enforcing the provisions of this
Article -there shall be paid to the Secretary of Revenue a charge Tax. — An inspection
tax of one fourth of one cent (1/4 of lc) per gallon is levied upon all kerosene and
motor fuel. The inspection tax on motor fuel is due and payable to the Secretary of
Revenue at the same time that the per gallon excise tax on motor fuel is due and
payable under Articles 36 and 36A of Chapter 105 of the General Statutes. The
inspection tax on kerosene is payable monthly to the Secretary bv a distributor
required to be licensed under G.S. 119-16.2. A monthly report bv a distributor
required to be licensed under G.S. 119-16.2 is due bv the 20th of each month and
applies to kerosene received bv the distributor during the preceding month.
(b) Proceeds. - The proceeds of the inspection tax levied bv this section shall be
applied first to the costs of administering this Article and Subchapter V of Chapter
105 of the General Statutes. The remainder of the proceeds shall be credited on a
monthly basis to the Commercial Leaking Petroleum Underground Storage Tank
Cleanup Fund and the Noncommercial Leaking Petroleum Underground Storage
Tank Cleanup Fund. If the amount of revenue in the Noncommercial Fund at the
end of a month is at least five million dollars (S5.000.000^. one-half of the remainder
of the proceeds shall be credited to the Noncommercial Fund and one-half of the
remainder of the proceeds shall be credited to the Commercial Fund. If the amount
of revenue in the Noncommercial Fund at the end of a month is less than this
threshold amount, all of the remainder of the proceeds shall be credited to the
Noncommercial Fund. There shall, from time to time, be allotted by the Office of
State Budget and Management, from the inspection fees collected under authority of
the inspection lows of this State, such sums as may be necessary to administer and
effectively enforce the provisions of the inspection laws.
(c) No Local Tax. -- No county, city, or town shall impose any inspection charge,
tax, or fee, in the nature of the charge prescribed by this section, upon kerosene and
motor fuel. Distributors of kerosene licensed under G.S. 119 16.2 shall file reports as
required- by the Secretary of Revenue, by1 not later than the twentieth of each month,
and remit to the Secretary of Revenue one quarter of a cent (1/4 of lg) inspection fee
per gallon on all kerosene received during the preceding month."
Sec. 9. Section 17 of Chapter 652 of the 1989 Session Laws, as rewritten
by Section 31 of Chapter 799 of the 1989 Session Laws, is repealed.
Sec. 10. G.S. 143-215.87 reads as rewritten:
"§ 143-215.87. Oil or Other Hazardous Substances Pollution Protection Fund.
There is hereby established under the control and direction of the Department an
Oil or Other Hazardous Substances Pollution Protection Fund which shall be a
nonlapsing, revolving fund consisting of any moneys appropriated for such purpose
by the General Assembly or that shall be available to it from any other source. The
moneys shall be used to defray the expenses of any project or program for the
containment, collection, dispersal or removal of oil or other hazardous substances
discharged to the land or waters of this State, or discharged into waters outside the
territorial limits of the State which affect land and waters or related uses within the
State, or for restoration necessitated by the discharge. State: to assess damages for
injury to. destruction of. or loss of use of natural resources: and to develop and
implement plans for restoration, rehabilitation, replacement, or acquisition of the
equivalent of the natural resources injured bv the discharge. In addition to any
moneys that shall be appropriated or otherwise made available to it, the fund shall be
maintained by fees, charges, penalties or other moneys paid to or recovered by or on
behalf of the Department under the provisions of this Part. Any moneys paid to or
recovered by or on behalf of the Department as fees, charges, penalties or other
payments as damages authorized by this Part shall be paid to the Oil or Other
Hazardous Substances Pollution Protection Fund in an amount equal to the sums
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expended from the fund for the project or activity. Within the meaning of this
section, the word 'penalties' means civil penalties and does not include criminal fines
or penalties."
Sec. 11. The Secretary of Environment, Health, and Natural Resources
may waive reimbursement under subdivisions (1), (3), (3a), and (5) of G.S.
143-215.94G, as amended by Section 5 of this act, of all or any part of the costs of
developing and implementing a cleanup plan for a discharge or release of petroleum
from an underground storage tank that is owned or operated by a public hospital, as
defined by G.S. 131E-48. With respect to a discharge or release from a commercial
underground storage tank owned or operated by a public hospital that was discovered
and reported prior to 1 January 1993, the Secretary may grant a waiver under this
section without regard to whether the annual operating fee imposed by G.S.
143-215.94C was paid. In order to request a waiver under this section, a public
hospital shall make a specific written request to the Secretary setting out the reasons
for the requested waiver. The public hospital shall provide the Secretary with all
financial and other information necessary to determine whether a waiver should be
granted. The Secretary shall grant a waiver under this section only if the Secretary
finds that the public hospital has cooperated fully with the Department in developing
and implementing the cleanup plan and that reimbursement of cleanup costs would
render the public hospital insolvent or would otherwise result in an extreme hardship
to the hospital.
Sec. 12. Section 1 through Section 7 and Sections 10 and 12 of this act
are effective upon ratification. Sections 8 and 9 of this act become effective 1 July
1993. Section 11 of this act is effective upon ratification and expires 30 June 1995.
In the General Assembly read three times and ratified this the 19th dav of
July, 1993.
PENHiS A. WICKER
Dennis A. Wicker
President of the Senate
DAN'IFl RltlF iq
Daniel Blue, Jr.
Speaker of the House of Representatives
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NORTH CAROLINA
LEAKING PETROLEUM
UNDERGROUND STORAGE TANK
CLEANUP ACT OF 1988
Issued by
Division ok Envikonmental Management
Department ok Environment, Health, ani> Natukal Resouhces
Reprinted from General Statutes of North Carolina
and 1992 Cumulative Supplement
THE MIGII1E COMI'ANY
CiiAici^rrrKSvn.i.K, Viui;inia
1993
North Carolina Leaking Petroleum
Underground Storage Tank Cleanup Act
of 1988
Chapter 143.
State Departments, Institutions, and
Commissions.
Article 21 A.
Oil Pollution and Hazardous Sub-
stances Control.
Part 2A. Leaking Petroleum
Underground Storage Tunk
Cleanup.
Sec.
143-215.94A. Definitions.
14.1-216.94B. (Expires December 31,
1998) Commercial Leaking
Petroleum Underground
Storuge Tank Cleanup
Fund.
143*215.940. Expires December 31,
1998) Commercial leaking
petroleum underground
storage tank cleanup fees.
143-215.94D. (Expires Dircember 31,
1998) Noncommercial
Linking Petroleum Under-
ground Storage Tank
Cleanup Fund.
143-215.94E. (Expires December 31,
199H) Rights and obliga*
lions of the owner and oper-
utor.
143-215.9-lF. Limited amnesty.
M3-2ir>.94ti. (Kxpires Decemlier 31,
1998) Authority of the De-
Sec.
partment to engage in
cleanups; actions for fund
reimbursement.
143-215.94H. Financiol responsibility.
143-215.941. Insurance pools autho-
rized: requirements.
143-2I5.94J. (Expires December 31,
1998) Limitation of liabil-
ity of the SLale of North
Carolina.
143-215.94K. (Expires December 31.
1998) Penalties.
143-215.94L. (Expires December 31.
1998) Adoption of rules; ad-
ministrative procedure;
short title; miscellaneous
provisions.
143-215.94M. (Expires December 31,
199ft> KepoilA.
143-216.94N. (Kxpires December 31,
I9SHI Applicability.
143*215.940. (Expires December 31,
1998) Petroleum Under-
ground Storage Tank
Funds Council.
143-215.94P. (Expires December 31,
1998) Groundwater Protec-
tion Loan Fund.
143-215.94Q through I43-215.94S. |Re-
served. |
Article 21A.
Oil Pollution and Hazardous Substances Control.
Part 2A. Leaking Petroleum Underground Storage
Tank Cleanup.
§ 143-215.94A. Definitions.
Unless a different meaning is required by the context, the follow-
ing definitions shall apply throughout this Part:
(L) "Commercial Fund" means the Commercial Leaking Petro-
leum Underground Storage Tank Cleanup Fund estab-
lished pursuant to this Part.
3
-------
„-215.94A
I'KTROLKUM UNDKKCJKOUND STORAGE TANKS
(2) "Commercial underground storage Lank" means any one or
combination of tanks (including underground pipes con-
nected thereto) used to contain an accumulation of petro-
leum products, 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. The term
"commercial underground storage tank" does not include
any:
a. Farm or residential underground storage tank of 1,100
gallons or less capacity used for storing motor fuel for
noncommercial purposes;
b. Underground storage tank of 1,100 gallons or less ca-
pacity used for storing heating oil for consumptive use
on the premises where stored;
c. Underground storage tank of more than 1,100 gallon
capacity used for storing heating oil for consumptive
use on the premises where stored by four or fewer
households;
d. Septic tank;
e. Pipeline facility (including gulhering lines) regulated
under:
1. The Natural Gas Pipeline Safety Act of 1968 (49
U.S.C. § 1671 el seq.);
2. The Hazardous Liquid Pipeline Safety Act of 1979
(49 U.S.C. § 2001 et seq.); or
3. Any 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;
f. Surface impoundment, pit, pond, or lagoon;
g. Storm water or waste wuter collection system;
n. Flow-through process tank;
i. Liquid trap or associated gathering lines directly related
to oil or gas production and gathering operations; or
j. 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 sur-
face of the floor.
(3) "Council" means the North Carolina Petroleum Under-
ground Storage Tank Funds Council.
(4) "neating oil" means petroleum that is No. 1, No. 2, No. 4-
light, No. 4-heavy, No. 5-light, No. 5-heavy, or No. 6 tech-
nical 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 for the purpose
of heating.
(5) "Loun Fund" means the Groundwater Protection Loan
Fund.
(6) "Noncommercial Fund" means the Noncommercial Leaking
Petroleum Underground Storuge Tank Cleanup Fund es-
tablished pursuant to this Part.
(7) "Noncommercial underground storage tank" means any
one or combination of tanks (including underground pipes
connected thereto) used to contain an accumulation of pe-
troleum products, the volume of which (including the vol-
ume of the underground pipes connected thereto) is ten
4
PETKOLEUM UNUKKUHOUNI) STORAGE TANKS
§143-215.9-»
percent (10%) or more beneath the surface of the ground.
The term "noncommercial storage lank" does not include
any:
a. Commercial underground storage tanks;
b. Septic lank;
c. Pipeline facility (including gathering lines) regulated
under:
1. The Natural Gas Pipeline Safety Act of 1968 (49
U.S.C. § 1671 et seq.);
2. The Hazardous Liquid Pipeline Safety Act of 1979
(49 U.S.C. § 2001 et seq.); or
3. Any intrastate pipeline facility regulated under
Slate laws comparable Ui ihe provisions of the
Natural Gas Pipeline Safety Act of 1968 or the
Hazardous Liquid Pipeline Safety Act of 1979;
d. Surface impoundment, pit, pond, or lagoon;
e. Storm water or waste water collection system;
f. Flow-through process tank;
g. Liquid trap or associated gathering lines directly re-
lated to oil or gas production and gathering opera-
tions; or
h. Storage tank situated in an underground area (such as
a basement, cellar, mineworking, drift, shaft, or tun-
nel) if Ihe storage tank is situated upon or above the
surface of the floor.
(8) "Operator" means any person in control of, or having re-
sponsibility for, the operation of an underground storage
Lank.
(9) "Owner" means:
a. In the case of an underground storage lank in use on 8
November 1984, or brought into use alter thai date,
any person who owns an underground storage lank
used for the storage, use, or dispensing of petroleum
products; and
b. In the case of an underground storage tank in use before
8 November 1984, but no longer in use on or after that
dale, any person who owned such tank immediately
before the discontinuation of its use.
(10) "Petroleum" or "petroleum product" means crude oil or
any fraction thereof which is a liquid at standard condi-
tions of temperature and pressure (60 degrees Fahrenheit
and 14.7 pounds per square inch absolute), including any
such liquid which consists of a blend of petroleum and alco-
hol and which is intended for use as a motor fuel. The
terms "petroleum" and "petroleum product" do nol include
any hazardous substance as defined in Section 101(14) of
the Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980, Pub. L. No. 96-510, 94 Slat.
2767, 42 U.S.C. § 960K14) as amended; any substance reg-
ulated as a hazardous waste under Subtitle C of Title II of
the Resource Conservation and Recovery Act of 1976, Pub.
L. 94-580, 90 Stat. 2806, 42 U.S.C. § 6921 et seq., as
amended; or any mixture of petroleum or a petroleum
product containing any such hazardous substance or haz-
ardous waste in greater than de minimis quantities. (1987
5
-------
,3-215.94B
1'ETKOLEUM UNDERGROUND STORAGE TANKS
(Rug. Sess., 1988), c. 1035, s. I; 1989, c. 652, s. 3; 1991, c.
538, s. 1.)
Editor's Note. — Session l^aws 1989,
c. 652. s. 15 repealed Session Laws 1987
(Reg. Sess., 1988), c. 1035, a. 4, which
provided ihut the provisions of the act
(which enacted this section) us they re-
lated to any discharge or release of pe-
troleum from an underground storage
tank would apply only to discharges or
releases which were discovered or re-
ported on or after the effective date of
the act (June 30, 1988).
Session Laws 1987 (Reg. Sess., 1988),
c. 1035, s. 5, as amended by Session
Laws 1989, c. 652, s. 16, and by Session
Laws 1991, c. 538, s. 21, provided: "G.S.
143-215.94B through G.S. 143-215.94E.
G.S. 143-215.94G, and G.S. 143-2I5.94J
through G.S. 143-215.94P as enacted by
Section 1 of this act as amended, and
Section 2 of this act expire 31 December
1998. References to expired sections in
unexpired sections shul) be read to give
effect to the unexpired sections. If either
fund created by Section 1 of this act
would be obligated under the provisions
of this act with respect to any discharge
or release reported to the Department of
Natural Resources and Community De-
velopment I now Department of Environ-
ment, Health, and Natural Resourceslor
any successor department prior to the
expiration of this act, the respective
fund may continue to pay any costs in-
curred in accordance with this act to the
extent that funds remain. In the event
that funds remain in either fund after
the expiration of this act and after all
claimB and other obligations of both
funds hove been paid, such remaining
funds shall revert to the General Fund."
Effect of Amendments. — The 1991
amendment, effective July 3, 1991,
udded subdivision (3); redesignated for*
mur subdivision (2a) as subdivision (4);
added subdivision (5); and redesignated
former subdivisions (3) through (7) as
subdivisions (6) through (10).
Legal Periodicals. — For note,
"Spillover from the Exxon Vuldcz: North
Carolina's New Offshore Oil Spill Stat-
ute," see 68 N.C.L. Rev. 1214 (1990).
§ 143-215.94B. (Expires December 31, 1998) Com-
mercial Leaking Petroleum Under-
ground Storage Tank Cleanup Fund.
(a) There is established under the control and direction of the
Department the Commercial Leaking Petroleum Underground
Storage Tank Cleanup Fund. This Commercial Fund shall he a
nonreverting revolving fund consisting of any monies appropriated
for such purpose by the General Assembly or available to it from
grants, other monies paid to it or recovered on behalf of the Com-
mercial Fund, and fees paid pursuant to this Part.
(b) The Commercial Fund shall be used for the payment of the
following costs up to an aggregate maximum of one million dollars
($1,000,000) per occurrence resulting from a discharge or release of
a petroleum product from a commercial underground storage tank
that at the time the discharge or release is discovered or reported is
beneath the surface of the ground or has been removed within the
preceding 120 days:
(1) For discharges or releases discovered or reported between
30 June 1988 and 31 December 1991 inclusive, the cleanup
of environmental damage as required by G.S.
143-215.94E(a) in excess of fifty thousand dollars ($50,000)
per occurrence.
(2) For discharges or releases discovered on or after 1 January
1992 and reported between 1 January 1992 and 31 Decem-
ber 1993 inclusive, the cleanup of environmental damage
as required by G.S. 143-215.94E(a) in excess of twenty
thousand dollars ($20,000) per occurrence.
6
i'ETROLEUM UNDERGROUND STORAGE TANKS §143-215.S>
(3) For discharges or releases reported on or afLer 1 January
1994, the cleanup of environmental damage as required by
G.S. 143-215.94E(a) in excess of twenty thousand dollars
($20,000) if, prior to the discharge or release, the commer-
cial underground storage tank from which the discharge or
release occurred met the performance standards applicable
to tanks installed after 22 December 1988 or met the re-
quirements that existing underground storage tanks must
meet by 22 December 1998.
(4) For discharges or releases reported on or after 1 January
1994 from a commercial underground storage lank that
does not meet the standards in subdivision (3) of this sub-
section, sixty percent (60%) of the costs per occurrence of
the cleanup of environmental damage as required by G.S.
143-215.94E(a) that exceeds twenty thousand dollars
($20,000) buL is not more than one hundred fifty-seven
thousand five hundred dollars ($157,500) and one hundred
percent (100%) of the costs above this amount, up to the
limits established in this section.
(5) Compensation to third parties for bodily injury and prop-
erty damage in excess of one hundred thousand dollars
($100,000) per occurrence.
(6) Reimbursing the State for damages or other costs incurred
as a result of a loan from the Loan Fund. The per occur-
rence limit does not apply to reimbursements to the State
under this subdivision.
(c) The Commercial Fund is to be available on an occurrence
basis, without regard to number of occurrences associated with
tanks owned or operated by the same owner or operator.
(d) The Commercial Fund shall not be used for:
(1) Costs incurred as a result of a discharge or release from an
aboveground tank, aboveground pipe or fitting not con-
nected to an underground storage lank, or vehicle:
(2) The removal or replacement of any tank, pipe, fitting or
related equipment;
(3) Costs incurred as a result of a discharge or release of petro-
leum from a transmission pipeline;
(4) Costs intended to be paid by the Noncommercial Fund; or
(5) Costs associated with the administration of any under-
ground storage tank program other than the program ad-
ministered pursuant to this Part.
(c) The Commercial Fund shall be treated as a special trust fund
and shall be credited with interest by the Stale Treasurer pursuant
to G.S. 147-69.2 and G.S. 147-69.3. (1987 (Reg. Sess., 1988), c. 1035,
s. 1; 1989, c. 652, s. 4; 1991, c. 538, ss. 2, 3; 1991 (Reg. Sess., 1992),
c. 817, s. 1.)
Editor's Note. — Session Laws IUtt7
iReg. Sess., 1988), c. 1035, which en-
acted this section, in s. 5. us amended by
Session bws 19K9, c. 652, s. 16, and by
Session Laws 1991, c. 53d, s. 21, pro-
vides: "G.S. 143-215.94LJ through G.S.
143-2I5.94E, li.S. 143-215.940, and
G.S. 143-215.94J through G.S.
143-215.IMP as enacted by Section 1 of
this act as amended, and Section 2 of
this act expire 31 December 199b. Refer-
ences to expired sections in unexpired
sections shall be read to give effect to
the unexpired sections. If either fund
created by Suction I of this act would be
obligated under the provisions of this act
with respect to any discharge or release
reported to the Detriment of Natural
Resources and Community Development
Inow Department of Environment,
7
-------
215.94C
PETROLEUM UNDERGROUND STORAGE TANKS
Health, and Natural Resources! or any
successor department prior to the expi-
ration of this act, the respective fund
may continue to pay any cost* incurred
in accordance with this act to the extent
that funds remain. In the event that
funds remain in either fund after the ex-
piration of this act and after all claims
and other obligations of both funds have
been paid, such remaining funds shall
revert to the General Fund."
Effect of Amendments. — Session
Laws 1991, c. 538, a. 2, effective July 3,
1991, in subsecLion (b) added the lan-
guage beginning "tank thai at the time
the discharge" in the introductory lan-
guage, in subsection (1) added the lan-
guage beginning "For discharges or re-
leases" and ending "inclusive" and de-
leted "and" following "occurrence",
added subdivisions (2) through (4), re-
designated former subdivision (2) us
subdivision (5), and added subdivision
(6).
Session Laws 1991, c. 538, s. 3, effec-
tive January 1, 1992, inserted "removal
or" in subdivision (d)(2).
The 1991 (Reg. Sess., 1992) amend-
ment, eiTeclive on and ufter Junuary 1.
1992, in subsection (b) inserted "on or"
in subdivisions (2) and (4), and substi-
tuted "one hundred fifty-seven thousand
five hundred dollars ($157,500)" for "one
hundred thirty-seven five hundred dol-
lars ($137,500)" in subdivision (4).
§ 143-215.94C. (Expires December 31, 1998) Com-
mercial leaking petroleum under-
ground storage tank cleanup fees.
(a) The owner or operator of a commercial petroleum under-
ground storage tank shall pay to the Secretary for deposit into the
Commercial Fund an annual operating fee according to the follow-
ing schedule:
(1) For each petroleum commercial underground storage tank
of 3,500 gallons or less capacity — one hundred fifly dol-
lars ($150.00).
(2) For each petroleum commercial underground storage tank
of more than 3,500 gallon capacity — two hundred twenty-
five dollars ($225.00).
(b) The annual operating fee shall be determined on a calendar
year basis. For petroleum commercial underground storage tanks
in use on 1 January, the annual operating Fee due for that year
shall be as specified in subsection (a) of this section. For petroleum
commercial underground storage tanks which are first placed in
use in any year, the annual operating fee due for that year shall be
determined by multiplying one-twelfth O/12) of the amount specified
in subsection (a) of this section by the number of months remaining
in the calendar year. The annual operating fee shall be due and
payable on the first day of the month in accordance with a stag-
gered schedule established by the Department. The Department
shall implement a staggered schedule to the end that the total
amount of fees to be collected by the Department is approximately
the same each month. A person who owns or operates more than
one commercial petroleum underground storage tank may request
that the fee for all tanks be due at the same time. A person who
owns or operates 12 or more commercial petroleum storage tanks
may request that the total of all fees be paid in four equal payments
to be due on the first day of each calendar quarter.
(c) Beginning no later than sixty days before the first due date of
the annual operating fee imposed by this section, any person who
deposits a petroleum product in a commercial underground storage
tank that would be subject to the annual operating fee shall, at
least once in each calendar year during which such deposit of a
petroleum product is made, notify the owner or operator of the duty
8
PETROLEUM UNDERGROUND STORAGE TANKS
§143-215.94l
to pay the annual operating fee. The requirement to notify pursu-
ant to this subsection does not constitute a duty owed by the person
depositing a petroleum product in a commercial underground stor-
age tank to the owner or operator and the person depositing a petro-
leum product in an underground storage lank shall not incur any
liability to the owner or operator for failure to give notice of the
duty to pay the operating fee.
(d) Repealed by Session Laws 1991, c. 538, s. 3.1, efTective June
30, 1991.
. (e) An owner or operator of a commercial underground storage
tank who fails to pay a tank fee due under this section within 30
days of the date that the fee is due shall pay, in addition to the fee,
a late penalty of five dollars ($5.00) per day per commercial under-
ground storage tank, up to a maximum equal to the tank fee due.
(1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 5; 1991, c. 538,
ss. 3.1, 4, 5.)
Editor's Note. — Session Laws 1987
(Keg. Sess., 1988), c. 1035, which en-
acted this section, in s. 5, us amended by
Session Laws 1989, c. 652, s. 16, and by
Session Luws 1991, c. 538, s. 21, pro-
vided: "G.S. 143-215.94B through G.S.
143-215.94E, G.S. 143-215.94G, and
G.S. 143-215.94J through G.S.
143-215.94P as enacted by Section 1 of
this uct as umended, und Section 2 of
this uct expire 31 December 1998. Refer-
ences to expired sections in unexpired
sections shull be reud to give effect to
the unexpired sections. If either fund
created hy Section 1 of this act would be
obliguted under the provisions of this act
with respect to any discharge or release
reported to the Department of Nuturul
Resources und Community Development
I now Department of Environment,
Heullh, und Nuturul Kesourcesl or any
successor department prior to the expi-
ration of this uct, the respective fund
may continue to pay any costs incurred
in accordance with this act to the extent
that funds remain. In the event thut
funds remain in either fund after the ex-
pirution of this uct and ufter all claims
and other obligations of both funds have
been paid, such remaining funds shall
revert to the General Fund."
Session Luws 1989, c. 652, which
amended this section, in s. 18 provided
"The requirement to pay the annual op-
erating fee under G.S. 143-215.94C shall
not be suspended prior to 1 January
1991 regardless of the Commercial Fund
balance."
Effect of Amendments. — Session
Laws 1991, c. 538, s. 3.1, effective June
30, 1991, repealed subsection (d), relat-
ing to purposes for which the Commer-
cial Fund could not be used.
Session Laws 1991, c. 538, s. 4, effec-
tive January 1, 1992, in subsection (a)
substituted "one hundred dollars
($100.00)" for "forty-five dollars
($45.00)" in subdivision (1) and substi-
tuted "one hundred fifty dollars
($150.00)" for "seventy-five dollars
($75.00)" in subdivision (2) and added
subsection (e).
Session l^iws 1991, c. 538, s. 5, effec-
tive January 1, 1993, in subsection (a)
substituted "one hundred fifty dollars
($150.00)" for "one hundred dollurs
($100.00)" in subdivision (I) and substi-
tuted "two hundred twenty-five dollars
($225.00)" for "one hundred fifty dollars
($150.00)" in subdivision (2).
§ 143-215.94D. (Expires December 31, 1998) Non-
commercial Leaking Petroleum Under-
ground Storage Tank Cleanup Fund.
(a) There is established under the control and direction of the
Department the Noncommercial Leaking Petroleum Underground
Storage Tank Cleanup Fund. This Noncommercial Fund shall be a
nonreverting revolving fund consisting of any monies appropriated
for such purpose by the General Assembly or available to it from
9
-------
J-215.94D
PETROLEUM UNDERGROUND STORAGE TANKS
grants, or other monies paid to it or recovered on behalf of the
Noncommercial Fund.
(b) The Noncommercial Kund shall be used for the payment of
the costs set out in subsection (bl) of this section, up to an aggre-
gate maximum of one million dollars ($1,000,000) per occurrence
resulting from a discharge or release of a petroleum product from:
(1) Noncommercial underground storage tanks if the discharge
or release meets the minimum priority criteria for correc*
tive action established by the Department.
(2) Commercial underground storage tanks if the owner or op-
erator cannot be identified or fails to proceed with the
cleanup.
(3) Commercial underground storage tanks that were taken
out of operation prior to 1 January 1974 if, at the time the
discharge or release is discovered, neither the owner or
operator owns or leases the lands on which the tank is
located.
(4) Commercial underground storage tanks if the owner of the
commercial underground storage tank is the owner only as
a result of owning the land on which the commercial un-
derground storage tank is located, the owner did not know
or have reason to know that the underground storage tank
was located on the property, and the land was not trans-
ferred to the owner to avoid liability for the commercial
underground storage tank.
(bl) The Noncommercial Fund shall be used for the payment of
the costs of:
(1) The cleanup of environmental damage as required by G.S.
143-215.94E(a); and
(2) Compensation to third parties for bodily injury and prop-
erty damage in excess of one hundred thousand dollars
($100,000) per occurrence.
(3) Reimbursing the State for damages or other costs incurred
as a result of a loan from the Loan Fund. The per occur-
rence limit does not apply to reimbursements to the State
under this subdivision.
(b2) The Noncommercial Fund may be used by the Department
for the payment of costs necessary to render harmless any commer-
cial or noncommercial underground storage tank from which a dis-
charge or release has not occurred but which poses an imminent
hazard to the environment if the owner or operator cannot be iden-
tified or located, or if the owner or operator fails to take action to
render harmless the underground storage tank within 90 days after
having been notified of the imminent hazard posed by the under-
ground storage tank. The Secretary muy seek to recover the costs of
the action from the owner or operator as provided in G.S.
143-215.94G.
(c) The Noncommercial Fund is to be avuilable on an occurrence
basis, without regard to number of occurrences associated with
tanks owned or operated by the same owner or operator.
(d) The Noncommercial Fund shall not be used for:
(1) Costs incurred as a result of a discharge or release from an
aboveground tank, aboveground pipe or fitting not con-
nected to an underground storage tank, or veliicle;
(2) The removal or replacement of any tank, pipe, fitting or
related equipment;
10
HhTKOI.KUM UNDERGROUND STORAGE TANKS
§143-215.94E
13) Costs incurred as a result of u discharge or release of petro-
leum from a transmission pipeline;
(4) Costs intended to be paid for by the Commercial Fund; or
(5) Costs associated with the administration of any under-
ground storage tank program other than the program ad-
ministered pursuant to this Part.
(e) The Noncommercial Fund shall be treated as a special trust
fund and shall be credited with interest by the State Treasurer
pursuant to G.S. 147-69.2 and G.S. 147-69.3. (1987 (Reg. Sess.,
1988), c. 1035, s. 1; 1989, c. 652, s. 6; 1991, c. 538, s. 6; 1991 (Keg.
Sess., 1992), c. 890, s. 17.)
Editor's Note. — Session Laws 1987
(Keg. Se&*., 1988), c. 1035, which en*
acled thin section, in s. 5, us amended by
Session Laws 1989, c. ti52, s. 16. and by
Session Laws 1991, c. 538, a. 21, pro-
vides: "G.S. 143*215.94b through G.S.
143 215.94b:, G.S, 143-215.94G, und
G.S. 143-215.94J through G.S.
143-215.94P us enacted by Section 1 of
this act us amended, und Section 2 of
this act expire 31 December 1998. Refer-
ences to expired sections in unexpired
sections shall be read to give effect to
the unexpired ^ectioiu*. if either fund
created by Section 1 of this act would be
obligated under the provisionr of this act
wiLh respect to any discharge or release
reported to the Department of Natural
Resources and Community Development
(now Department of Environment,
Health, and Natural Resources! or any
successor department prior to the expi-
ration of this act, ihe respective fund
may continue lo pay any custs incurred
in Hccordance with this act lo the extent
that funds remain. In the event that
funds remain in either fund after ihe ex-
piration of this ucl und after all claims
and other obligation* of both funds have
been paid, such remaining funds shull
revert to Ihe General Fund."
Effect of Amendments. — The 1991
umendment, effective July 3, 1991, in
subsection (bt substituted "costs set out
in subsection (bl) of this section" for
"following costs" in the introductory lan-
guage, substituted the subdivision des-
ignations (1), (2). and (3) for the subdivi-
sion designations lil, (ii), and (iii), udded
the language beginning "if the dis-
charge" in subdivision (1), in subdivision
(2) substituted "if for "where" and de-
leted "and" following "cleanup", in sub*
division (3) substituted "thut" for
"which" and substituted "if" for "where",
und added subdivision (41; inserted the
subsection designation (bl>; in subsec-
tion
-------
§i43-215.94E
PETROLEUM UNDERGROUND STORAGE TANKS
payments from the Commercial Fund shall not exceed one million
dollars ($1,000,000) per discharge or release.
(bl) In the case of a discharge or release from a commercial un-
derground storage tank where the owner and operator cannot be
identified or located, or where the owner and operator fail to pro-
ceed as required by subsection (a) of this section, if the current
landowner of the land in which the commercial underground stor-
age tank is located notifies the Department in accordance with G.S.
143-215.85 and undertakes to collect and remove the discharge or
release and to restore the area affected in accordance with the re-
quirements of this Article and applicable federal and State laws,
regulations, and rules, the current landowner may elect to have the
Commercial Fund pay or reimburse the current landowner for any
costs described in subdivisions (1), (2), (3), and (4) of G.S.
143-215.94B(b) that exceed the amounts for which the owner or
operator is responsible under that subsection. The current land-
owner is not eligible for payment or reimbursement until the cur-
rent landowner has paid the costs described in subdivisions (1), (2),
(3), and (4) of G.S. 143-215.94B(b) for which the owner or operator
is responsible. Eligibility for reimbursement under this subsection
may be transferred from a current landowner who has paid the
costs described in subdivisions (1), (2), (3), and (4) of G.S.
143-215.94B(b) to a subsequent lundowner. The sum of payments
from the Commercial Fund and from all other sources shall not
exceed one million dollars ($1,000,000) per discharge or release.
This subsection shall not be construed to require a current land-
owner to cleanup a discharge or release of petroleum from an un-
derground storage tank for which the current landowner is not
otherwise responsible. This subsection does not alter any right,
duty, obligation, or liability of a current landowner, former land-
owner, subsequent landowner, owner, or operator under other pro-
visions of law. This subsection shall not be construed to limit the
authority of the Department to engage in a cleanup under this
Article or any other provision of law. In the event that un owner or
operator is subsequently identified or located, the Secretary shall
seek reimbursement as provided in G.S. 143-215.94G(d). The cur-
rent landowner shall submit documentation of all expenditures as
required by G.S. 143-215.94G(b).
(c) in the case of a discharge or release from a noncommercial
underground storage tank, the owner or operator may elect to have
the Noncommercial Fund pay or reimburse the owner or operator
for the costs described in G.S. 143-215.94D(b) up to a maximum of
one million dollars ($1,000,000) per discharge or release.
(d) In any case where the costs described in G.S. 143-215.94B(b)
or G.S. 143-215.94D(b) exceed one million dollars ($1,000,000), the
provisions of Article 21A of this Chapter or any other applicable
statute or common law regarding liability shall apply for the
amount in excess of one million dollars ($1,000,000). Nothing con-
tained in this Part shall limit or modify any liability that any party
may have pursuant to Article 21A of this Chapter, any other appli-
cable statute, or at common law.
(e) When the owner or operator pays the costs described in G.S.
143-215.94B(b) or G.S. 143-215.94D(b) resulting from a discharge
or release of petroleum from an underground storage tank, the
owner or operator may seek reimbursement from the appropriate
fund for any costs he may elect to have either the Commercial or
12
PETROLEUM UNDERGROUND STORAGE TANKS
§143-215.94*.
the Noncommercial Fund pay in accordance with subsections (b)
and (c) of this section. The Department shall reimburse the owner
or operator for all costs he may elect to have the appropriate fund
pay thut the Department determines to be reasonable and neces-
sary and for which appropriate documentation is submitted. The
Commission shall adopt rules governing reimbursement of neces-
sary and reasonable costs. An owner or operator whose claim for
reimbursement is denied may appeal a decision of the Department
as provided in Article 3 of Chapter 150B of the General Statutes. If
the owner or operator is eligible for reimbursement under this sec-
tion and the cleanup extends beyond a period of three months, the
owner or operator may apply to the Department for interim reim-
bursements to which he is entitled under this section on a quarterly
basis.
(0 The Department shall not reimburse any owner or operator
until the fund from which reimbursement will be made reaches one
million dollars ($1,000,000).
(g) No owner or operator shall be reimbursed pursuant to this
section, and the Department shall seek reimbursement of the ap-
propriate fund or of the Department for any monies disbursed from
the appropriate fund or expended by the Department if:
(1) The owner or operator has willfully violated any substan-
tive law, rule, or regulation applicable to underground
storage tanks and intended to prevent or mitigate dis-
charges or releases or to facilitate the early detection of
discharges or releases;
(2) The discnarge or release is the result of the owner's or oper-
ator's willful or wanton misconduct; or
(3) The owner or operator has failed to pay any annual tank
operating fee aue pursuant to G.S. 143-215.94C.
(h) Subdivision (1) of subsection (g) of this section shall not be
construed to limit the right of an owner or operator to contest no-
tices of violation or orders issued by the Department. (1987 (Reg.
Sess., 1988), c. 1035, s. 1; 1989, c. 652, s. 7; 1991, c. 538, ss. 7, 22;
1991 (Reg. Sess., 1992), c. 817, s. 2.)
Editor's Note. — Session Laws 1987
(Keg. Sess., 1988), c. 1035, which en*
acted this section, in s. 5. as amended by
Session Lawa 1989, c, 652, a. 16, an J by
Session Laws 1991. c. 538, s. 21, pro-
vides: "G.S. 143*215.94b through G.S.
143-215.94U. U.S. 143-215.94G, and
G.S. 143-215.94J through G.S.
143-215.94P as enacted by Section 1 of
this act as amended, and Section 2 of
this act expire 31 December 1998. Refer-
ences to expired sections in unexpired
sections shall be read to give effect to
the unexpired sections. If either fund
created by Sccliun 1 of this acl would be
obligated under the provisions of this acl
with respect to any discharge or release
reported to the Department of Nutural
Resourced and Community Development
or any successor department prior to the
expiration of this acl, the respective
fund may continue to pay any costs in-
curred in accordance with this act to the
extent thut funds remain. In the event
that funds remain in either fund afler
the expiration of this act and after all
claims and other obligations of both
funds have been paid, such remaining
funds shall revert to the General Fund."
Session Laws 1991, c. 538, which
amended this section, in s. 24 provides:
"The Environmental Management Com-
mission shall adopt rules governing re-
imbursement of necessary and reason-
able costs as required by G.S.
143-2l5.94E(e> as amended by Section 7
of this act. Rules governing reimburse-
ment of necessary and reasonable costs
shall become effective on or before 1
July 1992. To implement G,S.
143-215.94P as enacted hy Section 13 of
this acl, the Department of Environ-
ment,- Health, and Natural Resources
shall adopt lemporury or permanent
13
-------
§* .5.94F
PETROLEUM UNDERGROUND STORAGE TANKS
rules that are effective on or before 1
March 1992"
Effect of Amendments. — Session
Laws 1991, c. 538, s. 7, effective July 3,
1991, substituted the language begin-
ning "that exceed the amounts" for
"which exceed fifty thousand dollars
($50,000) for the cleanup of environmen-
tal damage and one hundred thousand
dollars ($100,000) for compensating
third parties for bodily injury and prop-
erty damage up to an aggregate maxi-
mum of one million dollare ($1,000,000)
per discharge or release" at the end of
the first sentence of subsection (b); in
subsection (e) substituted "thai" for
"which" in the second sentence and
added the third sentence; inserted "or
mitigate" in subdivision (g)(1); and
added subsection (h).
Session Laws 1991, c. 538, s. 22, effec-
tive July I, 1992, deleted "for which
prior approval was obtained and appro-
priate documentation was submitted,
and any other costs" following "appro-
priate fund pay" in the second sentence
of subsection (e).
The 1991 (Reg. Sess., 1992) amend-
ment, effective July 1, 1992, added sub-
section (bl).
§ 143-215.94F. Limited amnesty.
Any owner or operator who reports a suspected discharge or re-
lease from an underground storage tank prior to 1 October 1989
shall not be liable for any civil penalty tnat might otherwise be
imposed pursuant to G.S. 143-216.88A(a) for violations of G.S.
143-215.83(a) and G.S. 143-215.85. The limited amnesty provided
by this section shall not apply upon a finding by the Commission
that the discharge or release was the result of gross negligence or
an intentional act. (1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c.
652, s. 8.)
Editor's Note. — Session Laws 1987
(Reg. Sess., 1988), c. 1035, which en-
acted this section, in s. 5, as amended by
Session Laws 1989, c. 652, s. 16, and by
Session Laws 1991, c. 538, s. 21, pro-
vides: "G.S. 143-215.94B through G.S.
143-215.94E, G.S. 143-2I5.94G, and
G.S. 143-215.94J through G.S.
143-215.94P as enacted by Section 1 of
this act as amended, and Section 2 of
this act expire 31 December 1998. Refer-
ences to expired sections in unexpired
sections shall be read to give effect to
the unexpired sections. If either fund
created by Section 1 of this act would be
obligated under the provisions of this act
with respect to any discharge or release
reported to the Department of Natural
Resources and Community Development
{now Department of Environment,
Health, and Natural Resources] or any
successor department prior to the expi-
ration of this act, the respective fund
may continue to pay any costs incurred
in accordance with this act to the extent
that funds remain. In the event that
funds remain in either fund ufler the ex-
piration of this act and after all claims
and other obligations of both funds have
been paid, such remaining funds shall
revert to the General Fund."
§ 143-215.94G. (Expires December 31, 1998) Au-
thority of the Department to engage in
cleanups; actions for fund reimburse-
ment.
(a) The Department may use staff, equipment, or materials un-
der its control or provided by other cooperating federal, State, or
local agencies and to contract with any agent or contractor it deems
appropriate to develop and implement a cleanup plan and to pay
the costs authorized by G.S. 143-215.94D(b) from the Noncommer-
cial Fund whenever there is a discharge or release of petroleum
from any of the following:
(1) A noncommercial underground storage tank.
14
PETROLEUM UNDERGROUND STORAGE TANKS
§143-215.94.
(2) An underground storage tank whose owner or operator can-
not be identified or located.
(3) An underground storage tank whose owner or operator fails
to proceed as required by G.S. 143-215.94E(a).
(4) A commercial underground storage tank taken out of oper-
ation prior to 1 January 1974 if, when the discharge or
release is discovered, neither the owner nor operator owns
or leases the land on which the underground storage tank
is located.
(al) Every State agency shall provide to the Department to the
maximum extent feasible such stafT, equipment, and materials as
may be available and useful to the development and implementa-
tion of a cleanup program.
(b) Whenever the discharge or release of a petroleum product is
from a commercial underground storage tank, the Department may
supervise the cleanup of environmental damage required by G.S.
143-215.94E(a). If the owner or operator electa to have the Commer-
cial Fund reimburse or pay for any costs allowed under G.S.
143-215.94B(b), the Department shall require the owner or opera-
tor to submit documentation of all expenditures claimed for the
purposes of establishing that the owner or operator has spent the
amounts required to be paid by the owner or operator pursuant to
and in accordance with U.S. 143-215.94E(b). The Department shall
allow credit for all expenditures that the Department determines to
be reasonable and necessary. The Department may not pay for any
costs for which the Commercial Fund was established until the
owner or operator has paid the amounts specified in G.S.
143-215.94 E(b).
(c) The Secretary shall keep a record of all expenses incurred for
the services of State personnel and for the use of the State's equip-
ment and material.
(d) The Secretary shall seek reimbursement through any legal
means available, for:
(1) Any costs not authorized to be paid from either the Com-
mercial or the Noncommercial Fund;
(2) The amounts provided for in G.S. 143-215.94B(b) required
to be paid for by the owner or operator pursuant to G.S.
143-215.94E(b) where the owner or operator of a commer-
cial underground storage tank is later identified or located;
(3) The amounts provided for in G.S. 143-215.94B(b) required
to be paid for by the owner or operator pursuant to G.S.
143-215.94E(b) where the owner or operator of a commer-
cial underground storage tank failed to proceed as required
by G.S. 143-215.94E(a);
(4) Any funds due under G.S. 143-215.9412(g); and
(5) Any funds to which the State is entitled under any federal
program providing for the cleanup of petroleum discharges
or releases from underground storage tanks.
(e) In the event that a civil action is commenced to secure reim-
bursement pursuant to subdivisions (1) through (4) of subsection (d)
of this section, the Secretary may recover, in addition to any
amount due, the costs of the action, including but not limited to
reasonable attorney's fees and investigation expenses. Any monies
received or recovered as reimbursement shall be paid into the ap-
propriate fund or other source from which the expenditures were
made.
15
-------
215.94H
PETROLEUM UNDERGROUND STORAGE TANKS
(f) In the event that a recovery equal to or in excess of the
amounts required to be paid for by the owner or operator pursuant
to G.S. 143-215.94E(b) is recovered pursuant to subdivisions (2) and
(3) of subsection (d) of this section for the costs described in G.S.
143-215.94B(b), the Department shall transfer funds from the Com-
mercial Fund that would have been paid from the Commercial
Fund pursuant to G.S. 143-215.94B(b) if the owner or operator had
proceeded with the cleanup, but which were paid from tne Noncom-
mercial Fund, into the Noncommercial Fund. (1987 (Reg. Sess.,
1988), c. 1035, s. 1; 1989, c. 652. s. 9; 1991, c. 538, ss. 8, 23.)
Editor's Note. — Session Laws 1987
(Reg. Sess., 1988), c. 1035, which en-
acted this section, in 8. 5, aa amended by
Session Law* 1989, c. 652, s. 16, and by
Session Laws 1991, c. 538, s. 21, pro-
vides: "G.S. 143-215.94B through G.S.
143-215.94E, G.S. 143-215.94G. and
G.S. 143-215.94J through G.S.
143-215.94P aa enacted by Section 1 of
this act as amended, and Section 2 of
this act expire 31 December 1998. Refer-
ences to expired sections in unexpired
flections shall be read to give effect to
the unexpired sections. If either fund
created by Section 1 of this act would be
obligated under the provisions of this act
with respect to any discharge or release
reported to the Department of Natural
Resources and Community Development
I now Department of Environment,
Health, and Natural Resources! or any
successor department prior to the expi-
ration of this act, the respective fund
may continue to pay any costs incurred
in accordance with this act to the extent
that funds remain. In the event that
funds remain in either fund ufter the ex-
piration of this act and after all claims
and other obligations of both funds have
been paid, such remaining funds shall
revert to the General Fund."
Effect of Amendments. — Session
Laws 1991, c. 538. s. 8, effective July 3,
1991, rewrote subsection (a); inserted
the subsection designation (al); and in
subsection (b) substituted "may" for "is
authorized and empowered to" in the
first sentence, deleted "which are" pre-
ceding "claimed" in the second sentence,
and substituted "that" for "which" in the
third sentence.
Session taws 1991, c. 538, s. 23, effec-
tive July 1, 1992, deleted "for which
prior approval was obtained from the
Department and any other expendi-
tures" following "ull expenditures" in
the third sentence of subsection (b).
§ 143-215.94H. Financial responsibility.
The Department shall require each owner and operator of a pe-
troleum underground storage lank who is required to demonstrate
financial responsibility under rules promulgated by the United
States Environmental Protection Agency pursuant to 42 U.S.C.
§ 6991b(d) to maintain evidence of financial responsibility of not
less than the amounts required to be paid for by the owner or opera-
tor pursuant to G.S. 143-215.94E(b) per occurrence for costs de-
scribed in G.S. 143-215.94B(b) and G.S. 143-215.94D(b). Financial
responsibility may be established in accordance with rules adapted
by the Commission which shall provide that financial responsibility
may be established by either insurance, guarantee, surety bona,
letter of credit, qualification as a self-insurer, or any combination
thereof. The compliance date schedule for demonstrating financial
responsibility shall conform to the schedule adopted by the Envi-
ronmental Protection Agency. (1987 (Reg. Sess., 1988), c. 1035, s. 1;
1989, c: 652, s. 10.)
Editor's Note. — Session Laws 1987 Session l^aws 1991, c. 538, s. 21, pro-
(Keg. Sess., 1988), c. 1035, which en- vides: "G.S. 143-215.94B through G.S.
acted this section, in s. 5, as amended by 143-215.94E, G.S. 143-2I5.94G, and
Session Laws 1989, c. 662, a. 16, and by G.S. 143-215.94J through G.S.
16
PETROLEUM UNDERGROUND STORAGE TANKS
§143-215
143-215.94P as enacted by Section 1 of
this uct us amended, and Section 2 of
this act expire 31 December 1998. Refer-
ences to expired sections in unexpired
sections shall be read to give effect to
the unexpired sections. If either fund
created by Section 1 of this act would be
obligated under the provisions of this act
with respect to any discharge or release
reported to the Department of Natural
Resources and Community Development
(now Department of Environment,
Health, and Naturul Resources) or any
successor department prior to the expi*
ration of this act, the respective fund
may continue to pay any costs incurred
in accordance with this act to the extent
that funds remain. In the event that
funds remain in either fund after the ex-
piration of this act and after all claims
and other obligations of both funds have
been paid, such remaining funds shall
revert to the General Fund."
§ 143-215.941. Insurance pools authorized; require-
ments.
(a) As used in this section, "Commissioner" means the Commis-
sioner of Insurance of the State of North Carolina.
(b) Owners and operators of underground storage tanks may
demonstrate financial responsibility Dy establishing insurance
pools which provide insurance coverage to pool members in at least
the minimum amounts specified in G.S. 143-215.94H. Each such
pool shall be operated by a board of trustees consisting of at least
five persons who are elected or appointed officials of pool members.
The board of trustees of each pool shall:
(1) Establish terms and conditions of coverage within the pool,
including underwriting criteria, applicable deductible
levels, the maximum level of claims tnat the pool will self-
insure, and exclusions of coverage;
(2) Ensure that all valid claims are paid promptly;
(3) Take all necessary precautions to safeguard the assets of
the pool;
(4) Maintain minutes of its meetings and make those minutes
available to the Commissioner;
(5) Designate an administrator to carry out the policies estab-
lished by the board of trustees and to provide continual
management of the pool, and delineate in written minutes
of its meetings the areas of authority it delegates to the
pool's administrator;
(6) Establish the amount of insurance to be purchased by the
pool to provide coverage over and above the claims that are
not to be satisfied directly from the pool's resources;
(7) Establish the amount, if any, of aggregate excess insurance
coverage to be purchased and maintained in the event that
the pool's resources are exhausted in a given fiscal period;
and
(8) Establish guidelines for membership in the pool, including
the amount of money to be collected from each pool mem-
ber to form and fund the pool.
(c) The board of trustees may not:
(1) Extend credit to individual members for payment of a pre-
mium, except pursuant to payment plans approved by the
Commissioner; or
(2) Borrow any monies from the pool or in the name of the pool,
except in the ordinary course of business, without first ad-
vising the Commissioner of the nature and purpose of the
loan and obtaining prior approval from the Commissioner.
17
-------
.15.941 PETROLEUM UNDERGROUND STORAGE TANKS
(d) A contract or agreement made pursuant to this section must
contain provisions:
(1) For a system or program of loss control;
(2) For termination of membership including both:
a. Cancellation of individual membership in the pool by
the pool; and
b. Election by an individual member of the pool to termi-
nate its participation;
(3) That a pool or a terminating member must provide at least
90 days' written notice of cancellation or termination;
(4) Requiring the pool to pay all claims for which each member
incurs liability during each member's period of member-
ship, except:
a. Where a member has individually retained the risk;
b. Where the risk is not covered; or
c. For amounts of claims above the coverage provided by
the pool;
(5) For the maintenance of claim reserves equal to known in-
curred losses and loss adjustment expenses and to an esti-
mate of incurred but not reported losses;
(6) For compliance with any applicable federal requirements
regarding financial responsibility for underground storage
tanks;
(7) For a final accounting and settlement of the obligations of
or refunds to a terminating member to occur when all in-
curred claims are concluded, settled, or paid;
(8) That the pool may establish ofTices where necessary in this
State and employ necessary staff to carry out the purposes
of the pool;
(9) That the pool may retain legal counsel, actuaries, claims
adjusters, auditors, engineers, private consultants, and ad-
visors, and other persons as the board of trustees or the
administrator deems to be necessary;
(10) That the pool may make and alter bylaws and rules per-
taining to the exercise of its purpose and powers;
(11) That the pool may purchase, lease, or rent real and per-
sonal property it deems to be necessary; and
(12) That the pool may enter into financial services agree-
ments with financial institutions and that it may issue
checks in its own name.
(e) In the event that either the pool or an individual pool member
gives notice of an intent to cancel or terminate participation in the
pool as provided by subdivision (4) of subsection (d) of this section,
the pool shall so notify both the Commissioner and the Secretary
within five business days of the issuance or receipt of such notice by
the pool. In addition, the pool shall notify both the Commissioner
and the Secretary within five business days of the date such cancel-
lation or termination becomes effective, unless notice of cancella-
tion or termination is rescinded.
(f) The formation and operation of an insurance pool under this
section shall be subject to approval by the Commissioner who shall,
after notice and hearing, establish reasonable requirements and
rules for the approval and monitoring of such pools, including prior
approval of pool administrators and provisions for periodic exami-
nations of financial condition. The Commissioner may disapprove
an application for the formation of an insurance pool, and may
18
PETROLEUM UNDERGROUND STORAGE TANKS
§143-215.941
suspend or withdraw such approval whenever he finds that such
applicant or pool:
(1) lias refused to submit its Dooks, papers, accounts, or affairs
to the reasonable inspection of the Commissioner or his
representative;
(2) Has refused, or its officers, agents, or administrators have
refused, to furnish satisfactory evidence of its financial and
business standing or solvency;
(3) Is insolvent, or is in such condition that its further transac-
tion of business in this State is hazardous to its members
and creditors in this State and to the public;
(4) Has refused or neglected to pay a valid final judgment
against it within 60 days after its rendition;
(5) Has violated any law of this State or has violated or ex-
ceeded the powers granted by its members;
(6) Has failed to pay any taxes, fees, or charges imposed in this
State within 60 days afler they are due and payable, or
within 60 days afler final disposition or any legal contest
with respect to liability therefor; or
(7) Has been found insolvent by a court of any other state, by
the insurance regulator or other proper officer or agency of
any other state, and has been prohibited from doing busi-
ness in such state.
(g) Each pool shall be audited annually at the expense of the pool
by a certified public accounting firm, with a copy of the report
available to the governing body or chief executive officer of each
member of the pool and to the Commissioner. The board of trustees
of the pool shall obtain an appropriate actuarial evaluation of the
loss and loss adjustment expense reserves of the pool, including an
estimate of losses and loss adjustment expenses incurred but not
reported. The provisions of G.S. 58-2-130, 58-2-150, 58-2-155,
58-2-165, 58-2-180, 58-2-185, 58-2-190, 58-2-200, and 58-6-5 apply
to each pool and to persons that administer such pools. Annual
financial statements required by G.S. 58-2-165 shall be filed by
each pool within 60 days after the end of the pool's fiscal year. All
financial statements required by this section shall be prepared in
accordance with generally accepted statutory accounting principles.
(h) If, as a result of the annual audit or an examination by the
Commissioner, it appears that the assets of a pool are insufficient to
enable the pool to discharge its legal liabilities and other obliga-
tions, the Commissioner shall notify the administrator and the
board of trustees of the pool of the deficiency and his list of recom-
mendations to abate the deficiency, including a recommendation
not to add any new members until the deficiency is abated. If the
pool fails to comply with the recommendations within 30 days after
the date of the notice, the Commissioner may apply to the Superior
Court of Wake County for an order requiring the pool to abate the
deficiency and authorizing the Commissioner to appoint one or
more special deputy commissioners, counsel, clerks, or assistants to
oversee the implementation of the Court's order. The Commissioner
has all of the powers granted to him under Article 17A of General
Statute Chapter 58 relating to rehabilitation and liquidation of
insurers; and the provisions of that Article apply to this section to
the exLent they are not in conflict with this section. The compensa-
tion and expenses of such persons shall be fixed by the Commis-
19
-------
„3-215.94J
PETROLEUM UNDERGROUND STORAGE TANKS
sioner, subject to the approval of the Court, and shall be paid out of
the funds or assets of the pool.
(i) Each pool contract shall provide that the members of the pool
shall be assessed on a pro rata basis as calculated by the amount of
each member's average annual contribution in order to satisfy the
amount of any deficiency where a pool is determined to be insol-
vent, financially impaired, or is otherwise found to be unable to
discharge its legal liabilities and other obligations.
(j) In the event that the Commissioner finds that a pool is insol-
vent, financially impaired, or otherwise, unable to discharge its
legal liabilities or obligations, or if the Commissioner at any time
has reason to believe that any owner or operator is unable to dem-
onstrate financial responsibility as required by G.S. 143-215.94H
and rules adopted by the Commission as a result of the financial
condition of the pool or for any other reason, the Commissioner
shall so notify the Secretary.
(k) The provisions of Article 48 of Chapter 58 do not apply to any
risks retained by any pool. (1987 (Reg. Sess., 1988), c. 1035, s. 1;
1989, c. 652, s. 11.)
Editor's Note. — Session Laws 1987
(Reg. Seas., 1988), c. 1035, which en-
acted this section, in e. 5, as amended by
Session Laws 1989, c. 652, s. 16, and by
Session Laws 1991, c. 538, s. 21, pro-
vides: "G.S. 143-215.94B through G.S.
143-215.94E, G.S. 143-215.94G, and
G.S. 143-215.94J through G.S.
143-2I5.94P as enacted by Section 1 of
this act as amended, and Section 2 of
this act expire 31 December 1998. Refer-
ences to expired sections in unexpired
sections shall be read to give effect to
the unexpired sections. If either fund
created by Section 1 of this act would be
obligated under the provisions of this act
with respect to any discharge or release
reported to the Department of Natural
Resources and Community Development
I now Department of Environment,
Health, and Natural Resources! or any
successor department prior to the expi-
ration of this act, the respective fund
may continue to pay any coaU incurred
in accordance with this act to the extent
that funds remain. In the event that
funds remain in either fund after the ex*
piration of this art and after all claims
and other obligations of both funds have
been paid, such remaining funds shall
revert to the General Fund."
Section 58-2-130, referred to in this
section, was repealed by Session Laws
1991, c. 681, s, 3. See now 55 56-2-131 to
58-2-133.
Much of Article 17A of Chapter 58,
referred to in subsection (h) of this sec-
tion, was repealed by Session Laws
1989, c. 452, which also enacted an Arti-
cle 46 of Chapter 58, containing similar
provisions of those contained in the re-
pealed sections of Article 17A. Article 46
of Chapter 58 has been recodified as Ar-
ticle 30 of Chapter 58.
8 143-215.94J. (Expires December 31, 1998) Limita-
tion of liability of the State of North
Carolina.
(a) No claim filed against either the Commercial Fund or the
Noncommercial Fund shall be paid except from assets of the respec-
tive fund as provided for in this Part or as may otherwise be autho-
rized by law.
(b) Triis Piirt shall not be construed to obligate the General As-
sembly to muke any appropriation to implement the provisions of
this Part; nor shall it be construed to obligate the Secretary to take
any action pursuant to this Part for which funds are not available
from appropriations or otherwise.
(c) The Secretary may budget anticipated receipts as needed to
implement this Part.
20
PETROLEUM UNDERGROUND STORAGE TANKS
§143-215.b.-,
(d) Should the Secretary find that the Noncommercial Fund bal-
ance is insufficient to satisfy all claims and other obligations of the
Noncommercial Fund incurred pursuant to this Part, the Secretary
may transfer funds which would otherwise revert to the General
Fund to the Noncommercial Fund in order to meet such claims and
obligations.
(e) If at any time either fund balance is insufficient to pay all
valid claims against it, the claims shall be paid in full in the order
in which they are finally determined. The Secretary may retain not
more than five hundred thousand dollars ($500,000) in the Noncom-
mercial Fund as a contingency reserve and not apply the reserve to
the claims. The Department may use the contingency reserve to
conduct cleanups in accordance with G.S. 143-215.94G when an
imminent hazard poses & threat to human health or to significant
natural resources. (1987 (Reg. Sess., 1988), c. 1035, s. 1; 1991, c.
538, s. 9.)
Editor's Note. — Session Laws 1987
(Keg. Sess., 1986), c. 1035, s. 5, as
amended by Session Laws 1989, c. 652,
s. 16, and by Session Laws 1991, c. 538,
s. 21, provides: "G.S. 143-215.94B
through G.S. 143*215.94E, G.S. 143-
215.94G, and G.S. 143-215.94J through
G.S. 143-215.94P as enacted by Section
1 of this act as amended, and Section 2 of
this act expire 31 December 1998. Refer*
ences to expired sections in unexpired
elections shall be read to give efTect to
the unexpired sections. If either fund
created by Section 1 of this act would be
obligated under the provisions of this act
with respect to any discharge or release
reported to the Department of Natural
Resources and Community Development
Inow Department of Environment,
Health, and Natural Resources! or any
successor department prior to the expi-
ration of this act, the respective fund
may continue to pay any costs incurred
in accordance with this act to the extent
thut funds remain. In the event that
funds remain in either fund after the ex-
piration of this act and after all claims
and other obligations of both funds have
been paid, such remaining funds shall
revert to the General Fund."
Effect of Amendments. — The 1991
amendment, effective July 3, 1991, in
subsection (e) in the first sentence sub-
stituted "the claims" for "such claims"
and substituted "are" for "were", and
added the second and third sentences.
§ 143-215.94K. (Expires December 31, 1998) Penal-
ties.
The penalties provided in G.S. 143-215.102 shall apply to this
Part, provided that no penalty imposed under this Part shall exceed
five thousand dollars ($5,000). (1987 (Reg. Sess., 1988), c. 1035, a.
1.)
Editor's Note. — Session Lows 1987
(Keg. Sess., 1988), c. 1035, s. 5, as
amended by Session l^iws 1989, c. 652,
s. 16, and by Session Laws 1991, c. 538,
a. 21, provides: "G.S. 143-215.94D
through G.S. 143-215.94E, G.S. 143-
215.94G, and G.S. 143-215.94J through
G S. 143-215.94P as enacted by Section
1 of this act as amended, and Section 2 of
this act expire 31 December 1998. Refer-
ences to expired sections in unexpired
sections shall be read to give efTect to
the unexpired sections. If either fund
creuted by Section 1 of this act would be
obligated under the provisions of this act
with respect to any dischorge or release
reported to the Department of Nalurul
Resources and Community Development
(now Department of Environment,
Health, and Natural Resources! or any
successor department prior to the expi-
ration of this act, the respective fund
may continue to pay any costs incurred
in accordance with this act to the extent
that funds remain. In the event that
funds remain in either fund after the ex-
piration of this act and after all claims
and other obligations of both funds have
been paid, such remaining funds shall
revert to the General Fund."
21
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215.94L
PETROLEUM UNI ROUND STORAGE TANKS
§ 143-215.94L. (Expires December 31, 1998) Adop-
tion of rules; administrative procedure;
short title; miscellaneous provisions.
(a) The Commission may adopt rules necessary to implement the
provisions of this Part. Except as may be otherwise specifically
provided, the provisions of Chapter 150B of the General Statutes
apply to this Part.
(b) This Part shall be administered by the Department consistent
with the provisions of Title VI, § 601 of the Hazardous and Solid
Waste Amendments of 1984, Pub. L. No. 98-616, 42 U.S.C. § 6991
et seq., as amended.
(c) The provisions of this Part and of Part 2 of this Article are
intended to be complementary. This Part shall not be construed to
limit the liability under G.S. 143-215.84(a) of any person or to limit
the authority of the Department to take any action pursuant to G S
143-215.84(b).
(d) Th is Part shall be known and may be cited as the Leaking
Petroleum Underground Storage Tank Cleanup Act of 1988. (1987
(Reg. Sess., 1988), c. 1035, a. 1; 1991, c. 538, s. 10.)
Editor's Note. — Session Laws 1987
(Keg. Sesa., 1988), c. 1035. 0. 5, us
amended by Session Laws 1989, c. 652,
a. 16, and by Session Laws 1991, c. 538,
0. 21, provides: "G.S. 143-215.94 B
through G.S. I43-215.94E, G.S. 143-
215.94G, and G.S. 143-215.94J through
G.S. 143-215.94P us enacted by Section
1 of this act as amended, and Section 2 of
this act expire 31 December 1998. Refer-
ences to expired sections in unexpired
section* shall be read to give effect to
the unexpired sections. If either fund
created by Section 1 of this act would be
obligated under the provisions of this act
with respect to any discharge or release
reported to the Department of Natural
Resources and Community Development
I now Department of Environment,
Health, and Natural ResourcesJ or any
successor department prior to the expi-
ration of this act, the respective fund
may continue to pay any costs incurred
in accordance with this uct to the extent
thai funds remain. In the event that
funds remain in either fund after the ex-
piration of this act and after all claims
and other obligutions of both funds have
been paid, such remaining funds shull
revert to the General Fund."
Effect of Amendments. — The 1991
amendment, effective July 3, 1991, in-
serted "short title" in the catchline; in-
serted "of the General Statutes" in t>ub-
section (a); and added subsection (d).
§ 143-215.94M. (Expires December 31, 1998) Re-
ports.
(a) The Secretary shall present a semiannual report to the Joint
Legislative Commission on Governmental Operations and the En-
vironmental Review Commission which shall include at least the
following:
(1) A list of all discharges or releases of petroleum from under-
ground storage tanks;
(2) A list of all cleanups requiring State funding through the
Noncommercial Fund and a comprehensive budget to com-
plete such cleanups;
(3) A list of all cleanups undertaken by tank owners or opera-
tors and the status of these cleanups;
(4) A statement of receipts and disbursements for both funds;
(5) A statement of all claims against both funds including
claims paid, claims denied, pending claims, and antici-
pated claims, and any other obligations;
22
PETROLEUM UNDERGROUND STORAGE TANKS
§143-215.b_
(6) The adequacy of both funds to carry out the purposes of this
Part; and
(7) A statement of the condition of the Loan Fund and a sum-
mary of all activity under the Loan Fund.
(b) The semiannual reports required by this section shall be
made by the Secretary on 1 March and 1 September of each year
beginning 1 March 1992. (1987 (Reg. Sess., 1988), c. 1035, s. 1;
1989, c. 652, s. 12; 1991, c. 538, s. 11.)
Editor's Note. — Session Laws 1987
(Keg. Sess., 1988), c. 1035, which en-
acted this section, in s. 5, as amended by
Session Luws 1989, c. 652, s. 16, and by
Session Laws 1991, c. 538, s. 21, pro-
vides: "G.S. 143-215.94B through G.S.
143-215.94E. G.S. 143-215.94G, and
G.S. 143-215.94J through G.S.
143-215.94P us enacted by Section 1 of
this uct as amended, and Section 2 of
this act expire 31 December 1998. Refer-
ences to expired sections in unexpired
sections shall be read to give effect to
the unexpired sections. If either fund
created by Section 1 of this act would be
obligated under the provisions of this uct
with respect to any discharge or release
reported to the Department of Natural
Resources and Community Development
|now Department of Environment,
Health, and Natural Resources! or any
successor department prior to the expi-
ration of this act, the respective fund
may continue to pay any costs incurred
in accordance with this act to the extent
that funds remain. In the event that
funds remain in either fund after the ex-
piration of this act and ufter all claims
and other obligations of both funds have
been paid, such remaining funds shall
revert to the General Kund."
Effect of Amendments. — The 1991
amendment, effective July 3, 1991, de-
leted "Annual" preceding "reports" in
the catchline; in subsection (a) in the in-
troductory language substituted "a
semiannual" for "un annual" and substi-
tuted "Joint Legislative Commission on
Governmental Operations and the Envi-
ronmental Review Commission" for
"General Assembly", deleted "and" fol-
lowing "obligations" in subdivision (5),
added "and" at the end of subdivision
(6), and added subdivision (7); und, in
subsection (b), substituted "semiannual"
for "annual", substituted "1 Match and 1
September" for "1 January", und substi-
tuted "1 March 1992" for "1 January
1990."
§ 143-215.94N. (Expires December 31, 1998) Appli-
cability.
(a) The provisions of this Part as they relate to costs paid for by
the Commercial Fund apply only to discharges or releases which
are discovered or reported on or after 30 June 1988.
(b) The provisions of this Part as they relate to costs paid for by
the Noncommercial Fund apply to discharges or releases without
regard to the date discovered or reported; however, costs sought
pursuant to G.S. 143-215.94G(d)(l), (2), (3), and (4) shall he for the
full amount of the costs paid for from the Noncommercial Fund und
shall not be limited pursuant to G.S. 143-215.94E(b) for discharges
or releases from commercial underground storage tanks discovered
or reported on or before 30 June 1988. (1989, c. 652, s. 13.)
Editor'^ Note. — Session Laws 1989,
c. 652, s. 13 made this section effective
upon ratification. The act wus ratified
July 15, 1989.
Session Laws 1987 .y4J
through G.S. 143-215.94lJ us enacted by
Section I ut' this act as amended, and
Section 2 of lliis act expire 31 December
1998. References to expired sections in
unexpired sections shall l»e read to give
effect to the unexpired sections. If either
fund created by Section I of this acl
would be obligated under the provisions
23
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215.940
PETROLEUM UNDERGROUND STORAGE TANKS
of this act with respecl to any discharge
or release reported to the Department
Natural Resources and Community De-
velopment or any successor department
prior to the expiration of this act, the
respective fund may continue to pay any
costs incurred in accordance with this
act to the extent that funds remain. In
the event that funds remain in either
fund after the expiration of this act and
after all claims and other obligations of
both funds have been paid, such remain-
ing funds shall revert to the General
Fund."
§ 143-215.940. (Expires December 31, 1998) Petro-
leum Underground Storage Tank
Funds Council.
(a) The North Carolina Petroleum Underground Storage Tank
Funds Council is created. The Council shall be composed of 11
members as follows:
(1) An employee of the Department who is not employed by the
section of the Division of Environmental Management re-
sponsible for the administration of the underground stor-
age tank cleanup program who shall be appointed by the
Secretary and who shall serve at the pleasure of the Secre-
tary.
(2) Five members appointed by the General Assembly upon the
recommendation of the President Pro Tempore of the Sen-
ate as follows:
a. One who shall, at the time of appointment, be actively
connected with a petroleum refining company or an
organization representing petroleum refining compa-
nies.
b. One who shall, at the time of appointment, be actively
connected with a petroleum marketer or an organiza-
tion representing petroleum marketers.
c. One who shall, at the time of appointment, be actively
connected with an environmental insurance carrier or
an organization representing environmental insur-
ance carriers.
d. One who shall, at the time of appointment, be actively
connected with a commercial lending institution or an
organization representing commercial lending institu-
tions.
e. One who shall, at the time of appointment, be actively
engaged in farming and the owner of a noncommercial
petroleum underground storage tank or actively con-
nected with an organization representing farmers.
(3) Five members appointed by the General Assembly upon the
recommendation of the Speaker of the House of Represen-
tatives as follows:
a. One who shall, at the lime of appointment, be an owner
or operator of a convenience store that markets petro-
leum products or is actively connected with an organi-
zation representing convenience store owners or oper-
ators.
b. One who shall, at the time of appointment, be a motor
fuel service station dealer or actively connected with
an organization representing motor fuel service sta-
tion dealers.
24
PETROLEUM UNDERGROUND STORAGE TANKS
§143-210.S4U
c. One who shall, at the time of appointment, be actively
connected with an environmental advocacy organiza-
tion.
d. One who shall, at the time of appointment, have special
training and experience in the remediation of ground-
water contamination resulting from leaking petro-
leum underground storage tanks.
e. One who shall, at the time of appointment, be the owner
of a noncommercial petroleum underground storage
tank and not eligible for appointment under subdivi-
sions (1), (2)a. through (2)d., or (3)a. through (3)d. of
this subsection.
(bj The members of the Council shall elect a chairman and a
vice-chairman.
(c) All appointments made by the General Assembly shall be for
a term of two years. Terms shall expire on 30 June except that
members shall serve until their successors are appointed and duly
qualified as provided in G.S. 128-7. The General Assembly shall
have the power to remove, in accordance with G.S. 143B-13, any
member appointed by the General Assembly.
(d) The Secretary shall provide sta(T assistance to the Council
from the agency responsible for administration of the underground
storage tank cleanup program.
(e) Members of the Council who are not State employees shall be
reimbursed for their expenses in accordance with G.S. 138-5. Mem-
bers of the Council who are State employees shall be reimbursed for
their expenses in accordance with G.S. 138-6.
(f) The Council shall meet upon the call of the Chairman or a
majority of its members. A majority of its members shall constitute
a quorum for the transaction of business.
(g) The Council shall:
(1) Review the administration of the Commercial Fund, the
Noncommercial Fund, and the Loan Fund.
(2) Advise the Secretary and the Commission on any matter
relating to the effective and efficient implementation of
this Part.
(3) Advise the Secretary on the adequacy of the funds to carry
out the purposes of this Part.
(4) Recommend rules, in accordance with generally accepted
standards prevailing among commercial lending institu-
tions, for use by the Department in determining eligibility
for loans, interest rates, terms, and conditions applicable
to loans, and in managing the Loan Fund.
(5) Recommend rules and comment on proposed rules govern-
ing reimbursement of necessary and reasonable costs un-
der G.S. 143-215.94E(e). (1991, c. 538, a. 12; 1991 (Reg.
Sess., 1992), c. 817, s. 3.)
Editor'v Note. — Ses&ion Laws 1991, G.S. 143-215.94G and G.S. 143-215.94J
c. 538, a. 25 made this section effective through G S. 143-'215.94f as enacted by
upon ratification. This section was rati- Section 1 of this act as amended, and
Tied July 3, 1991. Section 2 of this act expire 31 December
Session Uiws 1987 iRe«. Sess., 198B), 199*1. References to expired sections and
c. 1035, s. 5, as amended by Session unexpired sections shall be read to give
Laws 1989, c. 652, s. 16, and by Session effect to the unexpired sections. If either
Laws 1991. c. 538. s. 21. provides: "G.S. fund of this act would be obligated under
143-215.94U through G.S. 143-215.94E, the provisions of this act with respect to
25
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43-215.94P
PETROLEUM UNDERGROUND STORAGE TANKS
uny discharge or relea.sc reported lo Lhe
Department Natural Resources and
Community Development or any succea-
bor deportment prior to the expiration of
this act, the respective fund may con*
tinue to pay any costs incurred in accor-
dunce with this act lo Che extent that
funds remain. In the event that funda
remain in cither fund after the expira-
tion of this net and after all claims and
other obligations of both funda have
been paid, such remaining funda ahall
revert to the General Fund."
Session Laws 1991 (Reg. Sees., 1992),
c. 817, which amended this section, in s.
4 provides: "Initial appointments to the
North Carolina Petroleum Underground
Storage Tank Funds Council to lilt posi-
tions that are added by this act shall be
far one-year terms expiring 30 June
1993."
Effect of Amendments. — The 1991
(Reg. Sesa., 1992) umendment, effective
July 1, 1992, in subsection lu) suInti-
tuled "11 members" for "nine munthcrb"
in the second sentence of the introduc-
tory paragraph, and in subdivisions 12)
and (3) substituted "Five members" for
"Four members" in the introductory
paragraphs, and added subdivisions Cdte
and (3)e.
§ 143-215.94P. (Expires December 31, 1998)
Groundwater Protection Loan Fund.
(a) There is established under the control and direction of the
Department the Groundwater Protection Loan Fund. This Loan
Fund shall be a nonreverting revolving fund consisting of any mon-
ies appropriated to it by the General Assembly or available to it
from grants, and other monies paid to it or recovered on behalf of
the Loan Fund. The Loan Fund shall be credited with interest on
the Loan Fund by the State Treasurer pursuant to G.S. 147-69.2
and G.S. 147-69.3.
(bj The Loan Fund shall be used to provide loons to the owners of
commercial petroleum underground storage tanks who are unable
to secure conventional loans to upgrade or replace commercial un-
derground storage tanks in use on 1 July 1991 so as to meet the
performance standards applicable to tanks installed after 22 De-
cember 1988 or the requirements that existing underground stor-
age tanks must meet by 22 December 1998. All applications for
loans under this section must be received by the Department prior
to 1 January 1995.
(c) Using generally accepted standards prevailing among com-
mercial lending institutions, the Department shall adopt rules for
use in managing the Loan Fund. The Department Bhall administer
the loan program through existing commercial lending institutions.
In the event thut the Department is unable to arrange for the ad-
ministration of the loan program through existing commerical in-
stitutions in all or any part of the State, the Department may ad-
minister the loan program through the Office of State Budget Man-
agement. Each commercial institution or agency that administers
any part of the loan program shall collect all charges for securing
and administering each loan, including but not limited to applica-
tion fees, recording costs, collection costs, and attorneys' fees from
the borrower. Receipt of a loan from the Loan Fund is not a right,
duty, or privilege; therefore, Article 3 of Chapter 150B of the Gen-
eral Statutes does not apply to the grant or denial of a loan from the
Loan Fund.
(d) Funds received in repayment of loans made from the Loan
Fund shall be deposited into the Loan Fund until the proceeds of all
approved loans are disbursed to the borrowers. Thereafter, funds
received in repayment of loans made from the Loan Fund and any
26
IM-.THUl.KUM UNUKlUiKOUND STUIIACK TANKS
S143-215.94S
other funds remaining in the Loan Fund shall be deposited in the
Commercial Fund.
(el In the event of a delaull on a loan from the Loan Fund or a
violation of a loan agreement, the Secretary may request the Attor-
ney General to bring a civil action for collection of the amount owed
or other appropriate relief. An action shall be filed in the superior
court of the county where the loan recipient resides, where the loan
recipient does business, or where the tanks replaced or upgraded by
the loan are located. In an action, the Attorney General may re-
cover all costs of litigation, including attorneys' fees.
(f) If the State incurs liability in extending credit from the Loan
Fund and, as a result of the liability, the State is ordered to pay or,
as part of a settlement agreement, agrees to pay damages or other
costs, the Slate shall seek reimbursement for the amount of the
damages or other costs from the following sources in the order
listed:
(1) Any funds to which the Slate is entitled under any federal
program providing for Lhe cleanup of petroleum discharges
or releases from underground storage tanks, including but
not limited to the leaking Underground Storage Tank
Trust Fund established pursuant to 26 U.S.C. § 4081 and
42 U.S.C. § 6991b(h).
(2) The Noncommercial Fund.
(3) The Commercial Fund. (1991, c. 538, s. 13.)
X
D
o
5S
V
2
Editor's Note. — Session Luws 1991,
c. 538, s. 25 made this section effective
upon ratification. The act was ratified
July 3, 1991.
Session Ijjws 1987 (Kef. Sess., 1988),
c. 11)35, s. 5, as amended by Session
Laws 1989, c. 652, b. 16, and by Session
Laws 1991, c. 538, s. 21, provides: "U.S.
143-215.9-114 through G.S. M3-2I5.94E,
G.S. 143-215.94G and G.S. 143-215,94J
through G.S. 143-215.94P as enacted by
Section 1 of this act us amended, and
Section 2 of this act expire 31 Decemlier
1998. References lo expired sections and
unexpired sections shall be read to give
effect lo the unexpired sections. If either
fund created by Section I of this act
would l*e obligated under the provisions
of this net with respect lo any discharge
or release reported lo the Department
Nalurul Resources und Community De-
velopment or any successor department
prior to the expiration of this act, the
respective fund inuy continue to puy any
costs incurred in uccurdunce with this
act to the exlenL that funds remain. In
the event thai funds remain in either
fund after the expiration of this act und
ufter all claims and other obligations of
both funds have been paid, such remain-
ing funds shall revert lo the General
Fund."
Session Laws 1991, c. 538, which en-
ucted this section, in s. 24 provides: 'The
Environmental Management Commis-
sion shall adopt rules governing reim-
bursement of necessary und reasonable
costs uk required by U.S. 143-215.94Ele)
as amended hy Section 7 of this act.
Rules governing reimbursement of nec-
essary and reasonable costs shall be-
come elective on or before 1 July 1992.
To implement U.S. 143-215.941* us en-
acted by Section 13 of this act, the De-
partment of Environment, Health, and
Nalurul Resources shall adopt tempo-
rary or permunenl rules that are ellec-
live on or before I March 1992."
§§ 143-215.94Q through 143-215.94S: Reserved lor future
codification purposes.
5037
27
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1
SUBCHAPTER 15A-2L
GROUNDWATER CLASSIFICATION AND STANDARDS
See
15A-2L.01. GENERAL CONSIDERATIONS.
15A-2L.02. CLASSIFICATIONS AND GROUNDWATER QUALITY STANDARDS.
15A-2L.03. ASSIGNMENT OF UNDERGROUND WATER CLASSIFICATIONS.
15A-2L.01. GENERAL CONSIDERATIONS
Rule
15A-2L.0101. AUTHORIZATION.
15A-2L.0102. DEFINITIONS.
15A-2L.0103. POLICY.
15A-2L.0104. RESTRICTED DESIGNATION (RS).
15A-2L.0105. ADOPTION BY REFERENCE.
15A-2L.0106. CORRECTIVE ACTION.
15A-2L.0107. COMPLIANCE BOUNDARY.
15A-2L.0108. REVIEW BOUNDARY.
15A-2L.0109. DELEGATION.
15A-2L.0110. MONITORING.
15A-2L.0111. REPORTS.
15A-2L.0112. ANALYTICAL PROCEDURES.
15A-2L.0113. VARIANCE.
15A-2L.0114. NOTIFICATION REQUIREMENTS.
15A-2L.0101. AUTHORIZATION
(a) N.C. General Statute 143-214.1 directs that the Commission develop and adopt after
proper study a series of classifications and standards which will be appropriate for the purpose of
classifying each of the waters of the state in such a way as to promote the policy and purposes of
the act. Pursuant to this statute, the rules in this Subchapter establish a series of classifications
and water quality standards applicable to the groundwaters of the state.
(b) These rules are applicable to all activities or actions, intentional or accidental, which
contribute to the degradation of groundwater quality, regardless of any permit issued by a
governmental agency authorizing such action or activity except an innocent landowner who is a
bona fide purchaser of property which contains a source of groundwater contamination, who
purchased such property without knowledge or a reasonable basis for knowing that groundwater
contamination had occurred, or a person whose interest or ownership in the property is based or
derived from a security interest in the property, shall not be considered a responsible party.
Statutory Authority G.S. 143-214.1; 143-214.2; 143-215.3(a)( 1); 143B-282;
Eff. June 10, 1979; Amended Eff. August 1, 1989; July 1, 1988; September 1, 1984;
December 30, 1983.
15A-2L.0102. DEFINITIONS
-------
2
The definition of any word or phrase used in these Rules shall be the same as given in G.S.
143-212 and G.S. 143-213 except that the following words and phrases shall have the following
meanings:
(1) "Bedrock" means any consolidated rock encountered in the place in which it was formed
or deposited and which cannot be readily excavated without the use of explosives or power
equipment.
(2) "Commission" means the Environmental Management Commission as organized under
G.S. 143B.
(3) "Compliance boundary" means a boundary around a disposal system at and beyond which
groundwater quality standards may not be exceeded and only applies to facilities which have
received a permit issued under the authority of G.S. 143-215.1 or G.S. 130A.
(4) "Contaminant" means any substance occurring in groundwater in concentrations which
exceed the groundwater quality standards specified in Rule .0202 of this Subchapter.
(5) "Corrective action plan" means a plan for eliminating sources of groundwater
contamination or for achieving groundwater quality restoration or both.
(6) "Director" means Director of the Division of Environmental Management.
(7) "Division" means the Division of Environmental Management.
(8) "Exposure pathway" means a course taken by a contaminant by way of a transport
medium after its release to the environment.
(9) "Free product" means a non-aqueous phase liquid which may be present within the
saturated zone or in surface water.
(10) "Fresh groundwaters" means those groundwaters having a chloride concentration equal
to or less than 250 milligrams per liter.
(11) "Groundwaters" means those waters occurring in the subsurface under saturated
conditions.
(12) "Hazardous substance" means any substance as defined by Section 101(14) of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA).
(13) "Licensed geologist" means a person who has been duly licensed as a geologist in
accordance with the requirements of G.S. 89E.
(14) "Natural remediation" means those natural processes acting to restore groundwater
quality, including dilution, filtration, sorption, ion-exchange, chemical transformation and
biodegradation.
(15) "Practical Quantitation Limit" means the lowest concentration of a given material that
can be reliably achieved among laboratories within specified limits of precision and accuracy by
a given analytical method during routine laboratory analysis.
(16) "Natural conditions" means the physical, biological, chemical and radiological
conditions which occur naturally.
(17) "Potable waters" means those waters suitable for drinking by humans.
-------
3
(18) "Professional Engineer" means a person who has been duly registered and licensed as a
professional engineer in accordance with the requirements of G.S. 89C.
(19) "Receptor" means any human, plant, animal, or structure which is, or has the potential to
be, adversely effected by the release or migration of contaminants. Any well constructed for the
purpose of monitoring groundwater and contaminant concentrations shall not be considered a
receptor.
(20) "Review boundary" means a boundary around a permitted disposal facility, midway
between a waste boundary and a compliance boundary at which groundwater monitoring is
required.
(21) "Saline groundwaters" means those groundwaters having a chloride concentration of
more than 250 mg/1.
(22) "Saturated zone" means that part of the subsurface below the water table in which all the
interconnected voids are filled with water under pressure at or greater than atmospheric. It does
not include the capillary fringe.
(23) "Standards" means groundwater quality standards as specified in Rule .0202 of this
Subchapter.
(24) "Suitable for drinking" means a quality of water which does not contain substances in
concentrations which, either singularly or in combination if ingested into the human body, may
cause death, disease, behavioral abnormalities, congenital defects, genetic mutations, or result in
an incremental lifetime cancer risk in excess of 1x10-6, or render the water unacceptable due to
aesthetic qualities, including taste, odor or appearance.
(25) "Time of travel" means the time required for contaminants in groundwater to move a
unit distance.
(26) "Waste boundary" means the perimeter of the permitted waste disposal area.
(27) "Water table" means the surface of the saturated zone below which all interconnected
voids are filled with water and at which the pressure is atmospheric.
. Statutory Authority G.S. 143-214.1; 143-215; 143B-282;
Eff. June 10, 1979. Amended Eff. October 1, 1993; August 1, 1989; July 1, 1988; March 1,
1985.
15A-2L.0103. POLICY
(a) The rules established in this Subchapter are intended to maintain and preserve the quality
of the groundwaters, prevent and abate pollution and contamination of the waters of the state,
protect public health, and permit management of the groundwaters for their best usage by the
citizens of North Carolina. It is the policy of the Commission that the best usage of the
groundwaters of the state is as a source of drinking water. These groundwaters generally are a
potable source of drinking water without the necessity of significant treatment. It is the intent of
these Rules to protect the overall high quality of North Carolina's groundwaters to the level
established by the standards and to enhance and restore the quality of degraded groundwaters
where feasible and necessary to protect human health and the environment, or to ensure their
suitability as a future source of drinking water.
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(b) It is the intention of the Commission to protect all groundwaters to a level of quality at
least as high as that required under the standards established in Rule .0202 of this Subchapter. In
keeping with the policy of the Commission to protect, maintain, and enhance groundwater
quality within the State of North Carolina, the Commission will not approve any disposal system
subject to the provisions of G.S. 143-215.1 which would result in:
(1) the significant degradation of groundwaters which have existing quality that is better than
the assigned standard, unless such degradation is found to be in the best interests of the citizens
of North Carolina based upon the projected economic benefits of the facility and a determination
that public health will be protected, or
(2) a violation of a groundwater quality standard beyond a designated compliance boundary,
or
(3) the impairment of existing groundwater uses or increased risk to the health or safety of
the public due to the operation of a waste disposal system.
(c) Violations of standards resulting from groundwater withdrawals which are in compliance
with water use permits issued pursuant to G.S. 143-215.15, shall not be subject to the corrective
action requirements of Rule .0106 of this Subchapter.
(d) No person shall conduct or cause to be conducted, any activity which causes the
concentration of any substance to exceed that specified in Rule .0202 of this Subchapter, except
as authorized by the rules of this Subchapter.
(e) Work that is within the scope of the practice of geology and engineering, performed
pursuant to the requirements of this Subchapter, which involves site assessment, the
interpretation of subsurface geologic conditions, preparation of conceptual corrective action
plans or any work requiring detailed technical knowledge of site conditions which is submitted to
the Director, shall be performed by persons, firms or professional corporations who are duly
licensed to offer geological or engineering services by the appropriate occupational licensing
board or are exempted from such licensing by G.S. 89E-6. Work which involves design of
remedial systems or specialized construction techniques shall be performed by persons, firms or
professional corporations who are duly licensed to offer engineering services. Corporations that
are authorized by law to perform engineering or geological services and are exempt from the
Professional Corporation Act, G.S. 55B, may perform these services.
Statutory Authority G.S. 143-214; 143-214.1; 143-214.2; 143-215.3(e); 143-215.3(a)(1);
143B-282;
Eff. June 10, 1979; Amended Eff. August 1, 1989; July 1, 1988; September 1, 1984;
December 30, 1983; RRC Objection Eff. September 17, 1993, due to lack of necessity for
Paragraph (e); Amended Eff. November 4, 1993.
15A-2L.0104. RESTRICTED DESIGNATION (RS)
(a) The RS designation serves as a warning that groundwater so designated may not be
suitable for use as a drinking water supply without treatment. The designation is temporary and
will be removed by the Director upon a determination that the quality of the groundwater so
designated has been restored to the level of the applicable standards or when the groundwaters
have been reclassified by the Commission. The Director is authorized to designate GA or GSA
groundwaters as RS under any of the following circumstances:
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(1) Where, as a result of man's activities, groundwaters have been contaminated and the
Director has approved a corrective action plan, or termination of corrective action, that will not
result in the immediate restoration of such groundwaters to the standards established under this
Subchapter.
(2) Where a statutory variance has been granted as provided in Rule .0113 of this Subchapter.
(b) Groundwaters occurring within an area defined by a compliance boundary in a waste
disposal permit are deemed to be designated RS.
(c) The boundary of a designated RS area may be approximated in the absence of analytical
data sufficient to define the dimension of the area. The boundary shall be located at least 250
feet away from the predicted edge of the contaminant plume, and shall include any areas into
which the contamination is expected to migrate.
(d) In areas designated RS, the person responsible for groundwater contamination shall
establish and implement a groundwater monitoring system sufficient to detect changes in
groundwater quality within the RS designated area. Monitoring shall be quarterly for the first
year and may be reduced to semi-annually thereafter until the applicable standards have been
achieved. If during the monitoring period, contaminant concentrations increase, additional
remedial action or monitoring pursuant to these Rules may be required.
, (e) The applicant for an RS designation shall also provide written verification that all
property owners within and adjacent to the proposed RS area have been notified of the requested
RS designation.
(f) The Division shall provide public notice of the intent to designate any groundwater RS in
accordance with the following requirements:
(1) Notice shall be published at least 30 days prior to any proposed final action in accordance
with G.S. 143-215.4. In addition, notice shall be provided to all property owners identified
pursuant to Paragraph (e) of this Rule and to the local County Health Director and the chief
administrative officer of the political jurisdiction(s) in which the contamination occurs.
(2) The notice shall contain the following information:
(A) name, address, and phone number of the agency issuing the public notice;
(B) the location and extent of the designated area;
(C) the county title number, county tax identification number, or the property tax book and
page identifiers;
(D) a brief description of the action or actions which resulted in the degradation of
groundwater in the area;
(E) actions or intended actions taken to restore groundwater quality;
(F) the significance of the RS designation;
(G) conditions applicable to removal of the RS designation;
(H) address and phone number of a Division contact from whom interested parties may
obtain further information.
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(3) The Director shall consider all requests for a public hearing, and if he determines that
there is significant public interest he shall issue public notice and hold a public hearing in
accordance with G.S 143-215.4(b) and Rule .0113(e) of this Section.
(4) These requirements shall not apply to groundwaters defined in Paragraph (b) of this Rule.
Statutory Authority G.S. 143-214.1; 143-215.3(a)(1); 143B-282(2);
Eff. June 10, 1979; Amended Eff. October 1, 1993; December 1, 1989; August 1, 1989;
December 30, 1983.
15A-2L.0105. ADOPTION BY REFERENCE
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983; Repealed Eff. August 1, 1989.
15A-2L.0106. CORRECTIVE ACTION
(a) Where groundwater quality has been degraded, the goal of any required corrective action
shall be restoration to the level of the Standards, or as closely thereto as is economically and
technologically feasible. In all cases involving requests to the Director for approval of corrective
action plans, or termination of corrective action, the responsibility for providing all information
required by this Rule lies with the person(s) making the request.
(b) Any person conducting or controlling an activity which results in the discharge of a waste
or hazardous substance or oil to the groundwaters of the State, or in proximity thereto, shall take
immediate action to terminate and control the discharge, mitigate any hazards resulting from
exposure to the pollutants and notify the Division of the discharge.
(c) Any person conducting or controlling an activity which has not been permitted by the
Division and which results in an increase in the concentration of a substance in excess of the
standard, other than agricultural operations, shall:
(1) immediately notify the Division of the activity that has resulted in the increase and the
contaminant concentration levels;
(2) take immediate action to eliminate the source or sources of contamination;
(3) submit a report to the Director assessing the cause, significance and extent of the
violation; and
(4) implement an approved corrective action plan for restoration of groundwater quality in
accordance with a schedule established by the Director, or his designee. In establishing a
schedule the Director, or his designee shall consider any reasonable schedule proposed by the
person submitting the plan. A report shall be made to the Health Director of the county or
counties in which the contamination occurs in accordance with the requirements of Rule .0114(a)
in this Section.
(d) Any person conducting or controlling an activity which is conducted under the authority
of a permit issued by the Division and which results in an increase in concentration of a
substance in excess of the standards:
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(1) at or beyond a review boundary, shall demonstrate, through predictive calculations or
modeling, that natural site conditions, facility design and operational controls will prevent a
violation of standards at the compliance boundary; or submit a plan for alteration of existing site
conditions, facility design or operational controls that will prevent a violation at the compliance
boundary, and implement that plan upon its approval by the Director, or his designee.
(2) at or beyond a compliance boundary, shall assess the cause, significance and extent of the
violation of standards and submit the results of the investigation, and a plan and proposed
schedule for corrective action to the Director, or his designee. The permittee shall implement the
plan as approved by and in accordance with a schedule established by the Director, or his
designee. In establishing a schedule the Director, or his designee shall consider any reasonable
schedule proposed by the permittee.
(e) For the purposes of Paragraphs (c) and (d) of this Rule, an activity conducted under the
authority of a permit issued by the Division, and subject to Paragraph (d) of this Rule, is one for
which:
(1) a permit has been issued pursuant to G.S. 143-215.1;
(2) the permit was originally issued after December 30, 1983;
(3) the substance for which a standard has been exceeded outside the compliance boundary
has been released to groundwater as a result of the permitted activity;
(4) all other activities shall for the purpose of this Rule be deemed not permitted by the
Division and subject to the provisions of Paragraph (c)of this Rule.
(f) Corrective action required following discovery of the unauthorized release of a
contaminant to the surface or subsurface of the land, and prior to or concurrent with the
assessment required in Paragraphs
and (d) of this Rule, shall include, but is not limited to:
(1) Prevention of fire, explosion or the spread of noxious fumes;
(2) Abatement, containment or control of the migration of contaminants;
(3) Removal, or treatment and control of any primary pollution source such as buried waste,
waste stockpiles or surficial accumulations of free products;
(4) Removal, treatment or control of secondary pollution sources which would be potential
continuing sources of pollutants to the groundwaters such as contaminated soils and non-aqueous
phase liquids. Contaminated soils which threaten the quality of groundwaters must be treated,
contained or disposed of in accordance with applicable rules and procedures established by the
Division. The treatment or disposal of contaminated soils shall be conducted in a manner that
will not result in a violation of standards or North Carolina Hazardous Waste Management rules.
(g) The site assessment conducted pursuant to the requirements of Paragraph (c) of this Rule,
shall include:
(1) The source and cause of contamination;
(2) Any imminent hazards to public health and safety and actions taken to mitigate them in
accordance with Paragraph (f) of this Rule;
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(3) All receptors and significant exposure pathways;
(4) The horizontal and vertical extent of soil and groundwater contamination and all
significant factors affecting contaminant transport; and
(5) Geological and hydro-geological features influencing the movement, chemical, and
physical character of the contaminants.
Reports of site assessments shall be submitted to the Division as soon as practicable or in
accordance with a schedule established by the Director, or his designee. In establishing a
schedule the Director, or his designee shall consider any reasonable proposal by the person
submitting the report
(h) Corrective action plans for restoration of groundwater quality, submitted pursuant to
Paragraphs (c) and (d) of this Rule shall include:
(1) A description of the proposed corrective action and reasons for its selection.
(2) Specific plans, including engineering details where applicable, for restoring groundwater
quality.
(3) A schedule for the implementation and operation of the proposed plan.
(4) A monitoring plan for evaluating the effectiveness of the proposed corrective action and
the movement of the contaminant plume.
(i) In the evaluation of corrective action plans, the Director, or his designee shall consider the
extent of any violations, the extent of any threat to human health or safety, the extent of damage
or potential adverse impact to the environment, technology available to accomplish restoration,
the potential for degradation of the contaminants in the environment, the time and costs
estimated to achieve groundwater quality and restoration, the public and economic benefits to be
derived from groundwater quality restoration.
(j) A corrective action plan prepared pursuant to Paragraph (c) or of this Rule must be
implemented using the best available technol- ogy for restoration of groundwater quality to the
level of the standards, except as provided in Paragraphs (k), (1), (m), (r) and (s) of this Rule.
(k) Any person required to implement an approved corrective action plan for a non-permitted
site pursuant to this Rule may request that the Director approve such a plan without requiring
groundwater remediation to the standards. A request submitted to the Director under this
Paragraph shall include a description of site specific conditions, including information on the
availability of public water supplies for the affected area; the technical basis for the request; and
any other information requested by the Director to thoroughly evaluate the request In addition,
the person making the request must demonstrate to the satisfaction of the Director:
(1) that all sources of contamination and free product have been removed or controlled
pursuant to Paragraph (f) of this Rule;
(2) that the time and direction of contaminant travel can be predicted with reasonable
certainty;
(3) that contaminants have not and will not migrate onto adjacent properties, or that:
(A) such properties are served by an existing public water supply system dependent on
surface waters or hydraulically isolated groundwater, or
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(B) the owners of such properties have consented in writing to the request;
(4) that the standards specified in Rule .0202 of this Subchapter will he met at a location no
closer than one year time of travel upgradient of an existing or foreseeable receptor, based on
travel time and the natural attenuation capacity of subsurface materials or on a physical barrier to
groundwater migration that exists or will he installed by the person making the request;
(5) that, if the contaminant plume is expected to intercept surface waters, the groundwater
discharge will not possess contaminant concentrations that would result in violations of standards
for surface waters contained in 15A NCAC 2B .0200;
(6) that public notice of the request has been provided in accordance with Rule .0114(b) of
this Section;
(7) that the proposed corrective action pian would he consistent with all other environmental
laws.
(1) Any person required to implement an approved corrective action plan for a non-permitted
site pursuant to this Rule may request that the Director approve such a plan based upon natural
processes of degradation and attenuation of contaminants. A request submitted to the Director
under this Paragraph shall include a description of site specific conditions, including written
documentation of projected groundwater use in the contaminated area based on current state or
local government planning efforts; the technical basis for the request; and any other information
requested by the Director to thoroughly evaluate the request. In addition, the person making the
request must demonstrate to the satisfaction of the Director:
(1) that all sources of contamination and free product have been removed or controlled
pursuant to Paragraph (f) of this Rule;
(2) that the contaminant has the capacity to degrade or attenuate under the site-specific
conditions;
(3) that the time and direction of contaminant travel can be predicted with reasonable
certainty;
(4) that contaminant migration will not result in any violation of applicable groundwater
standards at any existing or foreseeable receptor;
(5) that contaminants have not and will not migrate onto adjacent properties, or that
(A) such properties are served by an existing public water supply system dependent on
surface waters or hydraulically isolated groundwater, or
(B) the owners of such properties have consented in writing to the request;
(6) that, if the contaminant plume is expected to intercept surface waters, the groundwater
discharge will not possess contaminant concentrations that would result in violations of standards
for surface waters contained in 15A NCAC 2B .0200;
(7) that the person making the request will put in place a groundwater monitoring program
sufficient to track the degradation and attenuation of contaminants and contaminant by-products
within and down gradient of the plume and to detect contaminants and contaminant by-products
prior to their reaching any existing or foreseeable receptor at least one year's time of travel
upgradient of the receptor and no greater than the distance the groundwater at the contaminated
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site is predicted to travel in five years;
(8) that all necessary access agreements needed to monitor groundwater quality pursuant to
Subparagraph (7) of this Paragraph have been or can be obtained;
(9) that public notice of the request has been provided in accordance with Rule .0114(b) of
this Section; and
(10) that the proposed corrective action plan would be consistent with all other environmental
laws.
(m) The Division or any person required to implement an approved corrective action plan for
a non-permitted site pursuant to this Rule may request that the Director approve termination of
corrective action.
(1) A request submitted to the Director under this Paragraph shall include:
(A) a discussion of the duration of the corrective action, the total project's cost, projected
annual cost for continuance and evaluation of the success of the corrective action;
(B) an evaluation of alternate treatment technologies which could result in further reduction
of contaminant levels projected capital and annual operating costs for each technology;
(C) effects, including health and safety impacts, on groundwater users if contaminant levels
remain at levels existing at the time corrective action is terminated; and
(D) any other information requested by the Director to thoroughly evaluate the request.
(2) In addition, the person making the request must demonstrate to the satisfaction of the
Director:
(A) that continuation of corrective action would not result in a significant reduction in the
concentration of contaminants (At a minimum this demonstration must show the duration and
degree of success of remedial efforts to attain standards and include a showing that the
asymptotic slope of the contaminants curve of decontamination is less than a ratio of 1:40 over a
term of one year based on quarterly sampling);
(B) that contaminants have not and will not migrate onto adjacent properties, or that
(i) such properties are served by an existing public water supply system dependent on surface
waters or hydraulically isolated groundwater, or
(11) the owners of such properties have consented in writing to the request;
(C) that, if the contaminant plumes expected to intercept surface waters, the groundwater
discharge will not possess contaminant concentrations that would result in violations of standards
for surface waters contained in 15 A NCAC 2B .0200;
(D) that public notice of the request has been provided in accordance with Rule .0114(b) of
this Section; and
(E) that the proposed termination would be consistent with all other environmental laws.
(3) The Director shall not authorize termination of corrective action for any area that, at the
time the request is made, has been identified by a state or local groundwater use planning process
for resource development.
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(4) The Director may authorize the termination of corrective action, or amend the corrective
action plan after considering all the information in the request. Upon termination of corrective
action, the Director shall required implementation of a groundwater monitoring program
sufficient to track the degradation and attenuation of contaminants at a location of at least one
year's predicted time of travel upgradient of any existing or foreseeable receptor. The monitoring
program shall remain in effect until there is sufficient evidence that the contaminant
concentrations have been reduced to the level of the standards.
(n) Upon a determination by the Director that continued corrective action would result in no
significant reduction in contaminant concentrations, and the contaminated groundwaters can be
rendered potable by treatment using readily available and economically reasonable technologies,
the Director may designate the remaining area of degraded groundwater RS. Where the
remaining degraded groundwaters cannot be made potable by such treatment, the Director may
consider a request for reclassification of the groundwater to a GC classification as outlined in
Rule .0201 of this Subchapter.
(0) If at any time the Director determines that a new technology is available that would
remediate the contaminated groundwater to the standards specified in Rule .0202 of this
Subchapter, the Director may require the responsible party to evaluate the economic and
technological feasibility of implementing the new technology in an active groundwater corrective
action plan in accordance with a schedule established by the Director. The Director's
determination to utilize new technology at any site or for any particular constituent shall include
a consideration of the factors in Paragraph (h) of this Rule.
(p) Where standards are exceeded as a result of the application of pesticides or other
agricultural chemicals, the Director shall request the Pesticide Board or the Department of
Agriculture to assist the Division of Environmental Management in determining the cause of the
violation. If the violation is determined to have resulted from the use of pesticides, the Director
shall request the Pesticide Board to take appropriate regulatory action to control the use of the
chemical or chemicals responsible for, or contributing to, such violations, or to discontinue their
use.
(q) The approval pursuant to this Rule of any corrective action plan, or modification or
termination thereof, which permits the migration of a contaminant onto adjacent property, shall
not affect any private right of action by any party which may be effected by that contamination.
(r) If the increase in the concentration of a substance in excess of the standard resulted in
whole or in part from a release from a commercial or noncommercial underground storage tank
as defined in G.S. 143-215.94A, any person required to implement an approved corrective action
plan pursuant to this Rule and seeking reimbursement for the Commercial or Noncommercial
Leaking Petroleum Underground Storage Tank Cleanup Funds shall implement a corrective
action plan meeting the requirements of Paragraphs (k)or (1) of this Rule unless such a person
demonstrates to the Director that:
(1) contamination resulting from the discharge cannot qualify for approval of a plan based on
the requirements of the Paragraphs; or
(2) the cost of making such a demonstration would exceed the cost of implementing a
corrective action plan submitted pursuant to Paragraph (c) of this Rule.
(s) If the increase in the concentration of a substance in excess of the standard resulted in
whole or in part from a release from a commercial or noncommercial underground storage tank
as defined in G.S. 143-215.94A, the Director may require any person implementing or operating
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a previously approved corrective action plan pursuant to this Rule to:
(1) develop and implement a corrective action plan meeting the requirements of Paragraphs
(k) and (1) of this Rule; or
(2) seek discontinuance of corrective action pursuant to
Paragraph of this Rule.
Authority G.S. 143-215.2; 143-215.3(a)(1); 143-215.94A; 143-215.94V; 143B-282;
Eff. August 1, 1989; Amended Eff. October 1, 1993; September 1, 1992; Temporary
Amendment Eff. January 2, 1996.
15A-2L.0107. COMPLIANCE BOUNDARY
(a) For disposal systems individually permitted prior to December 30, 1983, the compliance
boundary is established at a horizontal distance of 500 feet from the waste boundary or at the
property boundary, whichever is closer to the source.
(b) For disposal systems individually permitted on or after December 30, 1983, a compliance
boundary shall be established 250 feet from the waste boundary, or 50 feet within the property
boundary, whichever point is closer to the source.
(c) The boundary shall be established by the Director, or his designee at the time of permit
issuance. Any sale or transfer of property which affects a compliance boundary shall be reported
immediately to the Director, or his designee. For disposal systems which are not governed by
Paragraphs (e) or (f) of this Rule, the compliance boundary affected by the sale or transfer of
property will be re-established consistent with Paragraphs (a) or (b) of this Rule, whichever is
applicable.
(d) Except as provided in Paragraph (g) of this Rule, no water supply wells shall be
constructed or operated within the compliance boundary of a disposal system individually
permitted or repermitted after January 1, 1993.
(e) Except as provided in Paragraph (g) of this Rule, a permittee shall not transfer land
within an established compliance boundary of a disposal system permitted or repermitted after
January 1, 1993 unless:
(1) the land transferred is serviced by a community water system as defined in 15A NCAC
18C, the source of which is located outside the compliance boundary; and
(2) the deed transferring the property:
(A) contains notice of the permit, including the permit number, a description of the type of
permit, and the name, address and telephone number of the permitting agency; and
(B) contains a restrictive covenant running with the land and in favor of the permittee and the
State, as a third party beneficiary, which prohibits the construction and operation of water supply
wells within the compliance boundary; and
(C) contains a restrictive covenant running with the land and in favor of the permittee and the
State, as a third party beneficiary, which grants the right to the permittee and the State to enter on
such property within the compliance boundary for groundwater monitoring and remediation
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purposes.
(f) Except as provided in Paragraph (g) of this Rule, if at the time a permit is issued or
reissued after January 1, 1993, the permittee is not the owner of the land within the compliance
boundary, it shall be a condition of the permit issued or renewed that the landowner of the land
within the compliance boundary, if other than the permittee, execute and file in the Register of
Deeds in the county in which the land is located, an easement running with the land which:
(1) contains:
(A) either a notice of the permit, including the permit number, a description of the type of
permit, and the name, address and telephone number of the permitting agency; or
(B) a reference to a notice of the permit with book and page number of its recordation if such
notice is required to be filed by statute;
(2) prohibits the construction and operation of water supply wells within the compliance
boundary; and
(3) reserves the right to the permittee and the State to enter on such property within the
compliance boundary for groundwater monitoring and remediation purposes. The easement may
be terminated by the Director when its purpose has been fulfilled or the need for the easement no
longer exists. Under those conditions the Director shall, upon request by the landowner, file a
document terminating the easement with the appropriate Register of Deeds.
(g) The requirements of Paragraphs (d), (e) and (f) of this Rule are not applicable to ground
adsorption treatment systems serving four or fewer single family dwellings or multiunit
dwellings of four or fewer units.
(h) The boundary shall form a vertical plane extending from the water table to the maximum
depth of saturation.
(i) For ground absorption sewage treatment and disposal systems which are permitted under
15A NCAC 18A .1900, the compliance boundary shall be established at the property boundary.
(j) Penalties authorized pursuant to G.S. 143-215.6A(a)(l) will not be assessed for violations
of standards within a compliance boundary unless the violations are the result of violations of
permit conditions or negligence in the management of the facility.
(k) The Director shall require:
(1) that permits for all activities governed by G.S. 143-215.1 be written to protect the quality
of groundwater established by applicable standards, at the compliance boundary;
(2) that necessary groundwater quality monitoring shall be conducted within the compliance
boundary; and
(3) that a violation of standards within the compliance boundary resulting from activities
conducted by the permitted facility be remedied through clean-up, recovery, containment, or
other response when any of the following conditions occur:
(A) a violation of any standard in adjoining classified groundwaters occurs or can be
reasonably predicted to occur considering hydrogeologic conditions, modeling, or other available
evidence;
(B) an imminent hazard or threat to the public health or safety exists; or
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(C) a violation of any standard in groundwater occurring in the bedrock other than limestones
found in the Coastal Plain sediments, unless it can be demonstrated that the violation will not
adversely affect, or have the potential to adversely affect a water supply well.
Statutory Authority G.S. 143-215.1(b); 143-215.3(a)(1); 143B-282;
Eff. August 1, 1989; Amended Eff. October 1, 1993; November 2, 1992.
15A-2L.0108. REVIEW BOUNDARY
A review boundary is established around any disposal system midway between the
compliance boundary and the waste boundary. When the concentration of any substance equals
or exceeds the standard at the review boundary as determined by monitoring, the permittee shall
take action in accordance with the provisions of Rule .0106(c)(2)(A) of this Subchapter.
Statutory Authority G.S. 143-215.1(b); 143-215.3(a)(1); 143B-282;
Eff. August 1, 1989.
15A-2L.0109. DELEGATION
(a) The Director is delegated the authority to enter into consent special orders under G.S.
143-215.2 for violations of the standards except when a public meeting is required as provided in
15ANCAC 2H .1203.
(b) The Director is delegated the authority to prepare a proposed special order to be issued
by the Commission without the consent of the person affected and to notify the affected person
of that proposed order and of the procedure set out in G.S. 150B-23 to contest the proposed
special order.
(c) The Director, or his designee shall give public notice of proposed consent special orders
as specified in 15A NCAC 2H .1203.
Statutory Authority G.S. 143-215.2; 143-215.3(a)(l); 143-215.3(a)(4);
Eff. August 1, 1989; Amended Eff. October 1, 1993; October 1, 1990.
15A-2L.0110. MONITORING
(a) Except where exempted by statute or this Subchapter, any person who causes, permits or
has control over any discharge of waste, or groundwater cleanup program, shall install and
implement a monitoring system, at such locations, and in such detail, as the Director, or his
designee may require to evaluate the effects of the discharge upon the waters of the state,
including the effect of any actions taken to restore groundwater quality, as well as the efficiency
of any treatment facility. The monitoring plan shall be prepared under the responsible charge of
a Professional Engineer or Licensed Geologist and bear the seal of the same.
(b) Monitoring systems shall be constructed in a manner that will not result in the
contamination of adjacent groundwaters of a higher quality.
(c) Monitoring shall be conducted and results reported in a manner and at a frequency
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specified by the Director, or his designee.
Statutory Authority G.S. 143-215.1(b); 143-215.3(a)(1); 143-215.65; 143-215.66; 143B-282;
Eff. August 1, 1989; Amended Eff. October 1, 1993.
15A-2L.0111. REPORTS
(a) Any person subject to the requirements for corrective action specified in Rule .0106 of
this Section shall submit to the Director, in such detail as the Director may require, a written
report that describes:
(1) the results of the investigation specified in Paragraphs (c) and (d) of Rule .0106 of this
Section, including but not limited to:
(A) a description of the sampling procedures followed and methods of chemical analyses
used; and
(B) all technical data utilized in support of any conclusions drawn or determinations made.
(2) the results of the predictive calculations or modeling, including a copy of the calculations
or model runs and all supporting technical data, used in the demonstration required in Paragraph
(d) of Rule .0106 of this Section; and
(3) the proposed methodology and timetable associated with the corrective action for those
situations identified in Paragraphs (c) and (d) of Rule .0106 of this Section.
(b) The report shall be prepared under the responsible charge of a Professional Engineer or
Licensed Geologist and bear the seal of the same as specified in Rule .0106(d) of this Section.
Statutory Authority G.S. 143-215.1(b); 143-215.3(a)(1); 143-215.65; 143B-282;
Eff. August 1, 1989; Amended Eff. October 1, 1993.
15A-2L.0112. ANALYTICAL PROCEDURES
Tests or analytical procedures to determine compliance or noncompliance with the standards
established in Rule .0202 of this Subchapter will be in accordance with:
(1) The most sensitive of the following methods or procedures for substances where the
standard is at or above the method detection limit value:
(a) The most recent version of Standard Methods for the Examination of Water and
Wastewater, published jointly by American Public Health Association, American Water Works
Association and Water Pollution Control Federation;
(b) Methods for Chemical Analysis of Water and Waste, 1979, U.S. Environmental
Protection Agency publication number EPA-600/4-79-020, as revised March 1983;
(c) Test Methods for Evaluating Solid Wastes: Physical/Chemical Methods, 3rd Edition,
1986, U.S. Environmental Protection Agency publication number SW-846;
(d) Test Procedures for the Analysis of Pollutants Under the Clean Water Act, Federal
Register Vol. 49, No. 209,40 CFR Part 136, October 26, 1984;
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16
(e) Methods or procedures approved by letter from the Director upon application by the
regulated source; or
(2) A method or procedure approved by the Director for substances where the standard is less
than the method detection limit value.
Statutory Authority G.S. 143-215.3(a)(1); 143B-282;
Eff. August 1, 1989; Amended Eff. October 1, 1993.
15A-2L.0113. VARIANCE
(a) The Commission, on its own initiative or pursuant to a request under G.S. 143-215.3(e),
may grant variances to the rules of this Subchapter.
(b) Requests for variances are filed by letter from the applicant to the Environmental
Management Commission. The application shall be mailed to the chairman of the Commission
in care of the Director, Division of Environmental Management, Post Office Box 29535,
Raleigh, N.C. 27626-0535.
(c) The application shall contain the following information:
(1) Applications filed by counties or municipalities must include a resolution of the County
Board of Commissioners or the governing board of the municipality requesting the variance.
(2) A description of the past, existing or proposed activities or operations that have or would
result in a discharge of contaminants to the groundwaters.
(3) Description of the proposed area for which a variance is requested. A detailed location
map, showing the orientation of the facility, potential for groundwater contaminant migration, as
well as the area covered by the variance request, with reference to at least two geographic
references (numbered roads, named streams/rivers, etc.) must be included.
(4) Supporting information to establish that the variance will not endanger the public health
and safety, including health and environmental effects from exposure to groundwater
contaminants. (Location of wells and other water supply sources including details of well
construction within 1/2 mile of site must be shown on a map).
(5) Supporting information to establish that requirements of this Rule cannot be achieved by
providing the best available technology economically reasonable. This information must identify
specific technology considered, and the costs of implementing the technology and the impact of
the costs on the applicant.
(6) Supporting information to establish that compliance would produce serious financial
hardship on the applicant.
(7) Supporting information that compliance would produce serious financial hardship without
equal or greater public benefit.
(8) A copy of any Special Order that was issued in connection with contaminants in the
proposed area and supporting information that applicant has complied with the Special Order.
(9) A list of the names and addresses of any property owners within the proposed area of the
variance as well as any property owners adjacent to the site covered by the variance.
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(d) Upon receipt of the application, the Director will review it for completeness and request
additional information if necessary. When the application is complete, the Director shall give
public notice of the application and schedule the matter for a public hearing in accordance with
G.S. 143-215.4(b) and the procedures set out in Paragraph (e) of this Rule.
(e) Notice of Public Hearing:
(1) Notice of public hearing on any variance application shall be circulated in the
geographical areas of the proposed variance by the Director at least 30 days prior to the date of
the hearing:
(A) by publishing the notice one time in a newspaper having general circulation in said
county;
(B) by mailing to the North Carolina Department of Environment, Health, and Natural
Resources, Division of Environmental Health and appropriate local health agency;
(C) by mailing to any other federal, state or local agency upon request;
(D) by mailing to the local governmental unit or units having jurisdiction over the geographic
area covered by the variance;
(E) by mailing to any property owner within the proposed area of the variance, as well as any
property owners adjacent to the site covered by the variance; and
(F) by mailing to any person or group upon request.
(2) The contents of public notice of any hearing shall include at least the following:
(A) name, address, and phone number of agency holding the public hearing;
(B) name and address of each applicant whose application will be considered at the meeting;
(C) brief summary of the variance request;
(D) geographic description of a proposed area for which a variance is requested;
(E) brief description of activities or operations which have or will result in the discharge of
contaminants to the groundwaters described in the variance application;
(F) a brief reference to the public notice issued for each variance application;
(G) information regarding the time and location for the hearing;
(H) the purpose of the hearing;
(I) address and phone number of premises at which interested persons may obtain further
information, request a copy of each application, and inspect and copy forms and related
documents; and
(J) a brief description of the nature of the hearing including the rules and procedures to be
followed. The notice shall also state that additional information is on file with the Director and
may be inspected at any time during normal working hours. Copies of the information on file
will be made available upon request and payment of cost or reproduction.
(f) All comments received within 30 days following the date of the public hearing shall be
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18
made part of the application file and shall be considered by the Commission prior to taking final
action on the application.
(g) In determining whether to grant a variance, the Commission shall consider whether the
applicant has complied with any Special Order, or Special Order by Consent issued under G.S.
143-215.2.
(h) If the Commission's final decision is unacceptable, the applicant may file a petition for a
contested case in accordance with Chapter 150B of the General Statutes. If the petition is not
filed within 60 days, the decision on the variance shall be final and binding.
(i) A variance shall not operate as a defense to an action at law based upon a public or
private nuisance theory or any other cause of action.
Statutory Authority G.S. 143-215.3(a)(1); 143-215.3(a)(3); 143-215.3(a)(4); 143-215.3(e);
143-215.4;
Eff. August 1, 1989; Amended Eff. October 1, 1993.
15A-2L.0114. NOTIFICATION REQUIREMENTS
(a) Any person subject to the requirements of Rule .0106(c) of this Section shall submit to
the local Health Director, and the chief administrative officer of the political jurisdictions in
which the groundwater contamination has occurred, a report that describes:
(1) The area extent of the contaminant plume;
(2) The chemical constituents in the groundwater which exceed the standards described in
Rule .0202 of this Subchapter;
(3) Actions taken and intended to mitigate threats to human health;
(4) The location of any wells installed for the purpose of monitoring the contaminant plume
and the frequency of sampling.
The report described in this Rule shall be submitted no later than five working days after
submittal of the completed report assessing the cause, significance and extent of the violation as
required by Rule .0106(c).
(b) Any person who submits a request under Rule .0106(k), (1), or (m) of this Section shall
notify the local Health Director and the chief administrative officer of the political jurisdictions
in which the contaminant plume occurs, and all property owners and occupants within or
contiguous to the area underlain by the contaminant plume, and under the areas where it is
expected to migrate, of the nature of the request and reasons supporting it. Notification shall be
made by certified mail concurrent with the submittal of the request to the Director. A final
decision by the Director shall be postponed for a period of 30 days following receipt of the
request so that the Director may consider comments submitted by individuals interested in the
request.
(c) Any person whose request under Rule .0106(k), (1), or (m) of this Section is granted by
the Director shall notify parties specified in Paragraph (b) of this Rule of the Director's decision.
Notification shall be made by certified mail within 30 days of receipt of the Director's decision.
Statutory Authority G.S. 143-214.1; 143-215.3(a)(1); 143B-282(2)b;
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Eff. October 1, 1993.
15A-2L.02. CLASSIFICATIONS AND GROUNDWATER QUALITY STANDARDS
Rule
15A-2L.0201. GROUNDWATER CLASSIFICATIONS.
15A-2L.0202. GROUNDWATER QUALITY STANDARDS.
I5A-2L.0201. GROUNDWATER CLASSIFICATIONS
The classifications which may be assigned to the groundwaters will be those specified in the
following series of classifications:
(1) Class GA groundwaters; usage and occurrence:
(a) Best Usage. Existing or potential source of drinking water supply for humans.
(b) Conditions Related to Best Usage. This class is intended for those groundwaters in which
chloride concentrations are equal to or less than 250 mg/1, and which are considered suitable for
drinking in their natural state, but which may require treatment to improve quality related to
natural conditions.
(c) Occurrence. In the saturated zone.
(2) Class GSA groundwaters; usage and occurrence:
(a) Best Usage. Existing or potential source of water supply for potable mineral water and
conversion to fresh waters.
(b) Conditions Related to Best Usage. This class is intended for those groundwaters in which
the chloride concentrations due to natural conditions is in excess of 250 mg/1, but which
otherwise may be considered suitable for use as potable water after treatment to reduce
concentrations of naturally occurring substances.
(c) Occurrence. In the saturated zone.
(3) Class GC groundwaters: usage and occurrence:
(a) Best Usage. The best usage of GC groundwaters is as a source of water supply for
purposes other than drinking, including other domestic uses by humans.
(b) Conditions Related to Best Usage. This class includes those groundwaters that do not
meet the quality criteria for GA or GSA groundwaters and for which efforts to improve
groundwater quality would not be technologically feasible, or not in the best interest of the
public. Continued consumption of waters of this class by humans could result in adverse health
affects.
(c) Occurrence. Groundwaters of this class may be defined by the Commission pursuant to
Section .0300 of this Subchapter on a case by case basis.
Statutory Authority G.S. 143-214.1; 143B-282(2);
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Eff. June 10, 1979; Amended Eff. October 1, 1993; August 1, 1989; September 1, 1984;
December 30, 1983.
15A-2L.0202. GROUNDWATER QUALITY STANDARDS
(a) The groundwater quality standards for the protection of the groundwaters of the state are
those specified in this Rule. They are the maximum allowable concentrations resulting from any
discharge of contaminants to the land or waters of the state, which may be tolerated without
creating a threat to human health or which would otherwise render the groundwater unsuitable
for its intended best usage.
(b) The groundwater quality standards for contaminants specified in Paragraphs (g) and (h)
of this Rule shall be as listed, except that:
(1) Where the standard for a substance is less than the practical quantitation limit, the
detection of that substance at or above the practical quantitation limit shall constitute a violation
of the standard.
(2) Where two or more substances exist in combination, the Director shall consider the
effects of chemical interactions as determined by the Division of Epidemiology and may
establish maximum concentrations at values less than those established in accordance with
Paragraphs (c) and (g) of this Rule. In the absence of information to the contrary, the
carcinogenic risks associated with carcinogens present shall be considered additive and the toxic
effects associated with non-carcinogens present shall also be considered additive.
(3) Where naturally occurring substances exceed the established standard, the standard will
be the naturally occurring concentration as determined by the Director.
(c) Except for tracers used in concentrations which have been determined by the Division of
Epidemiology to be protective of human health, and the use of which has been permitted by the
Division, substances which are not naturally occurring and for which no standard is specified
shall not be permitted in detectable concentrations in Class GA or Class GSA groundwaters. Any
person may petition the Director to establish an interim maximum allowable concentration for an
unspecified substance, however, the burden of demonstrating those concentrations of the
substance which correspond to the levels described in Paragraph (d) of this Rule rests with the
petitioner. The petitioner shall submit relevant toxicological and epidemiological data, study
results, and calculations necessary to establish a standard in accordance with the procedure
prescribed in Paragraph (d) of this Rule. Within three months after the establishment of an
interim maximum allowable concentration for a substance by the Director, the Director shall
initiate action to consider adoption of a standard for that substance.
(d) Groundwater quality standards for substances in Class GA and Class GSA groundwaters
are established as the lesser of:
(1) Systemic threshold concentration calculated as follows: [Reference Dose (mg/kg0ay) x 70
kg (adult body weight) x Relative Source Contribution (.10 for inorganics; .20 for organics)] / [2
literseay (avg. water consumption)];
(2) Concentration which corresponds to an incremental lifetime cancer risk of 1x10-6/
(3) Taste threshold limit value;
(4) Odor threshold limit value;
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(5) Maximum contaminant level; or
(6) National secondary drinking water standard.
(e) The following references, in order of preference, shall be used in establishing
concentrations of substances which correspond to levels described in Paragraph (d) of this Rule.
(1) Integrated Risk Information System (U.S. EPA).
(2) Health Advisories (U.S. EPA Office of Drinking Water).
(3) Other health risk assessment data published by U.S. EPA.
(4) Other appropriate, published health risk assessment data, and scientifically valid
peer-reviewed published toxicological data.
(f) Groundwater quality standards specified in Paragraphs (g) and (h) of this Rule and
interim maximum allowable concentrations established pursuant to Paragraph (c) of this Rule
shall be reviewed on a biennial basis. Appropriate modifications to established standards will be
made in accordance with the procedure prescribed in Paragraph (d) of this Rule where
modifications are considered appropriate based on data published subsequent to the previous
review.
(g) Class GA Standards. Where not otherwise indicated, the standard refers to the total
concentration in milligrams per liter of any constituent in a dissolved, colloidal or particulate
form which is mobile in groundwater. This does not apply to sediment or other particulate
matter which is preserved in a groundwater sample as a result of well construction or sampling
procedures.
(1) acetone: 0.7
(2) acrylamide (propenamide): 0.00001
(3) arsenic: 0.05
(4) barium: 2.0
(5) benzene: 0.001
(6) boron: 0.32
(7) bromoform (tribromomethane): 0.00019
(8) butylbenzyl phthalate: 0.10
(9) cadmium: 0.005
(10) carbofuran: 0.036
(11) carbon tetrachloride: 0.0003
(12) chlordane: 2.7 x 10-5
(13) chloride: 250.0
(14) chlorobenzene: 0.05
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(15
(16
(17
(18
09
(20
(21
(22
(23
(24
(25
(26
(27
(28
(29
(30
(31
(32
(33
(34
(35
(36
(37
(38
(39
(40
(41
(42
(43
chloroform (trichloromethane): 0.00019
2-chlorophenol: 0.0001
chromium: 0.05
cis-l,2-dichloroethene: 0.07
coliform organisms (total): 1 per 100 milliliters
color: 15 color units
copper: 1.0
cyanide: 0.154
2, 4-D (2,4-dichlorophenoxy acetic acid): 0.07
l,2-dibromo-3-chloropropane: 2.5 x \0-5)
dichlorodifluoromethane (Freon-12; Halon): 1.4
1,1 dichloroethane: 0.7
1,2-dichloroethane (ethylene dichloride): 0.00038
1.1-dichloroethylene (vinylidene chloride): 0.007
1.2-dichloropropane: 0.00056
di-n-butyl (or dibutyl) phthalate (DBP): 0.7
diethylphthalate (DEP): 5.0
di(2-ethylhexyl) phthalate (DEHP): 0.003
di-n-octyl phthalate: 0.14
p-dioxane (1,4-diethylene dioxide): 0.007
dioxin: 2.2 x 10-70
dissolved solids (total): 500
diundecyl phthalate (Santicizer 711): 0.14
endrin: 0.002
epichlorohydrin (l-chloro-2,3-epoxypropane): 0.00354
ethylbenzene: 0.029
ethylene dibromide (EDB; 1,2-dibromoethane): 4.0 x 10
ethylene glycol: 7.0
fluorene: 0.28
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(44
(45
(46
(47
(48
(49
(50
(51
(52
(53
(54
(55
(56
(57
(58
(59
(60
(61
(62
(63
(64
(65
(66
(67
(68
(69
(70
(71
(72
fluoride: 2.0
foaming agents: 0.5
gross alpha (adjusted)particle activity (excluding radium-226 and uranium): 15 pCi/1
heptachlor: 8.0 x 10-6
heptachlor epoxide: 4.0 x 10-6
heptane: 2.1
hexachlorobenzene (perchlorobenzene): 0.00002
n-hexane: 0.42
iron: 0.3
lead: 0.015
lindane: 2.0 x 10-4
manganese: 0.05
mercury: 0.0011
metadichlorobenzene (1,3-dichlorobenzene): 0.62
methoxychlor: 0.035
methylene chloride (dichloromethane): 0.005
methyl ethyl ketone (MEK; 2-butanone): 0.17
methyl tert-butyl ether (MTBE): 0.2
naphthalene: 0.021
nickel: 0.1
nitrate: (as N) 10.0
nitrite: (as N) 1.0
orthodichlorobenzene (1,2-dichlorobenzene): 0.62
oxamyl: 0.175
paradichlorobenzene (1,4-dichlorobenzene): 0.075
pentachlorophenol: 0.0003
pH: 6.5 - 8.5
phenanthrene: 0.21
phenol: 0.30
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(73) radium-226 and radium-228 (combined): 5 pCi/1
(74) selenium: 0.05
(75) silver: 0.018
(76) styrene (ethenylbenzene): 0.1
(77) sulfate: 250.0
(78) tetrachloroethylene (perchloroethylene; PCE): 0.0007
(79) toluene (methylbenzene): 1.0
(80) toxaphene: 3.1 x 10-5
(81)2,4, 5,-TP (Silvex): 0.05
(82) trans-1,2-dichloroethene: 0.07
(83) 1,1,1-trichloroethane (methyl chloroform): 0.2
(84) trichloroethylene (TCE): 0.0028
(85) trichlorofluoromethane: 2.1
(86) vinyl chloride (chloroethylene): 1.5 x 10-5
(87) xylenes (o-, m-, and p-): 0.53
(88) zinc: 2.1
(h) Class GSA Standards. The standards for this class shall be the same as those for Class
GA except as follows:
(1) chloride: allowable increase not to exceed 100 percent of the natural quality
concentration.
(2) total dissolved solids: 1000 mg/1.
(i) Class GC Waters.
(1) The concentrations of substances which, at the time of classification exceed the standards
applicable to Class GA or GSA groundwaters shall not be caused to increase, nor shall the
concentrations of other substances be caused to exceed the GA or GSA standards as a result of
further disposal of contaminants to or beneath the surface of the land within the boundary of the
area classified GC.
(2) The concentrations of substances which, at the time of classification, exceed the standards
applicable to GA or GSA groundwaters shall not be caused to migrate as a result of activities
within the boundary of the GC classification, so as to violate the groundwater or surface water
quality standards in adjoining waters of a different class.
(3) Concentrations of specific substances, which exceed the established standard at the time
of classification, shall be listed in Section .0300 of this Subchapter.
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Statutory Authority G.S. 143-214.1; 143B-282(a)(2);
Eff. June 10, 1979; Amended Eff. November 1, 1994; October 1, 1993; September 1, 1992;
August 1, 1989.
15A-2L.03. ASSIGNMENT OF UNDERGROUND WATER CLASSIFICATIONS
Rule
15A-2L.0301. CLASSIFICATIONS: GENERAL.
15A-2L.0302. STATEWIDE.
15A-2L.0303. BROAD RIVER BASIN.
15A-2L.0304. CAPE FEAR RIVER BASIN.
15A-2L.0305. CATAWBA RIVER BASIN.
15A-2L.0306. CHOWAN RIVER BASIN.
15A-2L.0307. FRENCH BROAD RIVER BASIN.
15A-2L.0308. HIWASSEE RIVER BASIN.
15A-2L.0309. LITTLE TENNESSEE RIVER BASIN.
15A-2L.0310. SAVANNAH RIVER BASIN.
15A-2L.0311. LUMBER RIVER BASIN.
15A-2L.0312. NEUSE RIVER BASIN.
15A-2L.0313. NEW-WATAUGA RIVER BASIN.
15A-2L.0314. PASQUOTANK RIVER BASIN.
15A-2L.0315. ROANOKE RIVER BASIN.
15A-2L.0316. TAR PAMLICO RIVER BASIN.
15A-2L.0317. WHITE OAK RIVER BASIN.
15A-2L.0318. Y AD KIN-PEE DEE RIVER BASIN.
15A-2L.0319. RECLASSIFICATION.
15A-2L.0301. CLASSIFICATIONS: GENERAL
(a) Schedule of Classifications. The classifications are based on the quality, occurrence and
existing or contemplated best usage of the groundwaters as established in Section .0200 of this
Subchapter and are assigned statewide except where supplemented or supplanted by specific
classification assignments by major river basins.
(b) Classifications and Water Quality Standards. The classifications and standards assigned
to the groundwaters are denoted by the letters GA, GSA, or GC. These classifications refer to
the classifications and standards established by Rule .0201 of this Subchapter.
Statutory Authority G.S. 143-214.1; 143B-282(2);
Eff. December 30, 1983; Amended Eff. August 1, 1989.
15A-2L.0302. STATEWIDE
The classifications assigned to the groundwaters located within the boundaries or under the
extraterritorial jurisdiction of the State of North Carolina are:
(1) Class GA Waters. Those groundwaters in the state naturally containing 250 mg/1 or less
of chloride are classified GA.
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26
(2) Class GSA Waters. Those groundwaters in the state naturally containing greater than 250
mg/1 chloride are classified GSA.
(3) Class GC Waters. Those groundwaters assigned the classification GC in Rules .0303 -
.0318 of this Section.
Statutory Authority G.S. 143-214.1; 143B-282(2);
Eff. December 30, 1983; Amended Eff. August 1, 1989.
15A-2L.0303. BROAD RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0304. CAPE FEAR RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0305. CATAWBA RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0306. CHOWAN RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0307. FRENCH BROAD RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
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27
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0308. HIWASSEE RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0309. LITTLE TENNESSEE RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0310. SAVANNAH RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0311. LUMBER RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0312. NEUSE RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
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15A-2L.0313. NEW-WATAUGA RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0314. PASQUOTANK RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0315. ROANOKE RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0316. TAR PAMLICO RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0317. WHITE OAK RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30,1983.
15A-2L.0318. YADKIN-PEE DEE RIVER BASIN
No classification assignments other than those specified in Rule .0302 are made for the river
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basin.
Statutory Authority G.S. 143-214.1;
Eff. December 30, 1983.
15A-2L.0319. RECLASSIFICATION
The groundwater classifications as assigned may be revised by the Commission following
public notice and subsequent public hearing. Changes may be to a higher or lower classification.
Reclassification requests may be submitted to the Director.
Statutory Authority G.S. 143-214.1; 143-215.3(e); 143B-282(2);
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15A NCAC 2L. 0106 has been amended in a temporary action as follows:
.0106 CORRECTIVE ACTION
(a) Where groundwater quality has been degraded, the goal of any required corrective
action shall be restoration to the level of the standards, or as closely thereto as is
economically and technologically feasible. In all cases involving requests to the Director
for approval of corrective action plans, or termination of corrective action, the
responsibility for providing all information required by this Rule lies with the person(s)
making the request.
(b) Any person conducting or controlling an activity which results in the discharge of a
waste or hazardous substance or oil to the groundwaters of the State, or in proximity
thereto, shall take immediate action to terminate and control the discharge, mitigate any
hazards resulting from exposure to the pollutants and notify the Division of the discharge.
(c) Any person conducting or controlling an activity which has not been permitted by
the Division and which results in an increase in the concentration of a substance in excess
of the standard, other than agricultural operations, shall:
(1) immediately notify the Division of the activity that has resulted in the increase
and the contaminant concentration levels;
(2) take immediate action to eliminate the source or sources of contamination;
(3) submit a report to the Director assessing the cause, significance and extent of the
violation; and
(4) •' implement an approved corrective action plan for restoration of groundwater
quality in accordance with a schedule established by the Director, or his designee.
In establishing a schedule the Director, or his designee shall consider any
reasonable schedule proposed by the person submitting the plan. A report shall
be made to the Health Director of the county or counties in which the
contamination occurs in accordance with the requirements of Rule .0114(a) in this
Section.
(d) Any person conducting or controlling an activity which is conducted under the
authority of a permit issued by the Division and which results in an increase in
concentration of a substance in excess of the standards:
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(1) at or beyond a review boundary, shall demonstrate, through predictive
calculations or modeling, that natural site conditions, facility design and
operational controls will prevent a violation of standards at the compliance
boundary; or submit a plan for alteration of existing site conditions, facility design
or operational controls that will prevent a violation at the compliance boundary,
and implement that plan upon its approval by the Director, or his designee.
(2) at or beyond a compliance boundary, shall assess the cause, significance and extent
of the violation of standards and submit the results of the investigation, and a plan
and proposed schedule for corrective action to the Director, or his designee. The
permittee shall implement the plan as approved by and in accordance with a
schedule established by the Director, or his designee. In establishing a schedule
the Director, or his designee shall consider any reasonable schedule proposed by
the permittee.
(e) For the purposes of Paragraphs (c) and (d) of this Rule, an activity conducted under
the authority of a permit issued by the Division, and subject to Paragraph (d) of this Rule,
is one for which:
(1) a permit has been issued pursuant to G.S. 143-215.1;
(2) the permit was originally issued after December 30, 1983;
(3) the substance for which a standard has been exceeded outside the compliance
boundary has been released to groundwater as a result of the permitted activity;
(4) all other activities shall for the purpose of this Rule be deemed not permitted by
the Division and subject to the provisions of Paragraph (c) of this Rule.
(f) Corrective action required following discovery of the unauthorized release of a
contaminant to the surface or subsurface of the land, and prior to or concurrent with the
assessment required in Paragraphs (c) and (d) of this Rule, shall include, but is not limited
to:
(1) Prevention of fire, explosion or the spread of noxious fumes;
(2) Abatement, containment or control of the migration of contaminants;
(3) Removal, or treatment and control of any primary pollution source such as buried
waste, waste stockpiles or surficial accumulations of free products;
(4) Removal, treatment or control of secondary pollution sources which would be
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potential continuing sources of pollutants to the groundwaters such as
contaminated soils and non-aqueous phase liquids. Contaminated soils which
threaten the quality of groundwaters must be treated, contained or disposed of in
accordance with applicable rules and procedures established by the Division. The
treatment or disposal of contaminated soils shall be conducted in a manner that
will not result in a violation of standards or North Carolina Hazardous Waste
Management rules.
(g) The site assessment conducted pursuant to the requirements of Paragraph (c) of this
Rule, shall include:
(1) The source and cause of contamination;
(2) Any imminent hazards to public health and safety and actions taken to mitigate
them in accordance with Paragraph (f) of this Rule;
(3) All receptors and significant exposure pathways;
(4) The horizontal and vertical extent of soil and groundwater contamination and all
significant factors affecting contaminant transport; and
(5) Geological and hydrogeological features influencing the movement, chemical, and
physical character of the contaminants.
Reports of site assessments shall be submitted to the Division as soon as practicable or in
accordance with a schedule established by the Director, or his designee. In establishing a
schedule the Director, or his designee shall consider any reasonable proposal by the person
submitting the report.
(h) Corrective action plans for restoration of groundwater quality, submitted pursuant to
Paragraphs (c) and (d) of this Rule shall include:
(1) A description of the proposed corrective action and reasons for its selection.
(2) Specific plans, including engineering details where applicable, for restoring
groundwater quality.
(3) A schedule for the implementation and operation of the proposed plan.
(4) A monitoring plan for evaluating the effectiveness of the proposed corrective
action and the movement of the contaminant plume.
(i) In the evaluation of corrective action plans, the Director, or his designee shall consider
the extent of any violations, the extent of any threat to human health or safety, the extent
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of damage or potential adverse impact to the environment, technology available to
accomplish restoration, the potential for degradation of the contaminants in the
environment, the time and costs estimated to achieve groundwater quality restoration, and
the public and economic benefits to be derived from groundwater quality restoration.
(j) A corrective action plan prepared pursuant to Paragraph (c) or (d) of this Rule must
be implemented using the best available technology for restoration of groundwater quality
to the level of the standards, except as provided in Paragraphs (k), (1), and (m)jVL and (s) of
this Rule.
(k) Any person required to implement an approved corrective action plan for a
non-permitted site pursuant to this Rule may request that the Director approve such a plan
without requiring groundwater remediation to the standards. A request submitted to the
Director under this Paragraph shall include a description of site specific conditions,
including information on the availability of public water supplies for the affected area; the
technical basis for the request; and any other information requested by the Director to
thoroughly evaluate the request. In addition, the person making the request must
demonstrate to the satisfaction of the Director:
(1) that all sources of contamination and free product have been removed or
controlled pursuant to Paragraph (f) of this Rule;
(2) that the time and direction of contaminant travel can be predicted with reasonable
certainty;
(3) that contaminants have not and will not migrate onto adjacent properties, or that:
(A) such properties are served by an existing public water supply system dependent
on surface waters or hydraulically isolated groundwater, or
(B) the owners of such properties have consented in writing to the request;
(4) that the standards specified in Rule .0202 of this Subchapter will be met at a
location no closer than one year time of travel upgradient of an existing or
foreseeable receptor, based on travel time and the natural attenuation capacity of
subsurface materials or on a physical barrier to groundwater migration that exists
or will be installed by the person making the request;
(5) that, if the contaminant plume is expected to intercept surface waters, the
groundwater discharge will not possess contaminant concentrations that would
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result in violations of standards for surface waters contained in 15A NCAC 2B
.0200;
(6) that public notice of the request has been provided in accordance with Rule
.0114(b) of this Section;
(7) that the proposed corrective action plan would be consistent with all other
environmental laws.
(1) Any person required to implement an approved corrective action plan for a
non-permitted site pursuant to this Rule may request that the Director approve such a plan
based upon natural processes of degradation and attenuation of contaminants. A request
submitted to the Director under this Paragraph shall include a description of site specific
conditions, including written documentation of projected groundwater use in the
contaminated area based on current state or local government planning efforts; the technical
basis for the request; and any other information requested by the Director to thoroughly
evaluate the request. In addition, the person making the request must demonstrate to the
satisfaction of the Director:
(1) that all sources of contamination and free product have been removed or
controlled pursuant to Paragraph (f) of this Rule;
(2) that the contaminant has the capacity to degrade or attenuate under the
site-specific conditions;
(3) that the time and direction of contaminant travel can be predicted with reasonable
certainty;
(4) that contaminant migration will not result in any violation of applicable
groundwater standards at any existing or foreseeable receptor;
(5) that contaminants have not and will not migrate onto adjacent properties, or that:
(A) such properties are served by an existing public water supply system dependent
on surface waters or hydraulically isolated groundwater, or
(B) the owners of such properties have consented in writing to the request;
(6) that, if the contaminant plume is expected to intercept surface waters, the
groundwater discharge will not possess contaminant concentrations that would
result in violations of standards for surface waters contained in 15A NCAC 2B
.0200;
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(7) that the person making the request will put in place a groundwater monitoring
program sufficient to track the degradation and attenuation of contaminants and
contaminant by-products within and down gradient of the plume and to detect
contaminants and contaminant by-products prior to their reaching any existing or
foreseeable receptor at least one year's time of travel upgradient of the receptor
and no greater than the distance the groundwater at the contaminated site is
predicted to travel in five years;
(8) that all necessary access agreements needed to monitor groundwater quality
pursuant to Subparagraph (7) of this Paragraph have been or can be obtained;
(9) that public notice of the request has been provided in accordance with Rule
.0114(b) of this Section; and
(10) that the proposed corrective action plan would be consistent with all other
environmental laws.
(m) The Division or any person required to implement an approved corrective action
plan for a non-permitted site pursuant to this Rule may request that the Director approve
termination of corrective action.
(1) A request submitted to the Director under this Paragraph shall include:
(A) a discussion of the duration of the corrective action, the total project's cost,
projected annual cost for continuance and evaluation of the success of the
corrective action;
(B) an evaluation of alternate treatment technologies which could result in further
reduction of contaminant levels projected capital and annual operating costs for
each technology;
(C) effects, including health and safety impacts, on groundwater users
if contaminant levels remain at levels existing at the time corrective action is
terminated; and
(D) any other information requested by the Director to thoroughly evaluate the
request.
(2) In addition, the person making the request must demonstrate to the satisfaction of
the Director:
(A) that continuation of corrective action would not result in a significant reduction
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in the concentration of contaminants (At a minimum this demonstration must
show the duration and degree of success of existing remedial efforts to attain
standards and include a showing that the asymptotic slope of the contaminants
curve of decontamination is less than a ratio of 1:40 over a term of one year
based on quarterly sampling);
(B) that contaminants have not and will not migrate onto adjacent properties, or
that:
(i) such properties are served by an existing public water supply system
dependent on surface waters or hydraulically isolated groundwater, or
(ii) the owners of such properties have consented in writing to the request;
(C) that, if the contaminant plumes expected to intercept surface waters, the
groundwater discharge will not possess contaminant concentrations that would
result in violations of standards for surface waters contained in 15A NCAC 2B
.0200;
(D) that public notice of the request has been provided in accordance with Rule
.0114(b) of this Section; and
(E) that the proposed termination would be consistent with all other environmental
laws.
(3) The Director shall not authorize termination of corrective action for any area
that, at the time the request is made, has been identified by a state or local
groundwater use planning process for resource development.
(4) The Director may authorize the termination of corrective action, or amend the
corrective action plan after considering all the information in the request. Upon
termination of corrective action, the Director shall require implementation of a
groundwater monitoring program sufficient to track the degradation and
attenuation of contaminants at a location of at least one year's predicted time of
travel upgradient of any existing or foreseeable receptor. The monitoring
program shall remain in effect until there is sufficient evidence that the
contaminant concentrations have been reduced to the level of the standards.
(n) Upon a determination by the Director that continued corrective action would result
in no significant reduction in contaminant concentrations, and the contaminated
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groundwaters can be rendered potable by treatment using readily available and
economically reasonable technologies, the Director may designate the remaining area of
degraded groundwater RS. Where the remaining degraded groundwaters cannot be made
potable by such treatment, the Director may consider a request for reclassification of the
groundwater to a GC classification as outlined in Rule .0201 of this Subchapter.
(o) If at any time the Director determines that a new technology is available that would
remediate the contaminated groundwater to the standards specified in Rule .0202 of this
Subchapter, the Director may require the responsible party to evaluate the economic and
technological feasibility of implementing the new technology in an active groundwater
corrective action plan in accordance with a schedule established by the Director. The
Director's determination to utilize new technology at any site or for any particular
constituent shall include a consideration of the factors in Paragraph (h) of this Rule.
(p) Where standards are exceeded as a result of the application of pesticides or other
agricultural chemicals, the Director shall request the Pesticide Board or the Department of
Agriculture to assist the Division of Environmental Management in determining the cause
of the violation. If the violation is determined to have resulted from the use of pesticides,
the Director shall request the Pesticide Board to take appropriate regulatory action to
control the use of the chemical or chemicals responsible for, or contributing to, such
violations, or to discontinue their use.
(q) The approval pursuant to this Rule of any corrective action plan, or modification or
termination thereof, which permits the migration of a contaminant onto adjacent property,
shall not affect any private right of action by any party which may be effected by that
contamination.
(r) If the increase in the concentration of a substance in excess of the standard resulted in
whole or in part from a release from a commercial or noncommercial underground storage
tank as defined in G.S. 143-215.94A. any person required to implement an approved
corrective action plan pursuant to this Rule and seeking reimbursement for the Commercial
or Noncommercial Leaking Petroleum Underground Storage Tank Cleanup Funds shall
implement a corrective action plan meeting the requirements of Paragraphs (V) or (11 of this
Rule unless such a person demonstrates to the Director that:
(1) contamination resulting from the discharge cannot qualify for approval of a plan
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based on the requirements of the Paragraphs; or
(2) the cost of making such a demonstration would exceed the cost of implementing a
corrective action plan submitted pursuant to Paragraph (c) of this Rule.
(s) If the increase in the concentration of a substance in excess of the standard resulted in
whole or in part from a release from a commercial or noncommercial underground storage
tank as defined in G.S. 143-215.94A. the Director may require any person implementing or
operating a previously approved corrective action plan pursuant to this Rule to:
(1) develop and implement a corrective action plan meeting the requirements of
Paragraphs (k) and (11 of this Rule: or
(2) seek discontinuance of corrective action pursuant to Paragraph Cm) of this rule.
History Note: Authority G.S. 143-215.2; 143-215.3(a)(1); 143-215.94A: 143-215.94V;
143B-282;
Eff. August 1, 1989;
Amended Eff. October 1, 1993; September 1, 1992.
Temporary Amendment Eff. January 2, 1996
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15A NCAC 2L IMPLEMENTATION GUIDANCE
TABLE OF CONTENTS
SECTION: .0100 - GENERAL CONSIDERATIONS
.0103 POLICY GUIDANCE 2
. 0104 RS DESIGNATION GUIDANCE 3
.0106 CORRECTIVE ACTION GUIDANCE 5
.0106 ALTERNATIVE CORRECTIVE ACTION STRATEGIES 8
.0106 (k) 8
.0106(1) 11
.0106 (m) 14
GENERAL INFORMATION 17
Source Control 17
Natural Attenuation of Groundwater 18
Natural Attenuation of Bedrock Contamination 20
Natural Attenuation of Soils 21
Selecting Contaminants of Concern 23
Estimating Aquifier Parameters 23
Modeling of Contaminant Fate and Transport 24
Identifying Potential Receptors 25
Monitoring 27
Public Notification 27
Corrective Action Plan Preparation and Submittal 28
Reimbursement: State Underground Storage Tank
Trust Funds 29
.0114 NOTIFICATION REQUIREMENTS 30
Effective Dates:
October 1, 1993
November 4, 1993 - Requirements for .0103(e)
January 1, 1994 - PE/LG Sign Off for UST Closure Reports
1,000 copies of this public document were printed at a cost of $508.40 or SO.51 per copy. December ] 995.
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DIVISION OF ENVIRONMENTAL MANAGEMENT
15A NCAC 2L IMPLEMENTATION GUIDANCE
.0103 POLICY GUIDANCE
Purpose of Rule
The Rule defines the general policy of the Environmental Management Commission (EMC)
with regard to groundwater protection and use. The Rule also restricts site characterizations and
corrective actions to persons licensed by appropriate professional licensing boards.
(a) This is a statement of general policy. The term 'significant' found in the third sentence has no
regulatory meaning. The Paragraph is considered to be a statement of fact given to make the reader
aware of groundwater conditions in the state and is for informational purposes. The statement does
not require any regulatory action or activity toward any person or entity and as a result is not
considered regulatory.
(b) Considered to be self-explanatory.
(c) Considered to be self-explanatory.
(d) Considered to be self-explanatory.
(e) Any investigation, assessment, interpretation, characterization, or corrective action plan will
require appropriate licensing as specified in 0103(e). Monitoring plans required in .0110 and .0106,
and monitoring reports required in .0106 which contain the interpretation of monitoring data likewise
require appropriate licensing. Excluded from these requirements are emergency response reports,
initial response reports, 24-hour reports, and reports which serve only to transmit information and
do not contain data interpretation. Examples of reports and forms submitted to the Division which
must be signed and sealed by an individual properly licensed by the state include, but are not limited
to:
1) UST Closure Reports (the site assessment portions only)
2) Initial Abatement and Site Check (20-day report)
3) Initial Site Characterization (45-day report)
4) CSA - Comprehensive Site Assessment
5) CAP - Corrective Action Plan
6) Monitoring and Free Product Reports (those which include the interpretation of
data)
7) Design of vapor and groundwater monitoring systems
8) RS Designation Applications (15A NCAC 2L .0104)
9) Variance Applications (15A NCAC 2L .0113)
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UST Closure reports, Initial Site Characterization Reports, Initial Abatement and Site Check
Reports, CSAs, Design of Groundwater or Vapor Monitoring Systems, Monitoring Reports, and
CAPs that do not contain plans or designs for active groundwater remediation systems may be
prepared and sealed by either a North Carolina Professional Engineer or Licensed Geologist. Active
groundwater remediation is defined to mean any remediation method which employs the use of pumps
to move liquids and/or gases at a site. All plans and specifications required under .0106 and intended
for use in construction o£ or for obtaining regulatory authorization to construct an active remediation
system must be prepared under responsible charge of a Professional Engineer and must bear the seal
of the same. However, preliminary or conceptual site restoration plans which are not intended for
use in construction or for obtaining regulatory approval may be prepared by either a Professional
Engineer or a Licensed Geologist.
.0104 RESTRICTED DESIGNATION (RS) POLICY GUIDANCE
Purpose of Rule
The Rule establishes a temporary groundwater designation (RS) that is intended to warn the
public that groundwater so designated may not be suitable for use as a source of drinking water
without treatment. If the groundwater remediation effort is successful, the groundwater will be
restored to its original classification. If remedial efforts are unsuccessful, the groundwater may be
reclassified as GC.
When groundwater has been contaminated as a result of man's activities, the Director may
designate an area of groundwater as RS under any of the following conditions:
-the Director has approved a corrective action plan, or termination of corrective action, and
it is evident that the approved plan will not result in restoration of the resource without an
extended period of time; or
-a statutory variance to the groundwater standards specified in 15ANCAC .0202 has been
granted in accordance with 15ANCAC 2L .0113.
Additionally, any groundwater occurring in an area previously defined within a Compliance Boundary
associated with a waste disposal permit is automatically designated RS.
It has been noted that .0104(c), (d), and (e) could be interpreted to conflict with the
Compliance Boundary requirements found in 15A NCAC 2L .0107. In all cases the requirements of
.0107 will take precedence over those specified in .0104(c), (d), and (e).
(a) Considered to be self-explanatory.
(b) Considered to be self-explanatory.
(c) The determination of the RS boundary must be performed using predictive calculations or
computer modeling of environmental contaminant fate and transport. A description of the
methodology used, assumptions made and a discussion of the applicability of the modeling to the site
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are required. All supporting technical data and modeling results must be included with the request.
Please refer to Modeling of Contaminant Fate and Transport in the General Information section for
further guidance on computer modeling and requisite documentation.
(d) The monitoring program must comply with .0103(e) and must be sufficient to:
-determine the quality of the groundwater within the contaminant plume,
-determine the movement of the plume, and
-ensure that the conditions established for the approved RS area are maintained.
The State may require the installation of additional monitoring wells as conditions change in
the RS area.
The term 'increase' refers to an escalation of any chemical parameter concentration above the
level determined for the plume at the time the RS designation was approved. An increase in
contaminant levels will be reviewed by the Director or his designee. Additional monitoring or
remedial action may be required if it is determined or suspected that the increase represents:
-another release which may or may not be associated with the original contaminant
release,
-degradation or transformation of the original contaminant into new or related chemical
compounds, or
-unknown conditions or circumstances.
(e) The individual responsible for the contamination is considered the 'applicant' for the purposes of
this Rule. If a responsible party cannot be identified and the Division initiates the RS designation for
an area of groundwater, then the Division shall ensure that all public notification requirements have
been met.
(f) The individual responsible for the contamination must submit to the Division any information
specified in 0104(f)(2) necessary to complete the required public notice.
(1) The Chief Administrative Officer is considered to be the Mayor, Chairman of the
County Commissioners, the County Manager, the City Manager or other individual
of equal or similar position as appropriate.
(2) Considered to be self-explanatory.
(3) Considered to be self-explanatory.
(4) Considered to be self-explanatory.
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.0106 CORRECTIVE ACTION GUIDANCE
Purpose of Rule
The Rule defines the following:
1) notification and corrective action requirements for permitted and non-permitted
facilities;
2) the kinds of data required for approval of alternate cleanup levels, natural
remediation, or termination of corrective actions;
3) the conditions in which contaminated groundwater may be designated RS or
reclassified as GC; and
4) the conditions in which current remedial activities shall be abandoned in favor of
new technologies.
(a) Considered to be self-explanatory.
(b) This Paragraph refers to the discovery of a sudden and unexpected release of a contaminant into
the environment. The term 'immediate' is defined as being within a 24 hour period unless there are
extenuating circumstances. If the release occurs at a time when it is not possible to report the release
to the Division within 24 hours due to weekends or holidays, the morning of the next business day
is acceptable. The Paragraph also defines the reporting requirements to the Division of
Environmental Management. It has no bearing upon, nor does it affect any rule or regulation defining
additional reporting requirements by North Carolina General Statute, the Division of Emergency
Management or any federal agency.
(c) This Paragraph is applicable to all contamination incidents resulting from activities which have not
been permitted by the Division, including all non-permitted facilities. The term 'immediate' is defined
as being within a 24-hour period unless there are extenuating circumstances. If the release occurs at
a time when it is not possible to report the release to the Division within 24 hours due to weekends
or holidays, the morning of the next business day is acceptable. The Paragraph also defines the
reporting requirements to the Division of Environmental Management. It has no bearing upon, nor
does it affect any rule or regulation defining additional reporting requirements by North Carolina
Statute, the Division of Emergency Management or any federal agency.
(1) Considered to be self-explanatory.
(2) Non-aqueous phase liquids (free product) must be recovered and controlled to the
maximum extent feasible. Corrective actions must be initiated as soon as possible
following discovery of free product.
(3) Reports must be prepared in accordance with 0103(e).
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(4) Corrective action plans must be prepared in accordance with .0103(e). In addition,
each CAP must have a properly executed GW-100(c) form, entitled Certification
for the Submittal of a Corrective Action Plan Under 15A NCAC 2L 0106(c).
attached to the front. Either an original or a legible photocopy of an original form
must be used; a CAP will not be accepted if a retyped version of the GW-100(c)
form is used. The GW-100(c) forms have been revised since the original November
1993 printing. Copies of current forms are available from the Groundwater
Section's regional offices or Pollution Control Branch. Each item on the GW-100(c)
certification form must be initialed by hand and the form must bear the seal and
signature of the certifying North Carolina-licensed professional [see Section
0103(e) for clarification on the professional jurisdictions of Professional Engineers
and Licensed Geologists]. In addition, the CAP must display the seal and signature
of the certifying licensed professional.
The term 'prepared' as used on the GW-100(c) form should be construed to
mean that the CAP has been prepared under the responsible charge of the certifying
licensed professional pursuant to North Carolina Statutes. The term is included on
the form because Professional Engineers and Licensed Geologists are prohibited from
certifying plans prepared by individuals not working under their direct control and
supervision.
The responsible party must report the cause and extent of the release and the
corrective actions taken and intended to be taken to mitigate threats to human health
and the environment to the local Health Director and the chief administrative officer
of the local political jurisdictions [see Section .0114(a)],
(d) This Paragraph is applicable to violations resulting from an activity performed under authority of
a permit issued by the Division. Reports and corrective action plans must be prepared in accordance
with .0103(e).
(e) Considered to be self-explanatory.
(f)
(1) Considered to be self-explanatory.
(2) Considered to be self-explanatory.
(3) All primary sources of contamination (e.g., leaking storage containers, waste
stockpiles, etc.) must be removed, or remediated and controlled. Here 'control'
means demonstrating the physical ability to direct restrain or dominantly influence the
contaminated media and free product (non-aqueous phase liquid). If needed, initial
abatement actions taken to remove, remediate or control primary source(s) of
contamination must be initiated prior to, or concurrent with the site assessment
activities required under 0106(c) and (d). The goal of free product recovery efforts
must be recovery to the maximum extent feasible. Please refer to Source Control in
the General Information section for further guidance on the meaning of control
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(4) All secondary sources of contamination (e.g., non-aqueous phase liquids and
contaminated soil) must be either remediated (removed or treated), or controlled.
Here, 'controlled' means demonstrating the physical ability to direct, restrain or
dominantly influence the contaminated media and free product (non-aqueous
phase liquid). If needed, initial abatement actions taken to remediate or control
secondary source(s) of contamination must be initiated prior to, or concurrent with
the site assessment activities required under .0106(c) and (d). The goal of free
product recovery efforts must be to recover product to the maximum extent feasible.
Please refer to Source Control in the General Information section of this document
for further guidance on the meaning of control.
(g) Reporting must be done in accordance with the provisions of 0103(e).
(h) All corrective action plans are submitted pursuant to Paragraph (c) or (d) of this Rule and must
meet the requirements of .0103(e) and ,0106(j). Please refer to Monitoring in the General
Information section for guidance and policy related to monitoring of corrective actions.
(i) Considered to be self-explanatory.
(j) All corrective action plans are submitted pursuant to Paragraph (c) or (d) of this Rule. This
Paragraph: (1) reiterates the general Rule that cleanup must restore groundwater to prerelease
conditions, and (2) adds the requirement that plans submitted under Paragraphs (c) and (d) must use
the best available technology. Best Available Technology (BAT) is considered to be that technology
which achieves the specified cleanup goals within a reasonable time frame at the most economical
cost per unit of cleanup. For example, a remedial technology which has the capacity to clean up a
site in nine months at a cost of 51,000,000 would not be considered the BAT if an alternative
technology existed which would accomplish the same goals in twelve months at a cost of $10,000.
For those sites at which BAT is required, the Director, or his designee, will review the CAPs to
determine if the requested time frames for remedial activities are appropriate and if the technologies
proposed can be considered to be the BAT for the site in question.
The Paragraph also recognizes the exceptions to these two general requirements as set out
in Paragraphs (k), (1), and (m). Paragraph (1) does not require the use of BAT, but requires
restoration to the standards specified in .0202 by the natural processes of degradation and attenuation
of contaminants.
Paragraphs (k) and (m) allow for termination of active cleanup prior to achieving the
standards in .0202, but contain no exception to the requirement to use BAT. For sites being
remediated under Paragraphs (k) and (m), site monitoring will be required until the standards have
been achieved by natural attenuation processes.
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ALTERNATIVE CORRECTIVE ACTION STRATEGIES
0106(k), (1) and (m)
(k) The purpose of this Paragraph is to provide a means by which a responsible party may seek
approval to actively remediate groundwater to a level other than the standards specified in .0202.
Approval of a corrective action plan (CAP) under this Paragraph will be considered only for non-
permitted sites for which atiive groundwater remediation, other than by natural processes, has already
been or is proposed to be implemented. Responsible parties will be required to use the Best Available
Technology until the alternate standards established under Paragraph (k) are achieved. Please refer
to Paragraph (j) for the definition of Best Available Technology.
Requests for approval of remediation to alternate standards will be made as part of the
proposed CAP submitted pursuant to Paragraph (c) of this Rule. The request must be based on
current site data. A description of site conditions must be included with the CAP, however,
previously submitted CAPs, site assessment reports, and monitoring report(s) should be referenced.
All critical data should be summarized in figures and tables. The items enumerated in 0106(k) are
considered the minimum information needed to consider such a request and should be submitted with
the CAP in the order presented in the Rule. The Director may request additional information. In
determining whether to approve a CAP submitted under ,0106(k), the Director will apply the standard
for approval of all corrective action plans set out in Paragraph (i).
The CAP must include a list of all contaminants detected at the site in concentrations which
exceed the standards specified in .0202 and their respective proposed cleanup levels. Justification
must be provided that the recommended cleanup levels are protective of human health and the
environment.
The active remediation phase will be followed by a period of natural attenuation and
x monitoring until the standards have been achieved. Therefore, it should be understood that
0106(k)(4) and 0106(k)(5) define the minimum degree to which contaminants must attenuate in
order for the site to be considered eligible for the provisions of 0106(k), and that monitoring will
be required to verify that natural attenuation is occurring. In addition, the proponent must
demonstrate to the satisfaction of the Director that the remaining contamination will be remediated
to the standards by natural processes within an acceptable period of time. The period of time
considered acceptable for remediation wil] depend on a number of site-specific parameters; therefore,
it will vary between sites. Please refer to Natural Attenuation of Groundwater and Monitoring in the
General Information section for guidance and policy on demonstrating natural attenuation.
Documentation that groundwater in the area of the plume has not been identified for future
use or development by a state or local government planning process must be included in the CAP.
This information may be available from the local county or municipal planning offices, local utility
commissions, or from the Department of Environment, Health and Natural Resources, Division of
Water Resources. An example of documentation which would be satisfactory to meet this
requirement is a signed letter from the appropriate governing body stating that no plans are on record
for the development of groundwater resources in the area. Alternatively, the CAP proponent may
write a letter for the appropriate government representative to sign which confirms that there are no
plans for groundwater development in the vicinity of the site. Another option may be to peruse the
appropriate government files and planning documents and copy the appropriate portions which serve
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as evidence that groundwater in the area of the plume will not be developed because another type of
development is planned for the area (e.g., a large shopping mall is slated for construction over the
contamination area and will be served by municipal water).
Determining Alternate Standards
The CAP must present a listing of proposed alternate cleanup levels for all contaminants
detected above 2L standards. Once these levels are achieved, active remedial actions may terminate.
One approach to determining appropriate alternate standards for a site is to recognize that the
contamination will not be permitted to adversely impact any receptor. First, determine acceptable
contaminant concentrations for groundwater at all potentially impacted receptor(s). Then, use
contaminant fate and transport calculations or modeling to "back calculate" the cleanup goals for the
source area of the plume that will allow natural attenuation processes to reduce the concentrations
to acceptable levels by the time the groundwater reaches the receptor(s).
Another method of determining alternate standards which may be acceptable is to base the
target concentrations on the projected effectiveness of the most cost-effective remediation technique
that is applicable to the site. Target cleanup levels derived in this manner would have to be justified
to be protective of human health and the environment.
(1) All sources of contamination and free product have been removed or controlled
pursuant to 15A NCAC 2L .0106 (fi. and 15A NCAC 2N .0703 and .0705. if
applicable.
Demonstrating complete delineation of the soil contamination and non-aqueous
phase liquid (secondary sources of contamination) in accordance with Groundwater
Section Guidelines for the Investigation and Remediation of Soils and Groundwater
and providing an acceptable plan for the remediation or control of all sources may
satisfy the meaning of 'controlled' as it pertains to this Rule. Please refer to Section
.0106(f)(4) and Source Control in the General Information section for further
guidance on control of contamination sources.
(2) Time and direction of contaminant travel can be predicted with reasonable certainty.
The technical basis for the determination of rate and direction of groundwater
flow used in modeling and/or calculations must be provided. The direction of
contaminant transport should be predicted based on groundwater hydraulic head
measurements and should take all nearby pumping, recharge and discharge influences
into account. The rate of contaminant transport should be estimated directly from
empirical site data or predicted through the use of an appropriate model. Please see
Modeling of Contaminant Fate and Transport and Estimating Aquifier Parameters in
the General Information section for additional information.
Site monitoring will be required to determine if natural attenuation is
occurring, and to test the validity of the conceptual model for the site. Please refer
to Monitoring in the General Information section of this document and Rule .0110
for additional information regarding monitoring plans and reports.
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(3) Migration of contaminants onto adjacent properties.
In order to be considered for approval, the CAP must demonstrate that at
least one of the three conditions described in subsection (k)(3) is true. The term
'served' in (k)(3)(A) means connected to an approved public water supply.
Suitable water supplies must meet the regulatory definition of a public water
supply and be approved by the Public Water Supply Section of the Division of
Health Resources. Documentation, preferably a letter from the utility company,
should be provided indicating which households are on public water supply. The
CAP must certify that the public water supply is dependent on surface waters or
hydraulically isolated groundwater, as applicable.
A map must be provided that shows the current plume boundary as well as all
adjacent properties and those down gradient properties where the plume is
predicted to migrate. A tax map of the area would be ideal for this purpose. Any
supply wells on those properties must be located on the map. An indication of which
properties are predicted to be impacted and the technical basis for this determination
must also be provided. In addition, a map must be provided which shows the
predicted maximum extent of the plume. When applicable under .0106(k)(3)(B), the
CAP must include documentation of the property owner's written consent allowing
contamination to migrate onto their property. Please see Public Notification
in the General Information Section and Section .0114 (b) for additional information.
(4) The groundwater standards specified in 2L.0202 will be met at a location no closer
than one year time of travel up gradient of an existing or foreseeable receptor.
All existing and foreseeable receptors must be identified on the base
map. Receptors may include but are not limited to utility lines, basements, elevator
shafts, public and domestic supply wells, surface waters, and regions of groundwater
that have been identified for planned resource development by state or local
governments. If a property is to be developed in the future and is served by a public
water supply, then planned domestic supply wells might not be considered receptors.
Please refer to Identifying Potential Receptors in the General Information section for
information on the definition of receptors.
(5) Groundwater discharge will not result in the violation of a surface water quality
standard specified in 15A NCAC 2B .0200.
If the groundwater plume is predicted to discharge to surface waters,
the CAP must document the technical basis for predicting that such discharge will
not result in the violation of a surface water quality standard or criteria, as applicable.
The DEM classification of the surface water body (as specified in 15A NCAC 2B)
must be included in the CAP. The DEM's Water Quality Section staff may be
contacted for information pertaining to surface water classifications, standards and
criteria.
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If the plume is already discharging to surface waters, the CAP should
include recent laboratory analytical results from that water body. Samples should
be collected from upstream and downstream of the discharge area, if applicable.
All surface water quality data should be provided in table format with lab reports,
sample locations and chain of custody forms provided.
(6) Public notice provided in accordance with ISA NCAC 2L .0114(b).
Please refer to Public Notification in the General Information section for
policy regarding public notification requirements.
(1) The purpose of this Paragraph is to allow for natural remediation of contaminated groundwater
until such time as the affected groundwater conforms with the standards specified in .0202. This
Paragraph applies only to sites where the contamination resulted from a non-permitted activity, and
does not apply if the site requires any type of ongoing active groundwater remediation. However,
for sites which have already undergone active groundwater remediation and which meet the criteria
specified in .0106(1), approval may be requested to remediate remaining contamination by natural
attenuation processes.
Documentation that groundwater in the area of the plume has not been identified for future
use or development by a state or local government planning process must be included in the CAP.
This information may be available from the local county or municipal planning offices, local utility
commissions, or from the Department of Environment, Health and Natural Resources, Division of
Water Resources. An example of documentation which would be satisfactory to meet this
requirement is a signed letter from the appropriate governing body stating that no plans are on record
for the development of groundwater resources in the area. Alternatively, the CAP proponent may
write a letter for the appropriate government representative to sign which confirms that there are no
plans for groundwater development in the vicinity of the site. Another option may be to peruse the
appropriate government files and planning documents and copy the appropriate portions which serve
as evidence that groundwater in the area of the plume will not be developed because another type of
development is planned for the area (e.g., a large shopping mall is slated for construction over the
contamination area and will be served by municipal water).
In order to be granted approval to remediate any site by natural attenuation processes, it must
be demonstrated to the satisfaction of the Director that the contaminant(s) in question can be
remediated to .0202 standards within an acceptable period of time. The period of time considered
acceptable for remediation will depend on a number of site-specific parameters; therefore, it will vary
between sites. Please refer to Natural Attenuation of Groundwater in the General Information section
for additional information and guidance. In determining whether to approve a CAP, the Director will
apply the standard for approval of all corrective action plans set out in Paragraph (i).
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(1) All sources of contamination and free product have been removed or controlled pursuant to
15A NCAC 2L .0106 ffl. and 15A NCAC 2N .0703 and .0705. if applicable.
Demonstrating complete delineation of the soil contamination and non-aqueous phase
liquid (secondary sources of contamination) in accordance with Groundwater Section
Guidelines for the Investigation and Remediation of Soils and Groundwater and providing an
acceptable plan for the remediation of those sources may satisfy the meaning of'controlled'
as it pertains to this Rule. Please refer to Section .0106(f)(4) and Source Control in the
General Information section for further discussion on control of contamination sources.
(2) The contaminant has the capacity to degrade or attenuate under site-specific conditions.
Please refer to the Natural Attenuation of Groundwater. Natural Attenuation
of Soil, and Natural Attenuation of Bedrock Contamination in the General Information
section for further information.
(3) Time and direction of contaminant travel can be predicted with reasonable certainty.
The direction of contaminant transport should be predicted based on groundwater
hydraulic head measurements and should take all nearby pumping, recharge and discharge
influences into account. The technical basis for determining values for aquifer parameters used
in modeling of contaminant transport must be provided in the CAP. The rate of contaminant
transport should be estimated directly from empirical site data or predicted through the use of
an appropriate model. Please see Modeling of Contaminant Fate and Transport and Estimating
Aquifier Parameters in the General Information section for additional guidance.
(4) Contaminant migration will not result in any violation of groundwater standards at
any existing or foreseeable receptor.
All existing and foreseeable receptors must be identified on the base map.
Receptors may include but are not limited to utility lines, basements, elevator shafts,
public and domestic supply wells, surface waters, and regions of groundwater that
have been identified for planned resource development by state or local governments.
If a property is to be developed in the future but is served by a public water supply,
then planned domestic supply wells might not be considered receptors. Please refer
to • Identifying Potential Receptors in the General Information section for information
on the definition of receptors.
(5) Migration of contaminants onto adjacent properties.
In order to be considered for approval, the CAP must demonstrate that at least
one of the three conditions described in subsection (1)(5) is true. The term 'served' in
(1)(5)(A) means connected to an approved public water supply. Suitable water supplies must
meet the regulatory definition of a public water supply and be approved by the Public
Water Supply Section of the Division of Health Resources. Documentation, preferably
a letter from the utility company, should be provided indicating which households are
on public water supply. The CAP must certify that the public water supply is dependent on
surface waters or hydraulically isolated groundwater, as applicable.
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A map must be provided that shows the current plume boundary as well as all adjacent
properties and those down gradient properties where the plume is predicted to migrate.
A tax map of the area would be ideal for this purpose. Any supply wells on those properties
must be located on the map. An indication of which properties are predicted to be impacted
and the technical basis for this determination must also be provided. In addition, a map must
be provided which shows the predicted maximum extent of the plume. When applicable under
.0106 (1)(5)(B), the CAP must include documentation of the property owner's written consent
allowing contamination to migrate onto their property.
(6) Groundwater discharge may not result in the violation of a surface water quality specified in
15ANCAC 2B.0200.
If the groundwater plume is predicted to discharge to surface waters, the CAP
must document the technical basis for predicting that such discharge will not result in
the violation of a surface water quality standard or criteria, as applicable. The DEM
classification of the surface water body pursuant to 15A NCAC 2B must be specified
in the CAP. The DEM's Water Quality Section staff may be contacted for information
pertaining to surface water classifications, standards and criteria.
If the plume is already discharging to surface waters, the CAP should include
recent laboratory analytical results from that water body. Samples should be collected
from upstream and downstream of the discharge area, if applicable. All surface water
quality data should be provided in table format with lab reports and chain of custody
forms provided.
(7) Groundwater monitoring program.
A groundwater monitoring program sufficient to track the migration, degradation and
attenuation of contaminants and contaminant byproducts must be included in the CAP. Rule
.0110 specifies the requirements of monitoring plans and reports. Proposed monitoring wells
must include one or more well(s) placed in the zone defined to be:
-at least one year of groundwater travel time up gradient of the closest,
down gradient existing or foreseeable receptor; and
-no further down gradient from the current leading edge of the plume than
the distance groundwater is predicted to travel in five years.
Please refer to Natural Attenuation of Groundwater and Monitoring in the General
Information section for additional information on site monitoring.
(8) Access agreements.
Documents must be included with the CAP documenting that all necessary
access agreements needed to monitor groundwater quality have been or can be obtained.
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If access necessary for monitoring natural attenuation cannot be obtained, the site will not be
considered approvable under .0106(1).
(9) Public notice provided in accordance with 15A NCAC 2L .0114(bV
Please refer to Public Notification in the General Information section for information
regarding public notification.
(m) The purpose of this Paragraph is to provide a mechanism whereby a responsible party may seek
approval to terminate active remediation prior to achieving the groundwater standards. A corrective
action plan submitted pursuant to this Paragraph must demonstrate that continued operation of the
remediation system will not result in a significant decrease in dissolved contaminant concentrations.
The items enumerated in .0106(m) are considered the minimum information needed to consider such
a request and should be submitted with the CAP in the order presented in the Rule. The Director may
request additional information. In determining whether to approve a CAP, the Director will apply the
standard for approval of all corrective action plans set out in Paragraph (i).
It should be understood that 0106(m)(4) defines the minimum degree to which a contaminant
must degrade or attenuate in order for termination of corrective action to be approved. If a
contaminant plume does not have the capacity to achieve compliance within the defined time of travel,
the site is not eligible for the provisions specified in 0106(m). Please refer to Natural Attenuation of
Groundwater in the General Information section for additional guidance.
(1) Considered to be self-explanatory.
(2)(A) Continued corrective action will not significantly reduce contaminant concentrations.
The asymptotic slope described in this Paragraph is used as a means
of determining the rate at which remediation is progressing. In order to qualify for
the provisions in 0106(m), a showing must be made that current remedial efforts
have produced their maximum result in terms of lowering the concentration of
contaminant compounds in groundwater. The slope is determined from the curve
representing the concentration of the dissolved contaminants over time. The
contaminant concentrations must be in milligrams per liter and the time scale must be
months. The absolute value of the slope of the curve of decontamination (which is a
negative slope) must be less than or equal to one unit of chemical contamination
remediated during the course of 40 months, and greater than or equal to zero.
Therefore, if the absolute value of the slope is calculated to be equal to or less than a
ratio of 1:40, then the stipulations of 0106(m)(2)(A) have been met. Please note that
the slope of the curve must be calculated mathematically and may not be determined
by measuring directly from a graph. However, a graphical representation of the data
must be included with the CAP.
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A minimum of four quarters of monitoring data must be used to graph and
evaluate the curve of decontamination. Using the ratio of one milligram per
liter over 40 months, the decrease in the concentration of a contaminant in groundwater
cannot exceed 300 micrograms per liter in the previous 12 month period to be eligible
for approval under ,0106(m). If a "best fit" curve is used to fit the data, the CAP must
include an explanation of the type of statistical analysis performed.
The demonstration of asymptotic slope must be made for each contaminant
detected in concentrations exceeding the groundwater standards listed in .0202.
The demonstration cannot be based on total organic compounds, total BTEX,
total petroleum hydrocarbons, etc. Additionally, the slope determination must
be made for data from all existing monitoring wells which have had contaminants
detected in concentrations exceeding the standards. Groundwater samples
used for determining the slope of decontamination must be collected from properly
constructed monitoring wells; data collected from remediation wells cannot be
used. Please note that improperly designed, constructed or operated remediation
systems may render a site ineligible for the provisions of Paragraph (m).
(2)(B) Migration of contaminants onto adjacent properties.
In order to be considered for approval, the CAP must demonstrate that at
least one of the three conditions described in subsection (m)(2) is true. The term
'served' in (m)(2)(B) means connected to an approved public water supply.
Suitable water supplies must meet the regulatory definition of a public water
supply and be approved by the Public Water Supply Section of the Division of Health
Resources. Documentation, preferably a letter from the utility company, should be
provided indicating which households are on public water supply The CAP must
certify that the public water supply is dependent on surface waters or hydraulically
isolated groundwater, as applicable.
A map must be provided that shows the current plume boundary as well as all
adjacent properties and those down gradient properties within and contiguous to
the area where the plume is predicted to migrate. A tax map of the area would be
ideal for this purpose. Any supply wells on those properties must be located on the
map. An indication of which properties are predicted to be impacted and the technical
basis for this determination must also be provided. In addition, a map must be provided
which shows the predicted maximum extent of the plume. When applicable under
0106(m)(2)(B)(ii), the CAP must include documentation of the property owner's
written consent allowing contamination to migrate onto their property.
(2)(C) Groundwater discharge will not result in the violation of a surface water quality
standard specified in 15ANCAC 2B .0200.
If the groundwater plume is predicted to discharge to surface waters, the
CAP must document the technical basis for predicting that such discharge will not
result in the violation of a surface water quality standard. The DEM classification
of the surface water body pursuant to 15A NCAC 2B must be specified in the
CAP. The DEM's Water Quality Section staff may be contacted for information
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pertaining to surface water classifications, standards, and criteria.
If the plume is already discharging to surface waters, the CAP should
include laboratory analytical results of recent sampling of that water body.
Analyses should include samples from upstream and downstream of the discharge
area, if applicable. All surface water quality data should be provided in table
format with a description of sampling locations, lab reports and chain of custody
forms also included.
(2)(D) Public notice provided in accordance with 15A NCAC 2L .0114(bV
Please refer to Public Notification in the General Information section for
policy regarding public notification requirements.
(3) Groundwater development not planned.
Documentation that groundwater in the area of the plume has not been
identified for future use or development by a state or local government planning
process must be included in the CAP. This information may be available from the
local county or municipal planning offices, local utility commissions, or from the
Department of Environment, Health and Natural Resources, Division of Water
Resources. An example of documentation which would be satisfactory to meet
this requirement is a signed letter from the appropriate governing body stating that
no plans are on record for the development of groundwater resources in the area.
Alternatively, the CAP proponent may write a letter for the appropriate government
representative to sign which confirms that there are no plans for groundwater
development in the vicinity of the site. Another option may be to peruse the
appropriate government files and planning documents and copy the appropriate
portions which serve as evidence that groundwater in the area of the plume will not
be developed because another type of development is planned for the area (e.g., a
large shopping mall is slated for construction over the contamination area and will
be served by municipal water).
(4) Groundwater monitoring program.
A groundwater monitoring plan sufficient to track the migration, degradation
and attenuation of contaminants and contaminant byproducts at a location at least one
year time of travel up gradient of any existing of foreseeable receptor must be provided
in the CAP. The monitoring requirement should be construed to mean that the
migration of the contaminant plume must be restricted. More specifically, the
contaminant plume must conform to the groundwater standards specified in .0202 at
the location one year's predicted time of travel up gradient of any receptor. Please refer
to Monitoring in the General Information section for further policy and guidance related
to monitoring. Additionally, Natural Attenuation of Groundwater in the General
Information section provides guidance on monitoring sites undergoing natural
attenuation.
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General Information
Source Control
Primary and secondary sources of contamination are required by 0106(f) to be removed or
controlled. 'Control' is defined to mean the physical ability to direct, restrain or dominantly influence
non-aqueous phase liquid (free product) and other source(s) of contamination. Demonstrating
complete delineation of all soil contamination and providing an acceptable plan for its remediation may
satisfy the meaning of'control' as it pertains to .0106. Similarly, providing continued delineation of
non-aqueous phase liquid and providing an acceptable plan for its continued recovery and containment
may satisfy the meaning of control of free product.
Contamination that is trapped in the capillary fringe and saturated zone may continue to leach
to groundwater, resulting in unreasonably long remediation and monitoring periods. The effect of
residual contamination is especially critical if natural attenuation processes will be relied on for
remediation. Therefore, the assessment of contaminant sources should include the delineation
of any significant soil contamination and free product existing in the capillary fringe or
saturated zones near the source area or "hot spot" of the plume. If trapped or residual soil
contamination is discovered in or near the saturated zone, the CAP should include a discussion of
options for its remediation. A cost-benefit analysis which takes long-term monitoring into
consideration should be provided for viable remedial options.
It is important to note that soil contamination which occurs down gradient of the source area
in a relatively narrow, horizontal zone at or near the water table surface (i.e., in the capillary fringe)
may have resulted from the adsorption of dissolved contaminants to the soil. This soil contamination
is considered to be the result of the migration of the. groundwater contamination; therefore, it is not
generally considered a source of contamination.
In general, the use of impermeable barriers (caps) will not be approved as a method for
exerting control over contamination source areas. However, in some cases where site conditions
preclude the possibility of source remediation and an impermeable barrier exists, the impermeable
barrier may be considered to provide control of the secondary contamination sources. However, it
must be demonstrated that that the CAP will prevent water from leaching contaminants from the
source area and causing groundwater contamination in excess of the standards specified in .0202. The
CAP must include a discussion on the expected effectiveness, integrity and cost of the barrier over an
extended period of time. A discussion of the projected future uses of the site, including potential
exposure pathways, must also be provided in the CAP. Additionally, the proponent should be aware
that a low permeability cap may limit the availability of terminal electron acceptors and nutrients
necessary for effective in situ biodegradation.
One example where a barrier or cap may be approved to control secondary soil contamination
is a situation where a No. 6 fuel oil release has occurred in clayey soil under a manufacturing facility.
In this example, the fuel does not contain enough volatile constituents to effectively strip using a
vacuum extraction technique. Furthermore, due to the nature of the soil and the contamination, the
rate of natural attenuation will be slow. Demolition of the building in order to excavate the soil may
be cost-prohibitive, and leaving the building in place could serve as a barrier to prevent leaching of
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contaminants to the groundwater. If it can be demonstrated that leachate will not cause a groundwater
standards violation, then the soil contamination may be considered to be controlled by the presence
of the low permeability cap.
Natural attenuation may be an approved method of remediation or control for soil
contamination under some circumstances. Please refer to Natural Attenuation of Soil for policy
guidance on the applicability of natural attenuation to soil contamination.
Natural Attenuation of Groundwater
The CAP should reference the publication(s) which indicate that the contaminants have the
capacity to attenuate under appropriate conditions. For example, research has shown that the BTEX
compounds (benzene, toluene, ethyl benzene, xylenes) can readily biodegrade under aerobic
conditions, and may degrade at lower rates in some anaerobic environments. In contrast,
trichloroethylene (TCE) has not been demonstrated to readily degrade under aerobic conditions but
may degrade in some anaerobic settings. Further, many dissolved organic and inorganic compounds
attenuate due to adsorption to aquifer material, especially when it contains a relatively high percentage
of organic carbon.
The CAP must document that conditions at the subject site are conducive to natural
remediation processes and should present any evidence that natural attenuation is occurring
at the site. A demonstration of natural attenuation may be based on direct evidence such as
monitoring data which shows the plume decreasing in volume and concentration. Indirect evidence
may also demonstrate that natural attenuation is occurring at the site. Such a demonstration may
include, but is not limited to, showing: decreases in terminal electron acceptors, increases in the
byproducts of microbial respiration, and the presence of a significant population of bacteria capable
of degrading the contaminants. In addition, the CAP should indicate which site-specific parameters
are predicted to limit the rate of biodegradation and natural attenuation.
If groundwater remediation by natural attenuation is proposed for a site where trapped
contamination exists in the capillary fringe and saturated zone, the CAP should contain a discussion
on the effect the residual contamination will have on the timing and success of remedial efforts. This
discussion should generally include estimates of leachate concentrations for the contaminants of
concern based on their concentrations in the soil or aquifer matrix and other site-specific parameters.
Please refer to Selecting Contaminants of Concern in the General Information section for further
guidance.
The CAP should also include a discussion of the relative toxicity and environmental fate of
potential chemical compounds which may result from incomplete degradation of contaminants, if
applicable. This information may be available in the literature or may be determined from site data.
For example, TCE has been demonstrated to degrade to vinyl chloride under anaerobic conditions.
Vinyl chloride is more toxic and presents more potential risk than the parent compound from which
it was produced. Potential breakdown products should be also be considered in monitoring plans.
Adsorption is another natural attenuation process that can be considered in the CAP. Soil and
aquifer matrices with high organic carbon content have greater adsorption potential for hydrophobic
contaminants and, therefore, tend to retard contaminant transport. Total organic carbon (TOC) values
are used to determine fraction organic carbon (f^.). When the contaminants are organic chemicals,
soil and aquifer matrix samples collected for TOC analysis must be collected from an uncontaminated
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area. If the samples were collected from zones containing organic compounds, the measured TOC
fraction would be too great and estimates of retardation rates due to adsorption to organic carbon
would be too high. Furthermore, samples collected for TOC analysis should come from the zone(s)
within the aquifer that contain the contamination. This is because dissolved contamination is
commonly demonstrated to migrate preferentially through more transmissive zones within an aquifer.
TOC values will generally range from 0.1% to 1% for aquifer matrix, and from 1% to 3.4%
for surficial soils. If higher values are used for predictive calculations or modeling, they must be based
on lab analyses for samples collected as indicated above. All estimated values must be justified to be
conservative for the soil type(s) present at the site. It is important to note that organic compounds
may adsorb to mineral surfaces if the TOC in the sediment is low. This process is particularly
important in fine-grained sediments which have a high surface area to volume ratio.
Research has provided a general understanding of site conditions which are amenable to natural
attenuation of dissolved phase contamination. The aquifer matrix must be sufficiently permeable to
allow for the difiusion and advection of nutrients and terminal electron acceptors. Sites with saturated
hydraulic conductivity (K) values greater than 10"4 cm/sec are usually considered good candidates.
The pH of the groundwater, which affects microbial viability and the availability of nutrients, should
be between 6 and 8 for optimal microbial growth. Natural attenuation may be marginally effective at
sites with a pH slightly outside of this range. Aquifer temperatures in North Carolina are generally
within the acceptable range (5 to 45 degrees Celsius) for bioremediation. Ideally, the
carbon.nitrogeniphosphorous (C:N:P) ratio in the aquifer should be between 100:10:1 and 100:1:0.5.
Both organic nitrogen (measured as total organic nitrogen) and inorganic nitrogen (measured as
ammonia, nitrate and nitrite) may be available to organisms.
A well-aerated aquifer could contain dissolved oxygen concentrations near 8 milligrams per
liter. Background dissolved oxygen levels greater than 2 milligrams per liter are generally considered
adequate to support aerobic biodegradation. However, because oxygenated water intersects the
contaminant plume at its periphery, most aerobic biodegradation occurs at the plume margins.
Therefore, the core of the plume will generally be anaerobic.
Groundwater parameters that may be appropriate for analysis at potential natural remediation
sites include: contaminant concentrations, concentrations of intermediate compounds formed by
degradation of contaminants, nutrient concentrations, pH, redox potential (Eh), terminal electron
acceptors (e.g., oxygen, nitrate, sulfate, Fe3*, Mn4^ ,Mn3",etc.), and byproducts of respiration (e.g.,
carbon dioxide, methane, Fe2", Mn2*, etc.). Eh measures a solution's ability to accept or transfer
electrons, and provides indirect information on the oxygen content of the plume. Not all of the
parameters listed above are required to be measured at every site; in some cases an adequate
evaluation can be done based on some of these indicator parameters. However, if natural attenuation
is proposed for marginal sites, the proponent will want to provide as many lines of evidence as is
reasonable to support the claim that natural processes will remediate the plume.
All parameters analyzed for and the values obtained must be reported in the CAP. A
description of the methods used for all analyses and site measurements, and justification of their
applicability to the site, must also be provided. For field measurements, the instrument type and
calibration method should also be provided. Any parameter values that were not measured directly
but were calculated or estimated by other means must be justified and conservative. Conservative
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values will result in the prediction of worst-case scenarios for contaminant transport and remedial
progress.
Direct measurement of natural attenuation involves analyzing for contaminant concentrations
periodically and comparing these values to historic values. If the plume is no longer expanding and
the contaminant concentrations are diminishing [which generally occurs only if the contaminant
sources have been remediated, or if the groundwater plume has achieved a steady-state (equilibrium)
with residual contamination] then natural attenuation may be assumed to be occurring at the site. For
sites where the plume is still expanding, natural attenuation may be demonstrated if it can be shown
that the rate of contaminant transport is significantly less than the estimated rate of linear groundwater
velocity. For some sites, the rate of natural attenuation may be estimated by comparing concentration
decreases along the longitudinal axis of the plume for contaminants that readily attenuate with
contaminants that are known to be recalcitrant to attenuation (Wiedemeier et al., 1995, McAllister and
Chiang, 1994; see the attached reference list).
Indirect indicators of natural attenuation may include a decrease in the concentrations of
dissolved oxygen and other terminal electron acceptors relative to levels in uncontaminated
background wells. Similarly, an increase in concentration of the products of redox reactions may
provide evidence for natural attenuation. For example, an increase in dissolved Fe3* in the plume, as
compared to up gradient wells, may indicate that anaerobic biodegradation is occurring (Wiedemeier
et al., 1995; McAllister and Chiang, 1994; see the attached reference list).
Natural Attenuation of Bedrock Contamination
Natural attenuation will generally not be approved for sites where contamination occurs in
bedrock (e.g., fractured rock, permeable carbonate rock). This policy is based on two considerations:
1) dispersion may be the principal attenuation mechanism causing the plume to attenuate in bedrock,
and 2) a reasonable estimate of the rate and direction of contaminant transport will be difficult or
impossible to obtain.
However, approval may be granted for some sites where no potential receptors are identified,
and contaminant concentrations are low enough to allow for the designation of a compliance boundary
(radius) beyond which it can be certified that contaminants will not exceed the standards. Approval
may be granted on a case-by-case basis if all of the following conditions are met:
-the CAP certifies that contamination exceeding the standards is not predicted to migrate
beyond the compliance boundary specified in the CAP,
-implementation of the CAP will not result in impacts to receptors or surface water,
-the assessment demonstrates a knowledge of where the contamination is located in the
subsurface,
-the CAP proposes a monitoring plan sufficient to track the migration of the plume and to
serve as a warning system to protect potential receptors, and
-public notification has been made to all owners and occupants of properties that could be
impacted by the migration of the plume.
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It is important to recognize that the primary attenuation process that is likely to occur in
bedrock environments is dispersion. Therefore, CAPs submitted pursuant to this Paragraph may not
be approved if contaminant levels are so high that a large volume of the aquifer would be required to
effectively disperse the plume. Additionally, a detailed assessment of contaminant migration pathways
and a more elaborate monitoring well network, including nested wells screened at discreet intervals,
may be required. Approval of CAPs for bedrock contamination sites will not be granted on the basis
of a lack of knowledge of site conditions.
Natural Attenuation of Soils
Natural attenuation of contamination in the unsaturated (vadose) zone primarily involves the
processes of biodegradation, dissolution, and adsorption to soil matrix. Natural attenuation may
be approved for remediation of contaminated soil if all of the following conditions apply:
-petroleum hydrocarbon contamination concentrations exceed the cleanup levels derived from
the Site Sensitivity Evaluation (SSE),
-the soil contamination has not caused groundwater contaminant concentrations to exceed
the standards specified in .0202,
-leachate from the contaminated soil is not predicted to create a groundwater violation at any
time in the future,
-the contaminant has the capacity to degrade or attenuate under site specific conditions,
-soil remediation by other methods is not economically or technically reasonable due to site
conditions and /or the nature of the contaminant, and
-the contaminated soil will not pose a threat to human health due to soil ingestion, inhalation
or absorption through skin contact.
Scientific literature provides various analytical methods for calculating leachate concentrations.
A reference for a peer-reviewed formula is provided in the list of selected references which
accompanies this document (see Menatti, 1994). In addition, several computer models which calculate
soil leachate concentrations are commercially available (e.g., SESOIL, JURY). All estimated
parameters must be conservative and predict worst-case scenerios.
The following rules of thumb for natural attenuation of petroleum-contaminated soil
should be considered when developing a CAP for natural attenuation of soil. The soil pH, which
affects both the viability of organisms and the availability of nutrients, should be between 5.5 and 8.5,
with 6.5 to 8 considered optimal. Seasonal average soil temperature should be between 15 and 45
degrees Celsius. Average soil temperatures for sites in North Carolina are within this range. The
optimal carbon:nitrogen:phosphorous (C.N:P) ratio in the soil is between 100:10:1 to 100:1:0.5. Both
organic nitrogen (measured as total organic nitrogen) and inorganic nitrogen (measured as ammonia,
nitrate and nitrite) may be available to organisms. Soil moisture should be within the range of 25%
to 85% of its water-holding (field) capacity; 50% to 80% is optimal. Too little moisture in the soil can
limit the presence of microbes; too much moisture may occlude pore space, thereby limiting the rate
of air flow through the soil. The air filled porosity should be at least 10% of the total porosity in order
to allow for adequate replenishment of oxygen in the soil. In general, the intrinsic permeability of the
contaminated soil should be >10 10 cm2. Intrinsic permeability is a measure of the permeability of the
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matrix to fluid and is independent of the fluid type. Saturated hydraulic conductivity for the soil
should be greater than 10"5 cm/sec. Clays and very clay-rich sediments generally do not have sufficient
air permeability to allow oxygen to be supplied at a rate adequate to support biodegradation.
However, soil structures, if present, may increase soil permeability above that expected on the basis
of sediment grain size analysis only.
In addition to the above parameters, several soil analyses and measurements can be done which
may provide evidence that natural attenuation is occurring in the soil. Measurements made on soil
from the zones of contamination must be compared with measurements from uncontaminated
background areas. Reduced concentrations of oxygen (soil gas or dissolved in pore water), nitrogen,
phosphorous, oxidized iron (Fe3*), oxidized manganese (Mn4+, Mn3*), or sulfate (S042") may indicate
that biodegradation is occurring at the site. An increase in reduced iron (Fe2*) or reduced manganese
(Mn2") may indicate anoxic conditions, which can be the result of biodegradation. An increase in
carbon dioxide (C02) or methane (CH4) in the soil gas can indicate anaerobic respiration. However,
methanogenic organisms are sensitive to pH and generally do not thrive in soil with a pH below 6.0
(i.e., acidic soil). Because the majority of soils in North Carolina are acidic, anaerobic degradation of
contamination by methanogenic bacteria is not typically a major attenuation process.
Please note that not all of the parameters listed above are required to be measured at
every site; in some cases an adequate evaluation can be accomplished based on some of these
parameters. However, if natural attenuation is proposed for a marginal site, then the proponent will
want to provide as many lines of evidence as is reasonable to support the claim that natural processes
will remediate the plume.
Because they represent actual field conditions, field measurements for natural attenuation
indicators are generally preferable to laboratory plate count studies or bench-scale tests. Soil gas
respirometry studies are commonly used to measure indications of in situ biodegradation. These
studies involve field measurements of soil oxygen depletion and the production of carbon dioxide (or
methane) as byproducts of microbial respiration. Soil gas measurements made in the zone of
contamination must be compared with measurements made in uncontaminated background areas to
determine if biodegradation is occurring at the site. In general, laboratory microcosm studies (bench
tests) do not duplicate field conditions and are not necessary for demonstrating the applicability of
natural attenuation to a particular site.
If, due to the nature and/or concentration of contaminants, toxicity to microbes is suspected,
then plate counts of aerobic or anaerobic heterotrophs [measured in colony forming units (CFU)]
should be measured in the lab. These tests are necessary only when there is reason to suspect that
toxic or marginal conditions may exist at the site. Values below 1000 CFU/gram may indicate either
a toxicity problem or the lack of nutrients necessary to support microbial metabolism. Plate counts
specific for petroleum degrading bacteria can also be done. Soil samples for microbial plate counts
must be collected aseptically using sterile sampling equipment and must be maintained at
approximately four degrees Celsius. Samples must not be frozen.
Monitoring natural attenuation of soil contamination must include analyzing soil samples for
the contaminants of concern. In addition, the monitoring plan should include periodic soil gas
respirometry tests or other indirect measurements of natural attenuation. A monitoring well will be
required to verify that groundwater is not impacted. If possible, this well should be installed just
outside of the soil contamination in a down gradient location. A well installed through the
contaminated soil has the potential to create an artificial pathway for contaminant migration which
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could result in groundwater contamination. The monitoring frequency for natual attenuation of soil
contamination may vary between sites, but in general will be required less often than for groundwater
remediation sites. The Director will consider all reasonable proposed monitoring plans.
Selecting Contaminants of Concern
Contaminants of concern must be chosen so that the behavior of the entire plume can be
modeled conservatively based on those compounds. The selection criteria must be explained in the
CAP. For complex chemical mixtures such as petroleum fuels, the contaminants of concern will
generally be those chemicals which:
-have the highest solubility in water,
-are the most toxic,
-form toxic chemicals as a result of incomplete degradation, and/or
-are least susceptible to environmental attenuation processes.
Residua] soil and/or free product with the potential to leach to groundwater should be analyzed
for the concentrations of contaminants of concern. These values may be used to calculate leachate
concentrations and to predict contaminant fate and transport using analytical or computer models.
Estimating Aquifer Parameters
For sites with potentially impacted receptors (i.e., situations where the most accurate data
possible is necessary due to a potential threat to human health or the environment) and sites where the
data are needed to properly design remediation systems, aquifer pumping tests may be required to
estimate values of aquifer parameters. However, for sites where potential receptors have not been
identified, an aquifer pumping test may not be required to obtain estimated values for hydraulic
conductivity (K) and transmissivity (t). In these cases, an alternative means of estimating aquifer
characteristics may be adequate.
For example, it may be acceptable at some sites to perform textural analysis on soil samples
collected from the zone(s) of contamination and to base conservative estimates of aquifer
characteristics on published values for K corresponding to the soil types present. Any observed soil
or relict rock structures should be considered for potential affects on contaminant transport. In
addition, the scientific literature provides methodologies for estimating K from grain size distribution
data [Hazan, 1911; Masch and Denny, 1966, Sherard, Dunningan and Talbot, 1984],
Alternatively, or in addition to soil data, the use of slug test data may be used to estimate K.
It is important to recognize for assessment and monitoring purposes that dissolved contamination
generally migrates in the most transmissive media. Therefore, slug tests should be conducted in the
zones through which contamination is migrating. Further, for aquifers with significant heterogeneity,
several slug tests should be performed in order to obtain a range of values for contaminant transport
rates. Please refer to the Groundwater Section's policy statement on the use of slug tests, dated
October 6, 1995. Copies of this policy may be obtained from the regional offices or from the Pollution
Control Branch.
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Another method which may be used to estimate contaminant transport rates is to utilize the
site monitoring history in cases where the approximate release date is known or where monitoring has
tracked the migration of the plume over time. If site data demonstrate the approximate time elapsed
for contaminants to migrate from one down gradient monitoring well to another, an estimate of the
transport rate may be calculated. By comparing this empirically-derived contaminant transport rate
with the estimated linear (seepage) velocity for groundwater flow, a rate for natural attenuation may
be estimated for the site.
Regardless of how the groundwater linear velocities and contaminant transport rates are
estimated, the values should always be conservative. In order to predict a worst-case scenario, it
should be generally assumed that there will be no contaminant losses from volatilization. Further,
unless significant organic carbon is documented to be present in the zone(s) through which the
contamination is migrating, adsorption to aquifer material should be assumed to be a minor component
of natural attenuation. Please note that the soil samples for total organic carbon (TOC) analysis should
be collected from an uncontaminated area representative of the contaminant-bearing zones of the
aquifer. If the sample is collected from an area containing significant contamination by organic
compounds the value for TOC could be artificially high causing estimates of retardation due to
adsorption to be too high.
A potentiometric surface map (superimposed on the base map) which identifies the location
of the current plume and all potential receptors must be included in the CAP. The location of one
year of groundwater travel time up gradient of the existing or foreseeable receptor closest to the
leading edge of the plume must be indicated on the map, if applicable. All current and proposed
monitoring wells must also be located on the base map. Isoconcentration maps based on the most
recent analytical data should also be included.
Modeling of Contaminant Fate and Transport
Contaminant fate and transport calculations or computer modeling will often be necessary to
predict the maximum extent to which the plume is expected to migrate. This is particularly important
if it cannot be demonstrated that the rate at which contaminants are entering the dissolved phase has
reached a steady-state equilibrium with natural attenuation processes and that the plume is not
expanding. Predictive calculations or modeling will be used to provide assurance that potential
receptors will not be impacted and that monitoring plans are adequate to track plume migration. In
addition, they will ensure that all parties required under .0114(b) to be notified have been identified.
In order to model contaminant transport, the distribution and concentrations or mass fraction
of the contaminants of concern for any residual contaminated soil, aquifer material, or free product
present at the site must be identified. The contaminants of concern must be chosen so that the
behavior of the entire plume can be modeled conservatively based on those compounds. Please refer
to Selecting Contaminants of Concern in the General Information section for additional guidance.
The concentrations of the contaminants of concern may be used to calculate leachate
concentrations and to predict contaminant fate and transport using analytical or numerical (computer)
models. A decaying source may be used in numerical models to simulate a source area which is
undergoing remediation.
A tiered approach should be used for contaminant fate and transport modeling. The first step
in evaluating plume migration is to develop an appropriate conceptual model of contaminant
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distribution and the hydrogeologic framework of the site. Then, the available site monitoring history
should be reviewed to see if it can be determined empirically that the plume has reached a steady state
(equilibrium) configuration or is shrinking in size and concentration. If the data are insufficient to
make this determination, simple analytical calculations may be used to predict retardation factors and
contaminant transport rates (Wiedemeier et al., 1995; McAllister and Chiang, 1994). The use of
simple, one-dimensional computer models may also be considered.
Two- and three-dimensional models should not be utilized unless the amount and quality of
site data warrants their use. If these complex models are run using many estimated input values, the
model output may not be worth the effort and expense. Furthermore, several years of monitoring data
are often needed to properly calibrate a numerical model. If these data are available, it might be
sufficient to base predictions of transport and attenuation rates on site history alone, thereby
eliminating the need to run a computer model.
Because all models are based on severely simplifying assumptions about the site,
implementation of CAPs based on modeling will rely heavily on site monitoring. The monitoring
network will provide an early warning system and will provide data necessary to reevaluate
predictions. Computer modeling efforts must be well documented in order to be considered
acceptable. At a minimum, this documentation must include:
-the name, version, and developer of the model,
-the type of sites for which the model was designed and/or is applicable,
-critical assumptions inherent to the model,
-critical conceptual assumptions and estimates of input values made by the modeler,
-a description of the calibration process used by the modeler,
-a description of the range of values used and the results of sensitivity analyses on critical
data inputs to the model, and
-a graphical representation and narrative explanation of the modeling results.
Please note that all assumptions and estimated values must be documented in the CAP to be
conservative. Conservative estimates are values that predict worst-case scenarios.
Identifying Potential Receptors
The meaning of'foreseeable receptor' as used in .0106 is defined to include any receptor listed
in Rule .0102 (19). Additionally, a foreseeable receptor may be any property where the groundwater
resources have a potential use, public water is not available, and the permission of the area property
owners allowing contamination to migrate onto their land has not been obtained, including:
-locations for which formal plans exist to use groundwater for public or private use;
-locations for which the property owner(s) has expressed an anticipated or possible future
use of groundwater resources;
-rural locations for which public water supplies will most likely not be available for future
residential, agricultural or industrial development and the owner(s) has expressed a future
anticipated use; and
-locations where the land ownership cannot be determined at present.
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Utilities will not be considered receptors unless they are predicted to be adversely impacted.
If the plume is predicted to intercept utilities, the CAP must contain a discussion on the physical
integrity of the construction materials (e.g., PVC, polyethylene, glues, gaskets, seals, etc.) in contact
with the contamination. The discussion of material integrity must be presented by a North Carolina
Professional Engineer.
Drainage ditches and surface impoundments of water are considered surface water bodies, and
as such are subject to the standards and criteria set forth in 15A NCAC 2B. The Water Quality
Section of the Division of Environmental Management may be contacted for information related to
surface water classification and standards.
The site, and adjacent properties on to which the plume is predicted to migrate, should be
evaluated for the existence of any of the environmentally sensitive areas listed below. Knowledge of
the presence of sensitive environments will facilitate the determination of special sampling
requirements and the evaluaton of risk to the environment.
1) National Parks and State Parks; Designated and Proposed Federal and State Wilderness and
Natural Areas; Sensitive Areas Identified Under the Natural Estuary Program or the Near
Coastal Waters Program; Critical Areas Identified Under the Clean Lakes Program; Criticial
Habitats or Habitats Known to be Used by State or Federally Designated or Proposed
Endangered or Threatened Species or Species Under Review as to Their Endangered or
Threatened Status; National and State Preserves and Forests; National or State Wildlife
Refuges, Federal Land Designated for Protection of Natural Ecosystems; Terrestrial Areas
Utilized for Breeding by Large or Dense Aggregations of Animals; Areas Important to
Maintenance of Unique Biotic Communities; State-Designated Areas for Protecton or
Maintenance of Aquatic Life - contact NC Division of Parks and Recreation - Natural
Heritage Program at (919) 733- 7701.
2) Marine Sanctuaries - contact NOAA at 202-606-4126.
3) National Monuments - contact U.S. Park Service at 202-343-7014.
4) National and State Historical Sites - contact NC Department of Cultural Resources at (919)
733-5722.
5) National and State Seashore, Lakeshore and River Recreational Areas; State or Federal
Designated Scenic or Wild Rivers - contact NC Division of Parks and Recreation - Planning
and Development Section at (919) 846-9991.
6) Areas Identified Under Coastal Protecton Legislation; Coastal Barriers or Units of a Coastal
Barrier Resources System - contact NC Division of Coastal Management at (919) 733-
2293.
7) Spawning Areas Critical for the Maintenance of Fish/Shellfish Species within River, Lake
or Coastal Tidal Waters; Migratory Pathways and Feeding Areas Critical for Maintenance
of Anadromous Fish Species within River Reaches or Areas in Lakes or Coastal Tidal
Waters in which such Fish Spend Extended Periods of Time; State Lands Designated for
Wildlife or Game Managment; State-Designated Areas for Protection or Maintenance of
Aquatic Life - contact NC Wildlife Resources Commission at (919) 288-5738.
8) Wetlands - (On site or adjacent to site) - contact US Army Corps of Engineers at (919) 847-
1707.
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Monitoring
Monitoring plans for alternative corrective action sites must include sufficient monitoring
points to track the horizontal and vertical migration of the plume and to create a warning system of
wells up gradient of potentially impacted receptors as specified in ,0106(1)(7). In addition to tracking
migration, the progress of the remediation must be monitored. This may be done by both direct and
indirect methods. In accordance with 15A NCAC 2L .0110, a North Carolina Professional Engineer
or North Carolina Licensed Geologist is required to report any indication that the implementation of
a CAP pursuant to ,0106(k), (1) or (m) is not performing according to predictions.
Monitoring of natural attenuation may be based on direct evidence such as monitoring data
which shows the plume decreasing in volume and concentration. Indirect evidence may also
demonstrate that natural attenuation is occurring at the site. Such a demonstration may include, but
is not limited to, showing: decreases in terminal electron acceptors, increases in the byproducts of
microbial respiration, and the presence of a significant population of bacteria capable of degrading the
contaminants. In addition, the CAP should indicate which site-specific parameters are predicted to
limit the rate of biodegradation and natural attenuation.
Specific groundwater parameters that may be appropriate to monitor at natural remediation
sites include: contaminant concentrations, concentrations of intermediate compounds formed by
incomplete degradation of contaminants, nutrient concentrations, pH, redox potential (Eh), terminal
electron acceptors (e.g., oxygen, nitrate, sulfate, Fe3+, Mn"", Mn3\ etc.), and byproducts of respiration
(e.g., carbon dioxide, methane, Fe2* , Mii*, etc.). Not all of the parameters listed above are
required to be monitored at every site; in some cases an adequate evaluation of the progress of
remediation can be made based on some of these parameters. For example, if the plume can be
shown to be steadily decreasing in concentration, it may not be necessary to monitor any parameters
other than the concentrations of the contaminants of concern. In addition, if the plume is, or is
predicted to discharge to surface water, then water samples must be collected and analyzed
periodically to monitor for impacts to the surface water body. A description of the methods used for
all analyses and field measurements, and justification of their applicability to the site, must also be
provided. For field measurements, the instrument type and calibration method should also be
provided.
Alternative corrective action sites will generally be monitored quarterly for the first year
followed by less frequent monitoring. The Director will consider all reasonable, site-specific
monitoring proposals. The predicted rate of contaminant transport and proximaty to potential
receptors should be considered when proposing a monitoring schedule.
Public Notification
All potentially affected parties [as specified in .0114(b)] are required to be notified of proposed
corrective actions. A list of individuals notified, along with copies of the notification letters and the
certified mail receipts (the receipts retained by the sender after mailing), must be included with the
CAP. If the signed return receipts (green cards) are submitted to the Groundwater Section (Section)
at a later date, they should be clearly labeled with the site name, county and Groundwater Incident
Number (PERF number) so that they can be matched with the CAP. Please note that renotification will
be required if subsequent CAPs or CAP addendums are submitted which contain significant changes
to proposed site actions.
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The Section has developed a standard letter format to assist the regulated community in
preparing the notification letters required in .0106 (k), (1) and (m) and .0114 (b) The standard letter
contains key elements which must be included in any notification letter in order to satisfy the
requirements of the Rule. In addition, the Section has prepared a standard format for placing public
notice in newspapers. Copies of these shell documents are available from the regional offices and from
the Pollution Control Branch. The shell documents state that the CAP proponent is required to
provide these parties with a copy of the CAP upon request.
A public (newspaper) notice may be substituted for individual notices only under the following
conditions:
-the plume has not migrated, and is not predicted to migrate, onto the properties owned or
occupied by the parties for whom the public notice is replacing individual notification, and
-approval to substitute the public notice for individual notification has been obtained from the
appropriate Regional Office.
Newspaper notices may not be substituted for individual notification of the following parties: the local
Health Director; the chief administrative officer of the local political jurisdiction containing the plume;
and all owners and occupants of properties within the area where the plume is, or is predicted to
migrate.
For sites where the plume is on, or is predicted to migrate onto, property with roads or
highways, the North Carolina Department of Transportation or appropriate local government authority
maintaining ownership or easement should be notified. Similarity, if roads or highways are located
adjacent to the property containing the plume, the DOT or local government authority maintaining
ownership or easement is considered the adjacent property owner and/or occupant and must be
notified pursuant to .0114(b).
In situations where the contamination resulted from the release of petroleum fuel hydrocarbons
from regulated underground storage tanks, the Division may need to fulfill additional public notice
requirements. For sites where public notice of corrective action was placed in local newspapers prior
to implementation of active remediation, the Division shall place a similar notice prior to approving
a CAP under ,0106(k), (1) or (m).
If approval of a CAP submitted under this paragraph is granted, the CAP proponent is required
by .0114(c) to notify all parties specified under .0114(b) of the decision. This notification must be
done via certified mail within 30 days of receipt of the approval letter from the Director.
Corrective Action Plan Preparation and Submittal
Each CAP must be submitted to the appropriate regional office on the same day the letters for
public notice are mailed. Each CAP must have a properly executed GW-100 certification form
attached to the front. Either an original or a legible photocopy of an original form must be used; a
CAP will not be accepted if a retyped version of the GW-100 form is used. The GW-100 forms have
been revised since the original November 1993 printing. Copies are available from the Groundwater
Section's regional offices and from the Pollution Control Branch. Each item on the GW-100
certification form must be initialed in ink by hand and the form must bear the seal and signature of the
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certifying North Carolina-licensed professional [see section .0103(e) for clarification on the
professional jurisdictions of Professional Engineers and Licensed Geologists]. In addition, the CAP
must display the seal and signature of the certifying licensed professional.
The term 'prepared' as used on the GW-100 certification form should be construed to mean
that the CAP has been prepared under the responsible charge of the certifying licensed professional
pursuant to North Carolina Statutes. The term is included on the form because Professional Engineers
and Licensed Geologists are prohibited from certifying plans prepared by individuals not working
under their direct control and supervision.
Reimbursement: State Underground Storage Tank Trust Funds
Reasonable and necessary costs associated with the preparation and implementation of a CAP
will be reimbursed by the State UST Trust Fund for eligible sites under ,0106(k), (I) or (m). Costs
associated with the preparation of a CAP will not be reimbursable if data existed prior to CAP
preparation which clearly indicated that site conditions do not meet the requirements specified in
.0106(k), (1) or (m). Situations where reimbursment will not be made include:
-the plume has migrated (or is predicted to migrate) offsite, public water is not available, and
the permission of offsite property owners allowing the plume onto their property has not
been granted;
-the plume is currently causing, or is predicted to cause a violation of surface water standards
or criteria (15A NCAC 2B);
-the time and direction of contaminant transport cannot be predicted with reasonable certainty;
-contaminated groundwater has or is expected to reach a receptor and resultant adverse
impacts will not be mitigated (see Identifying Potential Receptors in the General Information
section);
-access agreements required for site monitoring and/or remediation cannot be obtained, and
the need for such access should have been anticipated;
-another regulatory agency has authority over any portion of the plume and requires active
remediation; and
-the area in the vicinity of the plume was identified for groundwater resource development
prior to CAP preparation.
In addition to the above, other conditions where reimbursement for the development of a CAP
pursuant to ,0106(m) will not be made include:
-sites for which it has not been demonstrated that further groundwater remediation will not
result in significant reductions in contaminant concentrations, and
-sites where the remediation system was improperly designed and/or operated.
Costs associated with the preparation of a "soil only" CAP under .0106(1) will not be
reimbursable if the Site Sensitivity Evaluation (SSE) is applicable to the site and soil contaminant
concentrations did not exceed the cleanup levels derived from the SSE at the time of CAP preparation.
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For sites where a CAP has previously been received by the DEM, only those costs associated
with the preparation of new text, calculations, figures, and tables not previously submitted in either
the CSA or the first CAP will be reimbursable. Costs for the purchase of computer equipment,
modeling software, and staff training are not reimbursable. Additionally, costs for performing
toxicological exposure assessments or health risk evaluations are not reimbursable.
(n) Considered to be self-explanatory.
(o) Considered to be self-explanatory.
(p) Considered to be self-explanatory.
(q) Considered to be self-explanatory.
.0114 NOTIFICATION REQUIREMENTS
Purpose of Rule
The Rule defines the notification requirements for contamination incidents not related to
permitted facilities. Although not specified in the Rule, the notice requirements contained in 15A
NCAC .0114 have, as part of their authority, North Carolina General Statute 143.215.2.
(a) The Chief Administrative Officer is considered to be the Mayor, Chairman of the
County Commissioners, the County Manager, the City Manager or other individual of
equal or similar position as appropriate. Notification must be made by certified mail.
These requirements apply to CAPs submitted pursuant to 0106(c) only. Please be
aware that renotification will be required if subsequent CAPs or CAP addendums are
are submitted which contain significant changes to proposed site actions.
(b) These requirements apply to CAPs submitted pursuant to ,0106(k), (1) and (m). The
Chief Administrative Officer is considered to be the Mayor, Chairman of the County
Commissioners, the County Manager, the City Manager or other individual of equal
or similar position as appropriate. It is important to note that both the property owners
and the occupants of those properties specified must be notified. The Groundwater
Section of the DEM has developed a standard format to be used by the regulated
community when preparing the notification letters as required under this subsection.
It contains several key elements which must be included in any notification letter if it
is to satisfy the requirements of the Rule. Copies of this shell document are available
from the regional offices or from the Pollution Control Branch. Please be aware that
renotification will be required if subsequent CAPs or CAP addendums are submitted
which contain significant changes to proposed site actions.
(c) If the Director grants approval of the CAP, the proponent is required to re-notify all
parties specified in .0114(b) of the approval. This requirement pertains to all CAPs
approved under 0106(k), (1) and (m).
12/6/95
30
-------
REFERENCES
Borden, R.C., C.A. Gomez, and M.T. Becker. 1995.
Geochemical indicators of intrinsic bioreraediation.
Ground Water Monitoring Review.Vol. 33, No. 2,
pp. 180-189.
Buscheck, T.E., K.T. O'ReUly, and S.N. Nelson. 1993.
Evaluation of intrinsic bioremediation at field sites.
Proceedings of the Conference on Petroleum Hydrocarbons
and Organic Chemicals in Ground Water: Prevention, Detection,
and Restoration. National Ground Water Association/API, Houston,
Texas. November 10-12, 1993 (in press)
Hazen, A. 1911. Discussion of 'dams on sand foundations,'
by A.C. Koenig. Transactions of the American Society of Civil
Engineers. Vol. 73, pp. 199.
Lee, M.D., J.M. Thomas, R.C. Borden, P.B. Bedient,
J.T. Wilson, and C.H. Ward. 1988. Biorestoration of aquifiers
contaminated with organic compounds. National Center
For Ground Water Research. A consortium of Rice University,
University of Oklahoma and Oklahoma State University in cooperation
with U.S. EPA, Robert S. Kerr Environmental Research Laboratory,
Ada. Oklahoma. Vol. 18, Issue 1, pp. 29-89.
Masch, F.D., and K.J. Denny. 1966. Grain-size distribution and its
effect on the permeability of unconsolidated sands. Water Resources
Research. Vol. 2, pp. 665-677
McAllister, P.M. and C.Y. Chiang. 1994. A practical approach
to evaluating natural attentuation of contaminants. Ground Water
Monitoring Review. Spring 1994. pp. 161-173.
Menatti, J.A. 1994. Fate and transport modeling of diesel fuel
contamination in the vadose zone. Proceedings of the 4th Annual
West Coast Conference on Hydrocarbon Contaminated Soils and
Groundwater fin press/
Norris, RD., R.E. Hinchee, R. Brown, P.L. McCarty, L. Semprini,
J.T. Wilson, D.H. Kampbell, M. Reinhard, E.J. Bouwer, R.C. Borden,
T.M. Vogel, J.M. Thomas, and C.H. Ward. 1994. In-situ bioremediation
of groundwater and geological material. a review of technologies.
U.S. EPA, Robert S. Kerr Environmental Research Laboratory, Ada,
Oklahoma. Report No. 68-C8-0058: Section 9.
-------
Piwoni, M.D., and J.W. Keeley. 1990. Basic concepts of contaminant
sorption at hazardous waste sites. Ground Water Issue, EPA/540/4-
90/053. U.S. EPA, Robert S. Kerr Environmental Research Laboratory,
Ada, Oklahoma.
Rawls, W.J. and D.L.Brakensiek. 1989. Estimation of soil water retention
and hydraulic properties. Unsaturated Flow in Hydrdlogic Modeling.
H.J. Morel-Seytoux. Kluwer Academic Publishers.
Sherard, J.L., L.P. Dunningan, and J R. Talbot. 1984. Basic properties of
sand and gravel filters. Journal of Geotechnical Engineering. Vol. 110,
No. GT6, pp. 684-700.
Sims, J.L., R.C. Sims, R.R. Dupont, J.E. Matthews, and H.H. Russell.
1993. In-situ bioremediation of contaminated unsaturated subsurface soils.
Engineering Issue. EPA/540/S-93/501. U.S. EPA, Robert S. Kerr
Environmental Research Laboratory, Ada, Oklahoma.
Sims, J.L., R_C. Sims, and J.E. Matthews. 1989. Bioremediation of
contaminated surface soils. EPA-600/9-89/073. U. S. EPA, Robert S.
Kerr Environmental Research Laboratory, Ada, Oklahoma.
Sims, J.L., J.M. Suflita, and H.H. Russell. 1992. Ln-situ bioremediation
of contaminated ground water. Ground Water Issue. EPA/540/S-92/003.
U.S. EPA, Robert S. Kerr Environmental Research Laboratory, Ada, Oklahoma.
Salanitro, J.P. 1993. The role of bioattenuation in the management of aromatic
hydrocarbon plumes in aquifiers Ground Water Monitoring Review, pp. 150-161.
Wiedemeier, T.H., J.T. Wilson, D.H. Kampbell, R.N. Miller, and J.E. Hansen.
1995. Technical protocol for implementing intrinsic remediation with long-term
monitoring for natural attentuation offuel contamination dissolved in groundwater.
Air Force Center for Environmental Excellence, Technology Transfer Division, Brooks
Air Force Base, San Antonio, Texas.
Wisconsin Department of Natural Resources, Emergency and Remedial Response
Program. 1994. Naturally occurring biodegradation as a remedial action option
for soil contamination: interim guidance (revision). Madison, Wisconsin.
Wise, W.R., and R.J. Charbeneau. 1994. Ln situ estimation of transport parameters:
a field demonstration. Ground Water. Vol. 32, No. 3, pp. 420-429.
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DIVISION OF ENVIRONMENTAL MANAGEMENT
Certification for the Submittal of a Corrective Action Plan
Under 15A NCAC 2L .0106(k)
Responsible Party:.
Address:.
city: State: Zip Code:
Site Name:.
Address:.
City: County: Zip Code:
Groundwater Section Incident Number:
I. , a Professional Engineer/Licensed Geologist (circle
one) for (firm or company of employment), do hereby certify
that the information indicated below is enclosed as part of the required Corrective Action Plan
(CAP) and that to the best of my knowledge the data, site assessments, engineering plans and
other associated materials are correct and accurate.
(Each Item must be initialed by hand by the certifying licensed professional).
1 A listing of the names and addresses of those individuals required to be
notified to meet the notification requirements of 15A NCAC 2L .0114(b) are
enclosed. Copies of letters and certified mail receipts are also enclosed. A
copy of the newspaper notice and the title of the newspaper(s) where it was
published must be included, if applicable.
2 A Professional Engineer or Licensed Geologist has prepared, reviewed,
and certified all applicable parts of the CAP in accordance with
15A NCAC 2L .0103(e).
3 A site assessment is attached or on file at the appropriate Regional Office
which provides the information required by 15A NCAC 2L .0106(g).
4 A description of the proposed corrective action and supporting justification is
enclosed.
5. Specific plans and engineering details for the restoration of groundwater quali-
ty are enclosed and propose the use of the best available technology. A list-
ing of contaminants detected in groundwater in excess of standards pre-
scribed in 15A NCAC 2L .0202 and the proposed cleanup goal for each cont-
aminant is also enclosed.
6 A schedule for the implementation and operation of the CAP is enclosed.
7 A monitoring plan is enclosed which has the capacity to evaluate the effective-
ness of the remedial activity and the movement of the contaminant plume and
which meets the requirements of 15A NCAC 2L .0110.
8 The activity which resulted in the contamination incident is not permitted by
the State as defined in 15A NCAC 2L .0106(e).
GW-100(k) Rev. 7/95
(OVER)
-------
In addition, the undersigned also certifies that to the best of my knowledge and professional
judgement and in accordance with the requirements of 15A NCAC 2L .0106(k), the following
determinations have been made and are documented in the CAP:
9 all sources of contamination and free product have been removed or
controlled in accordance with 15A NCAC 2L .0106(f) and (k). (See guidance
document).
10. the time and direction of contaminant travel can be predicted with reasonable
certainty.
1 1 the contaminants have not and will not migrate onto adjacent properties, or
adjacent properties are served by public water supplies which cannot be influ-
enced by contaminants migrating off-site, or adjacent landowners have con-
sented in writing to a request allowing the contaminant upon their property.
1 2 the standards specified in 15A NCAC 2L .0202 will be met within one year
time of travel upgradient from any receptor. This determination is based on
the travel time and natural attenuation capacity of the aquifer and the contam-
inant, or on a physical barrier to groundwater migration that currently exists or
will be installed.
13. groundwater discharge of the contaminant plume to surface waters will not
result in a violation of 15A NCAC 2B .0200.
1 4 all necessary access agreements needed to monitor groundwater quality and
contaminant plume migration have been or can be obtained.
1 5 the area of the contaminant plume has not been identified by a state or local
government groundwater use planning process for resource development.
(Please Affix Seal and Signature)
NOTE: Any modifications made to this form may result In the return of your submittal.
GW-100(k) Rev. 7/95
-------
DIVISION OF ENVIRONMENTAL MANAGEMENT
Certification tor the Submittal of a Corrective Action Plan
Under 15A NCAC 2L .0106(1)
Responsible Party:
Address: !
City: State: Zip Code:
Site Name: =
Address:
City: County: Zip Code:.
Groundwater Section Incident Number:
I, . a Professional Engineer/Licensed Geologist (circle
one) for (firm or company of employment), do hereby
certify that the information indicated below is enclosed as part of the required Corrective Action
Plan (CAP) and that to the best of my knowledge the data, site assessments, engineering
plans and other associated materials are correct and accurate.
(Each item must be initialed by hand by the certifying licensed professional).
1 A listing of the names and addresses of those individuals required to be noti-
fied to meet the notification requirements of 15A NCAC 2L .0114 (b) are
enclosed. Copies of letters and certified mail receipts are also enclosed. A
copy of the newspaper notice and the title of the newspaper(s) where it was
published must be included, if applicable.
2 A Professional Engineer or Licensed Geologist has prepared, reviewed, and
certified all applicable parts of the CAP in accordance with 15A NCAC 2L
.0103(e).
3 A site assessment is attached or on file with the appropriate Regional Office
which provides the information required by 15A NCAC 2L .0106(g).
4 A description of the proposed corrective action and supporting justification is
enclosed.
5 A schedule for the implementation of the CAP is enclosed.
6 A monitoring plan is enclosed which has the capacity to evaluate the effec-
tiveness of the remedial activity and the movement of the contaminant
plume, and which meets the requirements of 15A NCAC 2L .0110 and
.0106(1).
7 The activity which resulted in the contamination incident is not permitted by
the State as defined in 15A NCAC 2L .0106(e).
(OVER)
GW-100(1) Rev. 7/95
-------
In addition, the undersigned also certifies that to the best of my knowledge and professional
judgement and in accordance with the requirements of 15A NCAC 2L .0106(1), the following
determinations have been made and are documented in the CAP:
8 all sources of contamination and free product have been removed or
controlled in accordance with 15A NCAC .0106(f) and (I).
(See guidance document).
9 the contaminants have the capacity to degrade and attenuate under the
site-specific conditions.
1 0 the time and direction of contaminant travel can be predicted with reason-
able certainty.
1 1 the migration of the contaminant will not result in any violation of the
standards specified in 15A NCAC 2L .0202 at any existing or foreseeable
receptor.
1 2 the contaminants have not and will not migrate onto adjacent properties,
or adjacent properties are served by public water supplies which cannot be
influenced by contaminants migrating off-site, or adjacent landowners have
consented in writing to a request allowing the contaminant upon their
property.
1 3 groundwater discharge of the contaminant plume to surface waters will not
result in a violation of 15A NCAC 2B .0200.
1 4 the area of the contaminant plume has not been identified by a state or local
government use planning process for resource development.
1 5 all necessary access agreements needed to monitor groundwater quality
have been or can be obtained.
(Please Affix Seal and Signature)
NOTE: Any modifications made to this form may result In the return of your submittal.
GW-100(1) Rev. 7/95
-------
DIVISION OF ENVIRONMENTAL MANAGEMENT
Certification for the Submittal of a Corrective Action Plan
Under 15A NCAC 2L .0106(c)
Responsible Party: !
Address:
City: State: — Zip Code:
Site Name:
Address:
City: County: Zip Code:
Groundwater Section Incident Number:
I, , a Professional Engineer/Licensed Geologist (circle
one) for (firm or company of employment), do hereby
certify that the information indicated below is enclosed as part of the required Corrective Action
Plan (CAP) and that to the best of my knowledge the data, site assessments, engineering
plans and other associated materials are correct and accurate.
(Each item must be initialed by hand by the certifying licensed professional).
1 A listing of the names and addresses of those individuals required to be
notified to meet the notification requirements of 15A NCAC 2L .0114(a) is
enclosed. Copies of letters and certified mail receipts are also enclosed.
2 . A Professional Engineer or Licensed Geologist has prepared, reviewed,
and certified all applicable parts of the CAP in accordance with
15A NCAC 2L .0103(e).
3 . A site assessment is attached or on file at the appropriate Regional Office
which provides the information required by 15A NCAC 2L .0106(g).
4 . A description of the proposed corrective action and supporting justification is
enclosed.
5 . Specific plans and engineering details are enclosed and propose the use of
the best available technology for the restoration of groundwater quality to
the levels of the groundwater standards prescribed in 15A NCAC 2L .0202.
6. A schedule for the implementation and operation of the CAP is enclosed.
(OVER)
GW- 100(c) Rev. 7/95
-------
7.
A monitoring plan is enclosed which has the capacity to evaluate the effec-
tiveness of the remedial activity and the movement of the contaminant
plume, and which meets the requirements of 15A NCAC 2L .0110.
8. The activity which resulted in the contamination incident is not permitted by
the State as defined in 15A NCAC 2L .0106(e).
(Please Affix Seal and Signature)
NOTE: Any modifications made to this form may result In the return of your submittal.
GW-100(c) Rev. 7/95
-------
DIVISION OF ENVIRONMENTAL MANAGEMENT
Certification for the Submittal of a Corrective Action Plan
Under 15A NCAC 2L .0106(m)
Responsible Party:
Address:
City: State: Zip Code:
Site Name:
Address:
City: County: Zip Code:
Groundwater Section Incident Number:
I, , a Professional Engineer/Licensed Geologist (circle
one) for (firm or company of employment), do hereby
certify that the information indicated below is enclosed as part of the request to terminate
corrective action and that to the best of my knowledge the data, site assessments, engineering
plans and other associated materials are correct and accurate.
(Each item must be initialed by hand by the certifying licensed professional).
1 A discussion of the duration of the corrective action currently in progress,
the total project cost, projected annual cost for continuance, and an evalua-
tion of the success of the corrective action.
2 An evaluation of alternate treatment technologies which could result in fur-
ther reduction of contaminant levels at the site. Projected capital and annual
operating costs for each technology are included.
3 Potential problems generated if contaminant levels are allowed to remain at
current levels. The discussion includes human health and safety as well as
environmental concerns.
4 A monitoring plan is enclosed which has the capacity to evaluate the
effectiveness of the remedial activity and the movement of the contaminant
plume as specified in 2L ,0106(m) and which meets the requirements of
15A NCAC 2L .0110.
5 A professional Engineer or Licensed Geologist has prepared, reviewed,
and certified all applicable parts of the CAP in accordance with
15A NCAC 2L. 103(e).
(OVER)
GW-100(m) Rev. 7/95
-------
In addition, the undersigned also certifies that to the best of my knowledge and professional
judgement and in accordance with the requirements of 15A NCAC 2L .0106(m), the following
determinations have been made and are documented in the request:
6 continuation of corrective action will not result in a significant reduction in
the concentration of contaminants. Data showing the degree of success of
remedial efforts are enclosed. A plot of the curve of decontamination
(contaminant concentration versus time) which shows an asymptotic
slope, and calculations which demonstrate the slope to be less than 1:40
are also included.
7. the contaminants have not and will not migrate onto adjacent properties,
or adjacent properties are served by public water supplies which cannot be
influenced by contaminants migrating off-site, or adjacent landowners
have consented in writing to a request allowing the contaminant upon their
property.
8 groundwater discharge of the contaminant plume to surface waters will not
result in a violation of 15A NCAC 2B .0200.
9 a listing of the names and addresses of those individuals required to to be
notified to meet the requirements of 15A NCAC 2L .0114 (b) is enclosed.
Copies of letters and certified mail receipts are also enclosed. A copy of the
newspaper notice and the title of the newspaper(s) where it was published
must be included, if applicable.
10 . all necessary access agreements needed to monitor groundwater quality
and contaminant plume migration have been or can be obtained.
11 . the area of the contaminant plume has not been identified by a state or local
government groundwater use planning process for resource development.
(Please Affix Seal and Signature)
NOTE: Any modifications made to this form may result In the return of your submittal.
GW-100(m) REV. 7/95
-------
DIVISION OF ENVIRONMENTAL MANAGEMENT
Certification for the Submittal of a Corrective Action Plan
Under 15A NCAC 2L .0106(1)
Responsible Party:
Address:
City: State: Zip Code:
Site Name: .
Address:
City: County: Zip Code:
Groundwater Section Incident Number:
I, , a Professional Engineer/Licensed Geologist (circle
one) for (firm or company of employment), do hereby
certify that the information indicated below is enclosed as part of the required Corrective Action
Plan (CAP) and that to the best of my knowledge the data, site assessments, engineering
plans and other associated materials are correct and accurate.
(Each item must be initialed by hand by the certifying licensed professional).
1 A listing of the names and addresses of those individuals required to be
notified to meet the notification requirements of 15A NCAC 2L .0114(b) is
enclosed. Copies of letters and certified mail receipts are also enclosed. A
copy of the newspaper notice and the title of the newspaper(s) where it was
published must be included, if applicable.
2 A Professional Engineer or Licensed Geologist has prepared, reviewed, and
certified all applicable parts of the CAP in accordance with 15A NCAC 2L
.0103(e).
3 A site assessment is attached or on file at the appropriate Regional Office
which provides the information required by 15A NCAC 2L .0106(g).
4 A description of the proposed corrective action and supporting justification is
enclosed.
5 A schedule for the implementation and operation of the CAP is enclosed.
6 A monitoring plan is enclosed which has the capacity to evaluate the effec-
tiveness of the remedial activity.
7 The activity which resulted in the contamination incident is not permitted by
the State as defined in 15A NCAC 2L .0106(e).
(OVER)
GW-100(l-soil) Rev. 7/95
-------
In addition, the undersigned also certifies that to the best of my knowledge and professional
judgement and in accordance with the requirements of 15A NCAC 2L .0106(1), the following
determinations have been made and are documented in the CAP:
8 the seasonal high water table is at least five feet below the zone of deepest
contamination.
9 residual soil contamination exceeds the allowable levels calculated using the
Site Sensitivity Evaluation (SSE). (See Groundwater Section Guidelines for
the Investigations and Remediation of Soils and Groundwater!.
10 . the contaminants have the capacity to degrade and attenuate under the
site-specific conditions.
11 . leachate from soil contamination will not cause a violation of groundwater
standards specified in 15A NCAC 2L .0202 at any location.
12 . all necessary access agreements needed to monitor site remediation have
been or can be obtained.
NOTE: Any modifications made to this form may result in the return of your submittal.
GW-100(l-soil) Rev. 7/95
-------
DIVISION OF ENVIRONMENTAL MANAGEMENT
GROUNDWATER SECTION
August 4, 1995
MEMORANDUM
TO:
THROUGH:
FROM:
SUBJECT:
Attached is the current revision (6-15-95) of the "standard letter" that the Groundwater
Section (Section) developed to assist environmental contractors and responsible parties in
providing notice of proposed corrective actions to the owners and occupants of properties in the
vicinity of the contaminant plume. This notification is required by 15ANCAC 2L .0106(k), (1),
and (in) and .0114(b), and must be done so that the Director may consider comments from
potentially affected parties when deciding whether to approve or deny the CAP. The letter
informs the notified individuals of whom to contact in order to review the Corrective Action Plan
(CAP). Additionally, the letter instructs them on the proper procedures for commenting on the
CAPs. ¦
AJso enclosed is a "standard newspaper format" for use when a newspaper notice is
substituted for some of the individual notifications as discussed during the July 12, 1995 training
session on review of (k), (1) and (m) CAPs. As indicated at that meeting, the Section's policy
regarding public notification is that all owners and occupants of all properties where the plume is,
and is expected to migrate, must be notified directly via certified mail. In addition, all owners and
occupants of properties adjacent to the properties specified above must also be notified. This
requirement has, in some cases, put an unreasonable burden on the C.AP proponent by requiring
them to identify' and notify many parties who are not predicted to be affected by the
implementation of the CAP. Therefore, the Section may allow a newspaper notice to be
substituted for individual notices if the following conditions are met:
1) the CAP proponent must obtain approval from Section staff of the appropriate
Regional Office to substitute the newspaper notice for the direct mailing of notice
to specific parties;
2) all owners and occupants of properties containing the pjume, and properties onto
which the plume is predicted to migrate, must be notified individually.
3) the local Health Director and chief administrative ofncer of the political
Regional Groundwater Supervisors
Arthur Mouberr^/^^^-'
BurrieBoshoff ^t
Shell Document for Providing Public Notification of Proposed Corrective Actions
in Accordance with 15ANCAC 2L .0114(b) as Required by 15ANCAC 2L
.0106(k), (1), and(m)
-------
MEMORANDUM
Page 2
August 4, 1995
jurisdictions in which the plume occurs must be notified individually; and
4) the newspaper notice must follow the attached "standard newspaper format."
Effective immediately, the Section establishes the "standard letter" and the "standard
newspaper format" as shell documents for use by persons preparing public notice in accordance
with the rules. Please make these documents available to the public upon request. Copies may
also be obtained from the Pollution Control Branch. If you have questions please contact Lisa
Taber at (919) 733-1325.
Attachment
cc: Harlan Britt
Arthur Mouberry
,Lisa Taber
David Hance
-------
STANDARD LETTER OTICE'OF 'PROPERTY'OWNERS UJMQEH 4 5A" HCAC 2L"01 14(b) -
'06/15/95 version
(today ' s date)
CERTIFIED MAIL (give number of receipt)
RETURN RECEIPT REQUESTED
(name and address of property
owner/occupant required to be notified
under 15A NCAC 2L .0114(b))
SUBJECT: NOTICE CONCERNING THE REQUEST
FOR APPROVAL OF A CORRECTIVE ACTION
PLAN
(a) without the requirement to meet
groundwater quality standards
in 15A NCAC 2L .0202; and/or
b) based on the natural processes
of degradation and attenuation
of contaminants; and/or
c) to terminate corrective actions
in accordance with requirements
of 15A NCAC 2L .0106(m); AND
Give responsible party (s) name(s)
address (es) and DEM incident
number. )
Dear Mr/Ms. (property owner(s), occupant (s), or other party):
This letter is being provided to inform you that the State's
Division of Environmental Management is being requested to approve
an environmental cleanup activity in your area. In accordance with
the North Carolina General Statutes, a set of Groundwater
Classifications and Standards has been put in place for the
protection of all groundwaters across the State. Because your
property is located adjacent to or near other properties that may
be involved in groundwater cleanup, the law requires that you be
informed of the proposed activities.
STANDARD::
Version, of 2t0114v2.pn
-------
STANDARD" bETTET?-NOTlCE~OFlP)rOFEl?TY"OWNE!lS~tJND£fc 15A"NCA~C~2t7.01 lAtmM
Ofr/15/.95:.versi6il
Pursuant to the notification requirements of Title 1 5A NCAC 2L
.0114(b), (environmental consultant) on behalf of (responsible
party) is providing notice of the request for a corrective action
plan under 15A NCAC 2L .0106 ((k), (1) and/or (m)). This property
is located at (give the location of the property using at least two
street names /numbers. If this is not feasible use one road and the
distance to an identified landmark on the NCDOT county map (i.e.
named body of water, historic site, park, federal land, etc.)
Some of the constituents found at the above location are
typical of (gasoline, oil, and/or diesel fuel, etc.) and have been
detected beneath this site in concentrations which exceed the
(Groundwater Quality Standards outlined in 15A NCAC 2L .0202 AND/OR
the action levels for soil contamination contained in "Groundwater
Section Guidelines for the Investigation and Remediation of Soils
and Groundwater (March 1993)"). (Environmen tal consul tan t)
believes that if the proposed corrective action plan is approved by
the Division of Environmental Management, implementation will
result in the following:
1) (Provide a brief summary of information sent to the
Director that supports the request for a corrective
action plan under ISA NCAC 2L ,0106(k),(l) and/or (m).
Give reasons supporting the use of a 15A NCAC 2L
. 0106(k), (1) and/or (m) corrective action in lieu of any
other corrective action. Include a description of how the
public health, environment and adjacent property
uses/values are protected by this proposed corrective
action. Enumerate any additional reasons why this
corrective action plan should be relied on to remediate
the site and impacted lands. Use a number format for
each reason.)
If you would like to examine the plan, please contact (contact
person for the proponent of the correction action plan) at (area
code and phone number) . A copy will be mailed to you promptly. In
addition, the (name of) Regional Office has this proposed
corrective action plan with detailed site information on record for
public perusal. You may make copies of the information contained in
the files at a charge of 10 cents per page. Any written comments
concerning this request should be submitted within 30 days of (the
date requested CAP was submitted to DEM) to (appropriate DEM
regional hydrogeologic supervisor) of the (appropriate DEM regional
office). Please send written comments to the following address:
STANDARD LETTER-NOTICE OF PROPERTY OWNERS UND^f1::5AilNCAC 2L . 011 4 {H'ff06p'57,?.5
version:.-of: :2L0114v2::.:pn
-------
STAttfrXftD LETTER;-NOTICE''OP PROFEHTY'OWNEJRS UNPE1? lSTT^CAC^t~0I14(bT :
06/15/95 version
(DEM REGIONAL HYDROGEOLOGIC SUPERVISOR)
(APPROPRIATE DEM REGIONAL OFFICE)
(REGIONAL OFFICE ADDRESS AND ZIP CODE)
(PHONE NUMBER)
(name of) Regional Office staff may be contacted during normal
weekday business hours to answer questions pertaining to this
request or to arrange an examination of the information on file
related to this incident. Notification of this request for
approval of a corrective action plan is also being made by
certified mail to the (local health director) and (chief
administrative officer(s)).
Sincerely,
(consultant's namer title and
professional seal)
.0114(b)-06/15/95
3
-------
STANDARD DOCUMENT - NEWSPAPER PUBLICATION FOR NOTICE TO
INTERESTED £ ARTIES UNDER I5A NCAC 2L .0114(b) .. (7/95)
PUBLIC NOTICE
NOTIFICATION OF PROPOSED CORRECTIVE ACTION PLAN
FOR ENVIRONMENTAL RESTORATION
Public notice is hereby given of a proposed corrective action plan submitted pursuant to
15 A NCAC 2L .0106 ( ) finsert k,l, or tit in parentheses as appropriate andfollow with one of
the following: "using alternative groundwater quality standards", "using natural attenuation
processes", or "terminating current corrective action activities"} for the following site:
Groundwater Incident No. , (incident name, address, city,
county)
County, N.C.
Interested parties may examine the corrective action plan by contacting (contactperson
for the proponent of the corrective action plan) at (area code and phone number). In addition,
the (name of regional office) Regional Office has this proposed corrective action plan and
detailed site information on record for public perusal. You may arrange to review the file by
contacting the region at the phone number provided below.
Persons wishing to comment on or object to the proposed corrective action plan may
submit same in writing within 30 days of (date CAP was submitted to the DEM) to:
(DEM REGIONAL HYDROGEOLOGIC SUPERVISOR)
(APPROPRIATE DEM REGIONAL OFFICE)
(REGIONAL OFFICE ADDRESS AND ZEP CODE)
(AREA CODE AND PHONE NUMBER)
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1
SUBCHAPTER 15A-2N
UNDERGROUND STORAGE TANKS
See
15A-2N.01. GENERAL CONSIDERATIONS.
15A-2N.02. PROGRAM SCOPE AND INTERIM PROHIBITION.
15A-2N.03. UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND
NOTIFICATION.
15A-2N.04. GENERAL OPERATING REQUIREMENTS.
15A-2N.05. RELEASE DETECTION.
15A-2N.06. RELEASE REPORTING, INVESTIGATION, AND CONFIRMATION.
15A-2N.07. RELEASE RESPONSE AND CORRECTIVE ACTION FOR UST SYSTEMS
CONTAINING PETROLEUM OR HAZARDOUS SUBSTANCES.
15A-2N.08. OUT-OF-SERVICE UST SYSTEMS AND CLOSURE.
15A-2N.01. GENERAL CONSIDERATIONS
Rule
15A-2N.0101. GENERAL.
15A-2N.0102. COPIES OF REFERENCED FEDERAL REGULATIONS.
15A-2N.0103. ADOPTION BY REFERENCE UPDATES.
15A-2N.0104. IDENTIFICATION OF TANKS.
15A-2N.0101. GENERAL
(a) The purpose of this Subchapter is to establish the technical standards and corrective
action requirements for owners and operators of underground storage tanks.
(b) The Groundwater Section of the Division of Environmental Management shall
administer the underground storage tank program for the State of North Carolina.
(c) Division staff may conduct inspections as necessary to ensure compliance with this
Subchapter.
Statutory Authority G.S. 143-215.3(a)( 15); 143B-282(2)(h);
Eff. January 1, 1991.
15A-2N.0102. COPIES OF REFERENCED FEDERAL REGULATIONS
(a) Copies of applicable Code of Federal Regulations sections referred to in this Subchapter
are available for public inspection at Department of Environment, Health and Natural Resources
regional offices. They are:
(1) Asheville Regional Office, Interchange Building, 59 Woodfin Place, Post Office Box 370,
Asheville, North Carolina 28802;
(2) Winston-Salem Regional Office, Suite 100, 8025 North Point Boulevard, Winston-Salem,
North Carolina 27106;
(3) Mooresville Regional Office, 919 North Main Street, Mooresville, North Carolina 28115;
(4) Raleigh Regional Office, 3800 Barrett Drive, Post Office Box 27687, Raleigh, North
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Carolina 27611;
(5) Fayetteville Regional Office, Wachovia Building, Suite 714, Fayetteville, North Carolina
28301;
(6) Washington Regional Office, 1424 Carolina Avenue, Farish Building, Washington, North
Carolina 27889;
(7) Wilmington Regional Office, 7225 Wrightsville Avenue, Wilmington, North Carolina
28403.
(b) Copies of such regulations can be made at these regional offices for ten cents ($0.10) per
page.
Statutory Authority G.S. 12-3.1(c); 143-215.3(a)(l5); 143B-282(2)(h);
Eff. January 1, 1991.
15A-2N.0103. ADOPTION BY REFERENCE UPDATES
The Code of Federal Regulations adopted by reference in this Subchapter shall automatically
include any later amendments thereto as allowed by G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(l 5); 143B-282(2)(h);
Eff. January 1, 1991.
15A-2N.0104. IDENTIFICATION OF TANKS
(a) Owners and operators shall maintain at each facility a current diagram that clearly
indicates, for each underground storage tank:
(1) location with respect to property boundaries and any permanent on-site structures;
(2) total storage capacity, in gallons;
(3) the exact type of petroleum product (such as unleaded gasoline, No. 2 fuel oil, diesel) or
hazardous substance stored; and
(4) the year the tank was installed.
(b) The diagram shall be made available for inspection, during normal operating hours, to
authorized representatives of the Department.
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h);
Eff. January 1, 1991.
15A-2N.02. PROGRAM SCOPE AND INTERIM PROHIBITION
Rule
15A-2N.0201. APPLICABILITY.
15A-2N.0202. INTERIM PROHIBITION FOR DEFERRED UST SYSTEMS.
15A-2N.0203. DEFINITIONS.
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15A-2N.0201. APPLICABILITY
The provisions for "Applicability" contained in 40 CFR 280.10 (Subpart A) have been
adopted by reference in accordance with G.S. 150B-14(c) except that underground storage tanks
containing de minimis concentrations of regulated substances are subject to the requirements for
permanent closure in Rules .0802 and .0803 of this Subchapter.
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0202. INTERIM PROHIBITION FOR DEFERRED UST SYSTEMS
The provisions for "Interim Prohibition for deferred UST systems" contained in 40 CFR
280.11 (Subpart A) have been adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0203. DEFINITIONS
(a) The definitions contained in 40 CFR 280.12 (Subpart A) have been adopted by reference
in accordance with G.S. 150B-14(c).
(b) This Rule shall apply throughout this Subchapter except that:
(1) "Implementing agency" shall mean the "Division of Environmental Management."
(2) "Division" shall mean the "Division of Environmental Management."
(3) "Director" and "Director of the Implementing Agency" shall mean the "Director of the
Division of Environmental Management."
(c) The following definitions shall apply throughout this Subchapter:
(1) "De minimis concentration" means that amount of a regulated substance which does not
exceed one percent of the capacity of the tank, excluding piping and vent lines.
(2) "Expeditiously emptied after use" means the removal of a regulated substance from an
emergency spill or overflow containment UST system within 48 hours after the necessity for use
of the UST system has ceased.
(3) "Previously closed" means:
(A) An UST system from which all regulated substances had been removed using commonly
employed practices, the tank filled with a solid inert material, and tank openings were sealed or
capped prior to December 22, 1988; or
(B) An UST system removed from the ground prior to December 22, 1988.
(4) "Temporarily closed" means:
(A) An UST system from which the product has been removed such that not more than one
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inch of product and residue are present in any portion of the tank; or
(B) Any UST system in use as of December 22, 1988 which complies with the provisions of
15ANCAC 2N .0801.
(5) "Secondary containment" means a method or combination of methods of release detection
for UST systems that includes, but is not limited to:
(A) For tanks, double-walled construction, external liners (including vaults) or other
methods, approved by the Division, which meets the provisions of 40 CFR 280.42(b)(5); and
(B) For underground piping, trench liners, double-walled construction or other methods,
approved by the Division, which meet the provisions of 40 CFR 280.42(b)(5).
(6) "Person qualified to assess site conditions" means a person who, through a combination
of training and experience, is competent to evaluate the conditions existing at an UST system
site, including the physical and chemical conditions of the subsurface.
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Filed as a Temporary Amendment Eff. January 7, 1991 For a Period of 180 Days to Expire
on July 6, 1991; Eff. January 1, 1991; Temporary Amendment Expired July 6, 1991.
15A-2N.03. UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION, AND
NOTIFICATION
Rule
15A-2N.0301. PERFORMANCE STANDARDS FOR NEW UST SYSTEMS.
15A-2N.0302. UPGRADING OF EXISTING UST SYSTEMS.
15A-2N.0303. NOTIFICATION REQUIREMENTS.
15A-2N.0301. PERFORMANCE STANDARDS FOR NEW UST SYSTEMS
(a) The "Performance standards for new UST systems" contained in 40 CFR 280.20 (Subpart
B) have been adopted by reference in accordance with G.S. 150B-14(c) except that:
(1) 40 CFR 280.20(a)(2)(iv) has been changed to read "Cathodic protection systems are
operated and maintained in accordance with 15A NCAC 2N .0402, or as approved by the
Director;"
(2) 40 CFR 280.20(b)(2)(iv) has been changed to read "Cathodic protection systems are
operated and maintained in accordance with 15A NCAC 2N .0402 or as approved by the
Director;"
(3) 40 CFR 280.20(a)(4) is not adopted by reference; and
(4) 40 CFR 280.20(b)(3) is not adopted by reference.
(b) No UST system shall be installed within 100 feet of a well serving a public water system,
as defined in 15A NCAC 18C .0102, or within 50 feet of any other well supplying water for
human consumption.
(c) An UST system, existing on the date of adoption of this Subchapter and located within
the area described in Paragraph (b) of this Rule, may be replaced with a new tank meeting the
performance standards of 40 CFR 280.20 and the secondary containment provisions of 40 CFR
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280.42(b)(1) through (4). The replacement UST system may not be located nearer to the water
supply source than the UST system being replaced.
(d) Except as prohibited in Paragraph (b) of this Rule an UST system must meet the
requirements for secondary containment described at 40 CFR 280.42(b)(1) through (4) if
installed:
(1) within 500 feet of a well serving a public water supply or within 100 feet of any other
well supplying water for human consumption; or
(2) within 500 feet of any surface water classified as High Quality Water (HQW),
Outstanding Resource Waters (ORW), WS-I, WS-II, or SA;
(3) in a location determined by the Director to be unsuitable for conventional installation
based on an evaluation of the site by Division staff.
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0302. UPGRADING OF EXISTING UST SYSTEMS
(a) The provisions for "Upgrading of existing UST systems" contained in 40 CFR 280.21
(Subpart B) have been adopted by reference in accordance with G.S. 150B-14(c) except that
existing UST systems located within areas defined at Rule .0301(b) and (d) of this Section shall
be upgraded in accordance with the provisions of 40 CFR 280.21(b) through (d) and shall be
provided secondary containment as described at 40 CFR 280.42(b)(1) through (4). An UST
system so upgraded may not be relocated nearer to a source of drinking water supply than its
location prior to being upgraded.
(b) Owners must submit to the Division, on forms provided by the Division, and within 30
days following completion, a description of the upgrading of any UST system conducted in
accordance with the requirements of 40 CFR 280.21.
(c) UST systems upgraded in accordance with 40 CFR 280.21 prior to the adoption of this
Subchapter are in compliance with these Rules.
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0303. NOTIFICATION REQUIREMENTS
The "Notification requirements" contained in 40 CFR 280.22 (Subpart B) have been adopted
by reference in accordance with G.S. 150B-14(c) except that:
(1) Any owner of an UST system must submit to the Division, on forms provided by the
Division, a notice of intent to conduct any of the following activities:
(a) Installation of a new UST system;
(b) Installation of a leak detection device installed outside of the outermost wall of the tank
and piping, such as vapor detection or groundwater monitoring devices; and
(c) Permanent closure or change-in-service of an UST system.
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(2) Notification as required in Paragraph (1) of this Rule shall be given at least 30 days
before the activity is begun except as authorized by the Director.
(3) Owners and operators of UST systems that were in the ground on or after May 8, 1986,
were required to notify the Division in accordance with the Hazardous and Solid Waste
Amendments of 1984, Public Law 98-616, on a form published by the Environmental Protection
Agency on November 8, 1985 (50-FR 46602) unless notice was given pursuant to Section 103(c)
of CERCLA. Owners or operators who have not complied with the notification requirements
may complete the appropriate portions of the form, provided by the Division, and submit the
form to the Division.
(4) 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 owners's notification
obligations under Paragraphs (1) and (2) of this Rule.
(5) Any reference in 40 CFR 280 to the notification form in Appendix I shall refer to the
North Carolina notification form approved by the Division and EPA.
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.04. GENERAL OPERATING REQUIREMENTS
Rule
15A-2N.0401. SPILL AND OVERFILL CONTROL.
15A-2N.0402. OPERATION AND MAINTENANCE OF CORROSION PROTECTION.
15A-2N.0403. COMPATIBILITY.
15A-2N.0404. REPAIRS ALLOWED.
15A-2N.0405. REPORTING AND RECORDKEEPING.
15A-2N.0401. SPILL AND OVERFILL CONTROL
The provisions for "Spill and overfill control" contained in 40 CFR 280.30 (Subpart C) have
been adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(l 5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0402. OPERATION AND MAINTENANCE OF CORROSION PROTECTION
The provisions for "Operation and maintenance of corrosion protection" contained in 40 CFR
280.31 (Subpart C) have been adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0403. COMPATIBILITY
The provisions for "Compatibility" contained in 40 CFR 280.32 (Subpart C) have been
adopted by reference in accordance with G.S. 150B-14(c).
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Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0404. REPAIRS ALLOWED
The "Repairs allowed" provisions contained in 40 CFR 280.33 (Subpart C) have been
adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0405. REPORTING AND RECORDKEEPING
(a) The "Reporting and recordkeeping" procedures contained in 40 CFR 280.34 (Subpart C)
have been adopted by reference in accordance with G.S. 15OB- 14(c).
(b) Owners and operators must also submit to the Division, on forms provided by the
Division and within 30 days following completion, results of the site investigation conducted:
(1) at permanent closure; or
(2) to insure compliance with the requirements for installation of vapor monitoring and
groundwater monitoring devices, as specified in 40 CFR 280.43(e)(1) through (e)(4) and
280.43(f)(1) through (f)(5), respectively.
(c) Owners must submit to the Division, on forms provided by the Division, and within 30
days following completion:
(1) A description of the upgrading of any UST system conducted in accordance with the
requirements of 40 CFR 280.21;
(2) Certification of the proper operation of a corrosion protection system upon completion of
testing and at a frequency and in a manner specified in 40 CFR 280.31; and
(3) Certification of compliance with the requirements for leak detection specified in 40 CFR
280.40, 40 CFR 280.41, 40 CFR 280.42, 40 CFR 280.43 and 40 CFR 280.44. The certification
must specify the leak detection method and date of compliance for each UST.
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.05. RELEASE DETECTION
Rule
15A-2N.0501. GENERAL REQUIREMENTS FOR ALL UST SYSTEMS.
15A-2N.0502. REQUIREMENTS FOR PETROLEUM UST SYSTEMS.
15A-2N.0503. REQUIREMENTS FOR HAZARDOUS SUBSTANCE UST SYSTEMS.
15A-2N.0504. METHODS OF RELEASE DETECTION FOR TANKS.
15A-2N.0505. METHODS OF RELEASE DETECTION FOR PIPING.
15A-2N.0506. RELEASE DETECTION RECORDKEEPING.
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15A-2N.0501. GENERAL REQUIREMENTS FOR ALL UST SYSTEMS
The "General requirements for all UST systems" provisions contained in 40 CFR 280.40
(Subpart D) have been adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0502. REQUIREMENTS FOR PETROLEUM UST SYSTEMS
The "Requirements for petroleum UST systems" provisions contained in 40 CFR 280.41
(Subpart D) have been adopted by reference in accordance with G.S. 150B-14(c) except that UST
systems designated in Rule .0301(d) must meet the requirements for secondary containment
described at 40 CFR 280.42(b)(1) through (4).
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0503. REQUIREMENTS FOR HAZARDOUS SUBSTANCE UST SYSTEMS
The "Requirements for hazardous substance UST systems" provisions contained in 40 CFR
280.42 (Subpart D) have been adopted by reference in accordance with G.S. 150B-14(c) except
that the requirements for secondary containment described at 40 CFR 280.42(b)(1) through (4)
shall also apply to petroleum UST systems described at Rule .0301(d).
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0504. METHODS OF RELEASE DETECTION FOR TANKS
(a) The "Methods of release detection for tanks" contained in 40 CFR 280.43 (Subpart D)
have been adopted by reference in accordance with G.S. 150B-14(c) except that:
(1) 40 CFR 280.43 (d)(2) is amended to read: "Inventory control, or another test of
equivalent performance approved by the Department, conducted in accordance with the
requirements of 40 CFR 280.43(a)";
(2) 40 CFR 280.43(f)(7) is amended to read: "Within and immediately below the UST
system excavation zone, the site is assessed to ensure compliance with the requirements of 40
CFR 280.43(f)(1) through (f)(5), as modified by this Rule, and to establish the number and
positioning of monitoring wells or devices that will detect releases from any portion of the tank
that routinely contains products"; and
(3) 40 CFR 280.43(f)(3), (f)(4), and (f)(5) are not adopted by reference.
(b) Wells used for monitoring or testing for liquids on the groundwater shall be:
(1) For new installations, located within and at the end of the excavation having the lowest
elevation and along piping at intervals not exceeding 50 feet; or
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(2) For existing installations, located in the excavation zone or as near to it as technically
feasible and installed in a borehole at least four inches larger than the diameter of the casing;
(3) A minimum of two inches in diameter. The number of wells installed must be sufficient
to detect releases from the UST system;
(4) Equipped with a screen that extends from two feet below land surface to a depth of 20
feet below land surface or two feet below the seasonal low water level, whichever is shallower.
The screen shall be designed and installed to prevent the migration of natural soils or filter pack
into the well while allowing the entry of regulated substances into the well under both high and
low groundwater level conditions;
(5) Surrounded with a clean sand or gravel to the the top of the screen, plugged and grouted
the remaining distance to finished grade with cement grout;
(6) Constructed of a permanent casing and screen material that is inert to the stored substance
and is corrosion resistant;
(7) Developed upon completion of installation until the water is clear and relatively sediment
free;
(8) Protected with a water tight cover and lockable cap;
(9) Labeled as a liquid monitor well; and
(10) Equipped with a continuously operating liquid leak detection device; or
(A) For tanks storing petroleum products, tested at least once every 14 days with a device or
hydrocarbon-sensitive paste capable of detecting the liquid stored; or
(B) For tanks storing hazardous substances, sampled and tested at least once every 14 days
for the presence of the stored substance.
(c) Wells used for monitoring or testing for liquids on the groundwater at new installations,
and constructed in accordance with Paragraph (b) of this Rule, shall be deemed to be permitted in
accordance with the requirements of 15A NCAC 2C .0105.
(d) Any person completing or abandoning any well, used for testing of vapors or monitoring
for liquids on the groundwater, shall submit the record required by Rule .0114(b) of the Well
Construction Standards (15A NCAC 2C .0100).
(e) The site assessments required by 40 CFR 280.43(e)(6) and 40 CFR 280.43(f)(7) shall be
conducted by or under the supervision of a person qualified to assess site conditions.
(f) Wells used for monitoring for the presence of vapors in the soil gas of the excavation
zone shall be equipped with a continuously operating vapor detection device or tested at least
once every 14 days for the presence of the substance stored.
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0505. METHODS OF RELEASE DETECTION FOR PIPING
The "Methods of release detection for piping" provisions contained in 40 CFR 280.44
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(Subpart D) have been adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0506. RELEASE DETECTION RECORDKEEPING
The provisions for "Release detection recordkeeping" contained in 40 CFR 280.45 (Subpart
D) have been adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215,3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.06. RELEASE REPORTING, INVESTIGATION, AND CONFIRMATION
Rule
15A-2N.0601. REPORTING OF SUSPECTED RELEASES.
15A-2N.0602. INVESTIGATION DUE TO OFF-SITE IMPACTS.
15A-2N.0603. RELEASE INVESTIGATION AND CONFIRMATION STEPS.
15A-2N.0604. REPORTING AND CLEANUP OF SPILLS AND OVERFILLS.
15A-2N.0601. REPORTING OF SUSPECTED RELEASES
The provisions for "Reporting of suspected releases" contained in 40 CFR 280.50 (Subpart E)
have been adopted by reference in accordance with G.S. 150B-14(c), except that the words, "or
another reasonable time period specified by the implementing agency," are deleted from the first
sentence.
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0602. INVESTIGATION DUE TO OFF-SITE IMPACTS
The "Investigation due to off-site impacts" provisions contained in 40 CFR 280.51 (Subpart
E) have been adopted by reference in accordance with G.S. 150B-14(c).
Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0603. RELEASE INVESTIGATION AND CONFIRMATION STEPS
The "Release investigation and confirmation steps" provisions contained in 40 CFR 280.52
(Subpart E) have been adopted by reference in accordance with G.S. 150B-14(c), except that the
first sentence has been rewritten to read: "Unless corrective action is initiated in accordance with
Subpart F, owners must immediately investigate and confirm all suspected releases of regulated
substances requiring reporting under 40 CFR 280.50 within seven days, unless approval for an
extension of time has been granted by the Division before the seven days have expired, and only
upon a showing of good cause by the owner or operator of the UST system. In conducting such
investigations, owners and operators must use either the following steps or another procedure
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approved by the Division."
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0604. REPORTING AND CLEANUP OF SPILLS AND OVERFILLS
The "Reporting and cleanup of spills and overfills" provisions contained in 40 CFR 280.53
(Subpart E) have been adopted by reference in accordance with G.S. 150B-14(c), except that:
(1) In 40 CFR 280.53(a) and (b), the words, "or another reasonable time period specified by
the implementing agency," are not adopted by reference;
(2) In 40 CFR 280.53(a)(1) and (b), the words, "or another reasonable amount specified by
the implementing agency" are not adopted by reference; and
(3) The time periods within which reports required by the provisions of 40 CFR 280.53 must
be submitted to the Division may be extended upon approval of requests made to the Division by
the owner or operator, before the expiration of the time period and upon a showing of good
cause.
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
I5A-2N.07. RELEASE RESPONSE AND CORRECTIVE ACTION FOR UST
SYSTEMS CONTAINING PETROLEUM OR HAZARDOUS SUBSTANCES
Rule
15A-2N.0701. GENERAL.
15A-2N.0702. INITIAL RESPONSE.
15A-2N.0703. INITIAL ABATEMENT MEASURES AND SITE CHECK.
15A-2N.0704. INITIAL SITE CHARACTERIZATION.
15A-2N.0705. FREE PRODUCT REMOVAL.
15A-2N.0706. INVESTIGATIONS FOR SOIL AND GROUND WATER CLEANUP.
15A-2N.0707. CORRECTIVE ACTION PLAN.
15A-2N.0708. PUBLIC PARTICIPATION.
15A-2N.0701. GENERAL
(a) The "General" provisions contained in 40 CFR 280.60 (Subpart F) have been adopted by
reference in accordance with G.S. 150B-14(c).
(b) Any corrective action undertaken in accordance with this Section must meet the
requirements and standards specified in 15A NCAC 2L .0106.
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
I5A-2N.0702. INITIAL RESPONSE
The provisions for "Initial response" contained in 40 CFR 280.61 (Subpart F) have been
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adopted by reference in accordance with G.S. 150B-14(c), except that the words, "or another
reasonable time period specified by the implementing agency," in the first sentence are not
adopted by reference.
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0703. INITIAL ABATEMENT MEASURES AND SITE CHECK
The provisions for "Initial abatement measures and site check" contained in 40 CFR 280.62
(Subpart F) have been adopted by reference in accordance with G.S. 150B-14(c), except that:
(1) 40 CFR 280.62(a)(6) is rewritten to read, "Investigate to determine the possible presence
of free product, and begin free product removal within 14 days in accordance with 40 CFR
280.64, unless approval for an extension of-time has been granted by the Division upon a
showing of good cause, prior to the expiration of the time period"; and
(2) In 40 CFR 280.62(b) the words, "or within another reasonable period of time determined
by the implementing agency," are not adopted by reference.
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0704. INITIAL SITE CHARACTERIZATION
The provisions for "Initial site characterization" contained in 40 CFR 280.63 (Subpart F)
have been adopted by reference in accordance with G.S. 150B- 14(c), except that in 40 CFR
280.63(b) the words, "or another reasonable period of time determined by the implementing
agency," are replaced by the words, "unless prior approval has been granted by the Division upon
a showing of good cause, before the 45 days have expired."
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0705. FREE PRODUCT REMOVAL
The provisions for "Free product removal" contained in 40 CFR 280.64 (Subpart F) have
been adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0706. INVESTIGATIONS FOR SOIL AND GROUND WATER CLEANUP
The provisions for "Investigations for soil and ground-water cleanup" contained in 40 CFR
280.65 (Subpart F) have been adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
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13
15A-2N.0707. CORRECTIVE ACTION PLAN
The provisions for a "Corrective action plan" contained in 40 CFR 280.66 (Subpart F) have
been incorporated by reference including any subsequent amendments and editions with the
exception of the following Paragraph. This material is available for inspection at the Department
of Environment, Health, and Natural Resources, Division of Environmental Management,
Groundwater Section, 512 North Salisbury Street, Raleigh, North Carolina. Copies of 40 CFR
Parts 260 to 299 may be obtained from the Superintendent of Documents, Government Printing
Office, Washington, D.C., 20402 at a cost of thirty-one dollars ($31.00).
40 CFR 280.66(a) has been rewritten to read: "At any point after reviewing the information
submitted in compliance with 40 CFR 280.61 through 40 CFR 280.63, the Division 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 prepare a plan in accordance with the requirements specified in 15 A NCAC
2L .0106, and submit it according to a schedule and format established by the Division. Owners
and operators are responsible for submitting a plan that provides for adequate protection of
human health and the environment as determined by the Division, and must modify their plan as
necessary to meet this standard".
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h);
Eff. January 1, 1991; Amended Eff. September 1, 1992.
15A-2N.0708. PUBLIC PARTICIPATION
The provisions for "Public participation" contained in 40 CFR 280.67 (Subpart F) have been
adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.08. OUT-OF-SERVICE UST SYSTEMS AND CLOSURE
Rule
15A-2N.0801. TEMPORARY CLOSURE.
15A-2N.0802. PERMANENT CLOSURE AND CHANGES-IN-SERVICE.
15A-2N.0803. ASSESSING THE SITE AT CLOSURE OR CHANGE-IN-SERVICE.
15A-2N.0804. APPLICABILITY TO PREVIOUSLY CLOSED UST SYSTEMS.
15A-2N.0805. CLOSURE RECORDS.
15A-2N.0801. TEMPORARY CLOSURE
The provisions for "Temporary closure" contained in 40 CFR 280.70 (Subpart G) have been
adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0802. PERMANENT CLOSURE AND CHANGES-IN-SERVICE
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14
The provisions for "Permanent closure and changes-in-service" contained in 40 CFR 280.71
(Subpart G) have been adopted by reference in accordance with G.S. 150B-14(c) except that an
UST system containing de minimis concentrations of a regulated substance must meet the
closure requirements of this Rule within 12 months of the effective date of this Subchapter.
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0803. ASSESSING THE SITE AT CLOSURE OR CHANGE-IN-SERVICE
The provisions for "Assessing the site at closure or change-in-service" contained in 40 CFR
280.72 (Subpart G) have been adopted by reference in accordance with G.S. 150B-14(c), except
that:
(1) references to methods and requirements have been expanded to include all applicable
references and methods listed in 15 A NCAC 2N .0504;
(2) site assessments shall be conducted by a person qualified to assess site conditions; and
(3) the number and location of samples, and method of their collections shall be determined
in accordance with procedures established by the Department.
Statutory Authority G.S. 143-215.3(a)(l5); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0804. APPLICABILITY TO PREVIOUSLY CLOSED UST SYSTEMS
The "Applicability to previously closed UST systems" provisions contained in 40 CFR
280.73 (Subpart G) have been adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
15A-2N.0805. CLOSURE RECORDS
The "Closure records" provisions contained in 40 CFR 280.74 (Subpart G) have been
adopted by reference in accordance with G.S. 150B-14(c).
Statutory Authority G.S. 143-215.3(a)(15); 143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991.
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North Carolina Ad mini
Title 15A
Department of Enviro
Division of Water Qual
ode
t, Health, and Natural Resources
¦¦HHMMMNMMnnmimnumm
"WrefflM
|
agement Commission
Subchapter 2N
Sections .0100
thru .0800
Criteria and
Standards
Applicable To
Underground
Storage Tanks
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Dear Citizen:
The following pages describe the criteria and standards
applicable to Underground Storage Tanks for the State of North
Carolina. Because the State Underground Storage Tank rules adept much
of the federal regulations, the federal regulations are incorporated
into the document for your convenience. Each federal section is
preceded with the words "Adeption by Reference" and followed by a
History Note. The federal sections are also printed in a bold type.
We appreciate your interest in groundwater protection and hope
you will find the enclosed Rules useful.
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TABLE OF CONTENTS
SUBCHAPTER 2N
UNDERGROUND STORAGE TANKS
Page
SECTION .0100 GENERAL CONSIDFRATIONS
.0101 GENERAL 1
.01 02 COPIES OF REFERENCED FEDERAL REGULATIONS 1
.0103 ADOPTION BY REFERENCE UPDATES 2
.0104 IDENTIFICATION OF TANKS 2
SECTION .0200 PROGRAM SCOPE AND INTERIM PROHIBITIONS
.0201 APPLICABILITY 3
40 CFR §280.10
.0202 INTERIM PROHIBITION FOR DEFERRED UST SYSTEMS 4
40 CFR §280.11
.0203 DEFINITIONS 4
40 CFR §280.12 5
SECTION .0300 UST SYSTEMS:
DESIGN CONSTRUCTION INSTALLATION AND NOTIFICATION
.0301 PERFORMANCE STANDARDS FOR NEW UST SYSTEMS 1 3
40 CFR §280.20 1 3
.0302 UPGRADING OF EXISTING UST SYSTEMS 18
40 CFR §280.21 1 9
.0303 NOTIFICATION REQUIREMENTS 21
40 CFR §280.22 21
SECTION .0400 GENERAL OPERATING REQUIREMENTS
.0401 SPILL AND OVERFILL CONTROL 23
40 CFR §280.30
.0402 OPERATION AND MAINTENANCE OF CORROSION PROTECTION 2 3
40 CFR §280.31 2 3
.0403 COMPATIBILITY 2 4
40 CFR §280.32 24
.0404 REPAIRS ALLOWED 2 5
40 CFR §280.33
.0405 REPORTING AND RECORD KEEPING 2 6
40 CFR §280.34 27
SECTION .0500 RELEASE DETECTION
.0501 GENERAL REQUIREMENTS FOR ALL UST SYSTEMS 2 9
40 CFR §280.40 2 9
.0502 REQUIREMENTS FOR PETROLEUM UST SYSTEMS 30
40 CFR §280.41 3 0
.0503 REQUIREMENTS FOR HAZARDOUS SUBSTANCE UST SYSTEMS 32
40 CFR §280.42 32
.0504 METHODS OF RELEASE DETECTION FOR TANKS 3 3
40 CFR §280.43 3 5
.0505 METHODS OF RELEASE DETECTION FOR PIPING 3 9
40 CFR §280.44
.0506 RELEASE DETECTION RECORD KEEPING 40
40 CFR §280.45
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SECTION .0600 RELEASE REPORTING. INVESTIGATION AND CONFIRMATION
.0601 REPORTING OF SUSPECTED RELEASES 4 2
40 CFR §280.50
.0602 INVESTIGATION DUE TO OFF-SITE IMPACTS 42
40 CFR §280.51 .....4 3
.0603 RELEASE INVESTIGATION AND CONFIRMATION STEPS 4 3
40 CFR §280.52
.0604 REPORTING AND CLEANUP OF SPILLS AND OVERFILLS 4 4
40 CFR §280.53 4 5
SECTION .0700 RELEASE RESPONSE AND CORRECTIVE ACTION
FOR UST SYSTEMS CONTAIIMINfi PETROLFIJM
OR HAZARDOUS SUBSTANCES
.0701 GENERAL 46
40 CFR §280.60
.0702 INITIAL RESPONSE 4 6
40 CFR §280.61
.0703 INITIAL ABATEMENT MEASUREMENTS AND SITE CHECK 47
40 CFR §280.62
.0704 INITIAL SITE CHARACTERIZATION 48
40 CFR §280.63
.0705 FREE PRODUCT REMOVAL 4 9
40 CFR §280.64
.0706 INVESTIGATIONS FOR SOIL AND GROUNDWATER CLEANUP 5 0
40 CFR §280.65
.0707 CORRECTIVE ACTION PLAN 51
40 CFR §280.66
.0708 PUBLIC PARTICIPATION 52
40 CFR §280.67
SECTION .0800 OUT-OF-SERVICE UST SYSTEMS AND CLOSURE
.0801 TEMPORARY CLOSURE 54
40 CFR §280.70
.0802 PERMANENT CLOSURE AND CHANGES-IN-SERVICE 54
40 CFR §280.71 5 5
.0803 ASSESSING THE SITE AT CLOSURE OR CHANGE-IN-SERVICE 5 6
40 CFR §280.72
.0804 APPLICABILITY TO PREVIOUSLY CLOSED UST SYSTEMS 5 6
40 CFR §280.73 5 6
.0805 CLOSURE RECORDS 57
40 CFR §280.74
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SUBCHAPTER 2N - UNDERGROUND STORAGE TANKS
SECTION .0100 GENERAL CCNSIDERATICNS
.0101 GENERAL
(a) The purpose of this Subchapter is to establish the technical
standards and corrective action requirements for owners and operators
of underground storage tanks.
(b) Ihe Groundwater Section of the Division of Environmental
Management shall administer the underground storage tank program for
the State of North Carolina.
(c) Division staff may conduct inspections as necessary to ensure
canpliance with this Subchapter.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h);
Eff. January 1, 1991
.0102 COPIES OF REFERENCED FEDERAL REGULATIONS
(a) Copies of applicable Code of Federal Regulations sections
referred to in this Subchapter are available for public inspection at
Department of Environment, Health and Natural Resources regional
offices. They are:
(1) Asheville Regional Office, Interchange Building, 59 Woodfin
Place, Asheville, North Carolina 28801;
(2) Winston-Salem Regional Office, Suite 100, 8025 North Point
Boulevard, Winston-Salem, North Carolina 27106;
(3) Mooresville Regional Office, 919 North Main Street,
Moaresville, North Carolina 28115;
(4) Raleigh Regional Office, 3800 Barrett Drive, Post Office
Box 27687, Raleigh, North Carolina 27609;
(5) Fayetteville Regional Office, Wachovia Building, Suite 714,
Fayetteville, North Carolina 28301;
(6) Washington Regional Office, 1424 Carolina Avenue, Farish
Building, Washington, North Carolina 27889;
(7) Wilmington Regional Office, 127 Cardinal Drive Extension,
Wilmington, North Carolina 28405-3845.
(b) Copies of such regulations can be made at these regional
offices for ten cents ($0.10) per page.
History Note: Statutory Authority G.S. 12-3.1(c);
143-215.3(a)(15); 143B-282(2)(h)
Eff. January 1, 1991
Page 1
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.0103 ADOPTION BY REFERENCE UPDATES
Ihe Code of Federal Regulations adopted by reference in this
Subchapter shall automatically include any later amendments thereto as
allowed by G.S. 150B-I4(c).
History Note: Statutory Authority G.S. 143-215.3(a) (15);
143B-282(2)(h);
Eff. January 1, 1991
.0104 IDENTIFICATION OF TANKS
(a) Owners and operators shall maintain at each facility a current
diagram that clearly indicates, for each underground storage tank:
(1) location with respect to property boundaries and any
permanent on-site structures;
(2) total storage capacity, in gallons;
(3) the exact type of petroleum product (such as unleaded
gasoline, No. 2 fuel oil, diesel) or hazardous substance
stared; and
(4) the year the tank was installed.
(b) Bie diagram shall be made available for inspection, during
normal operating hours, to authorized representatives of the
Department.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h);
Eff. January 1, 1991
Page 2
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SECTION .0200 PROGRAM SCOPE AND INTERIM PROHIBITION
.0201 APPLICABILITY
The provisions for "Applicability" contained in 40 CFR 280.10
(Subpart A) have been adopted by reference in accordance with G.S.
150B-14(c) except that underground storage tanks containing de minimis
concentrations of regulated substances are subject to the requirements
for permanent closure in Rules .0802 and .0803 of this Subchapter.
Adoption bv Reference
§ 280.10 Applicability.
(a) The requirements of this Fart apply to all owners and operators
of an UST system as defined in § 280.12 except as otherwise provided
in paragraphs (b), (c), and (d) of this section. Any UST system
listed in paragraph (c) of this section must meet the requirements of
§ 280.11.
(b) Ihe following UST systems are excluded from the requirements of
this Part:
(1) Any UST system holding hazardous wastes 1 ¦*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 Section 402 or
307(b) of the Clean Water Act.
(3) Equipment or machinery that oontains regulated substances
for operational purposes such as hydraulic 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 or overflow containment UST system that
is expeditiously eqptied after use.
(c) Deferrals. Subparts B, C, D, E, and G do not apply to any of
the following types of UST systems:
(1) Wastewater treatment tank systems;
(2) Any UST systems containing radioactive material that are
regulated under the Atomic Energy Act of 1954 (42 USC 2011
and following);
(3) Any UST system that is part of an emergency generator system
at nuclear power generation facilities regulated by the
Nuclear Regulatory Commission under 10 (IR 50 Appendix A;
(4) Airport hydrant fuel distribution systems; and
(5) UST systems with field-constructed tanks.
(d) Deferrals. Subpart D does not apply to any UST system that
stares fuel solely far use by emergency power generators.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
Page 3
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.0202 INIHUM FFOnBITICN FOR DEFERRED UST SYSTEMS
The provisions far "Interim Prohibition for deferred UST systems"
contained in 40 CFR 280.11 (Subpart A) have been adopted by reference
in accordance with G.S. 150B-14(c).
Adoption bv Reference
§ 280.11 Interim Prohibition for deferred UST systems.
(a) No person nay install an UST system listed in § 280.10(c) for
the purpose of staring regulated substances mless the UST system
(whether of single- or double-wall construction):
(1) Hill prevent releases due to corrosion or structural failure
for the operational life of the UST systen;
(2) Is cathodically protected against corrosion, constructed of
nonoarrodible material, steel clad with a nonoarrodihle
material, or designed in a manner to prevent the release or
threatened release of any stared substance; and
(3) Is constructed or lined with material that is mnpat-ihi**
with the stared substance.
(b) Notwithstanding paragraph (a) of this section, an UST system
without oarxosion protection may be installed at a site that is
determined by a oarxosion expert not to be corrosive enough to cause
it to have a release due to corrosion during its operating life.
Owners and operators oust maintain records that demonstrate carpi ianoe
with the requirements of this paragraph far the remaining life of the
tank.
I Note: The National Association of Obtrusion Engineers Standard
RP-02-85, "Control of External Garros ion an Metallic Buried,
Partially Buried, ar Submerged T.iquid Storage Systems," may be
used as guidance far complying with paragraph (b) of this
section. ]
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0203 DEFINITIONS
(a) The definitions contained in 40 CFR 280.12 (Subpart A) have
been adopted by reference in accordance with G.S. 150B-14(c).
(b) This Rule shall apply throughout this Subchapter except that:
(1) "Implementing agency" shall mean the "Division of
Environmental Management."
(2) "Division" shall mean the "Division of Environmental
Management."
(3) "Director" and "Director of the Implementing Agency" shall
mean the "Director of the Division of Environmental
Management."
Page 4
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(c) The following definitions shall apply throughout this
Subchapter:
(1) "De minimis concentration" means that amount of a regulated
substance which does not exceed one percent (1%) of the
capacity of the tank, excluding piping and vent lines.
(2) "Expeditiously emptied after use" means the removal of a
regulated substance frcm an emergency spill or overflow
containment UST system within 48 hours after the necessity
for use of the UST system has ceased.
(3) "Previously closed" means:
(A) An UST system from which all regulated substances had
been removed using commonly enployed practices, the tank
filled with a solid inert material, and tank openings
were sealed oar capped prior to December 22, 1988; or
(B) An UST system removed from the ground prior to
December 22, 1988.
(4) "Temporarily closed" means:
(A) An UST system from which the product has been removed
such that not more than one inch of product and residue
are present in any portion of the tank; or
(B) Any UST system in use as of December 22, 1988 which
complies with the provisions of 15A NCAC 2N .0801.
(5) "Secondary containment" means a method or combination of
methods of release detection for UST systems that includes,
but is not limited to:
(A) For tanks, double-walled construction, external liners
(including vaults) or other methods, approved by the
Division, which meets the provisions of 40 CFR
280.42(b)(5); and
(B) For underground piping, trench liners, double-walled
construction or other methods, approved by the Division,
which meet the provisions of 40 CFR 280.42(b)(5).
(6) "Person qualified to assess site conditions" means a person
who, through a combination of training and experience, is
ocnpetent to evaluate the conditions existing at an UST
system site, including the physical and chemical conditions
of the subsurface.
Adoption bv Reference
§ 280.12 Definitions.
"Aboveground release" means any release to the surface of the
land cor 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 suhstannR moves to got from an UST system.
Page 5
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"Ancillary equipment" means any devices including, but not
1 inn tfd to, suctv devices as piping, fittings, flanges, valves, and
props used to distribute, meter, or oontrol the flow of regulated
substances to and from an UST.
"Belowground relwsp" means any release to the subsurface of the
land and to ground Mater, ibis includes, but is not limited to,
releases £rcn the WnHjrqud portions of an uidexgromd storage tank
system and belcwground releases associated with overfills and transfer
operations as the regulated substance moves to cor from an underground
storage tank.
"Beneath the surface of the grand" means beneath the ground
surface or otherwise covered with earthen materials.
"Cathodic protection" is a technique to prevent corrosion of a
metal surface by making that surface the cathode of an electrodiemical
cell. Far example, a tank system can be cathodically protected
through the application of either galvanic anodes ac inpressed
current.
"Cathodic protection tester" means a person Wx> can demonstrate
an understanding of the principles and measurements of all mim-ii
types of cathodic protection systems as applied to buried or submerged
metal piping and tank systems. At a mini mm, such persons nust 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.
"CESCIA" means the Cbqprehensive Environmental Response,
Cbnpensation, and Liability Act of 1980, as amended.
''Compatible" means the ability of two or more substances to
maintain their respective physical and chemical properties upon
contact with one another far the design life of the tank system under
conditions likely to be encountered in the UST.
"Connected piping" means all underground piping including valves,
elbows, joints, flanges, and connectors attached to a tank
system through which regulated substances flow. Ftar the purpose of
determining how nuch piping is ocmected to any individual UST system,
the piping that joins two UST systems diould be allocated equally
between them.
"Consumptive use" with respect to heating oil means onrcamed on
the premises.
"Cbrrosian expert" means a person %*x>, 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 central en buried or submerged metal piping systems and
tanks. Such a persui nust be accredited or certified as being
Page 6
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qualified by the National Association of Corrosion Bngireers or be a
registered professional engineer who has certification or licensing
that includes education and experience in corrosion aontrol of boded
car submerged metal piping systems and tanks
"Dielectric material" means a material that does not conduct
direct electrical current. Dielectric coatings are used to
electrically isolate LET systems from the surrt*«iing soils.
Dielectric bushings are used to electrically isolate portions of the
1ST system (e.g., tank from piping).
"Electrical equipment" means undergiumd equipment that contains
dielectric fluid that is necessary far the operation of equipment such
as transformers and buried electrical cable.
"Excavation zcne" means the volume containing the tank system and
backfill material bounded by the ground surface, walls, and floor of
the pit and trendies into t&iicii the UST system is piannH at the
of installation.
"Existing tank system" means a tank system used to contain an
aocuiulation of regulated si±stanoes or far which installation has
commenced on or before December 22, 1988. Installation is considered
to have commenced if:
(a) the owner ar operator has obtained all federal, state, and
local approvals ar permits necessary to begin physical construction of
the site or installation of the tank system; and if,
(b)(1) either a continuous on-site physical construction ar
installation program has begun; ar,
(2) the amer ar operator has entered into contractual
obligations—which cannot be cancelled ar modified without substantial
loss—far physical oat is Line Lion at the site ar installation of the
tank system to be oonpletad within a reasonable time.
"Farm tank" is a tank located on a tract of land devoted to the
production of crops ar raising animals, including fish, and associated
residences and iimprovements. A farm tank oust be located an the farm
property. "Farm" includes fish hatcheries, rangeland and nurseries
with growing operations.
"Flow-through process tank" is a tank that farms an integral part
of a production process through whicii there is a steady, variable,
recurring, ar intermittent flow of materials during the operation of
the process. Flow-through process tanks do not include tanks used far
the storage of materials prior to their introduction into the
production process ar far the storage of finished products ar
by-products from the production process.
"Free product" refers to a regulated substance that is present as
a nonaqueous phase liquid (e.g., liquid not dissolved in water.)
Page 7
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"Gathering lines" scans any pipeline, equipment, facility, cor
building used in the transportation of oil, or gas during rni or gas
production or gathering operations.
"Hazardous sdbetance LET 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 1980 (but not including any substance regulated as a
hazardous waste under subtitle C) or any mixture of such substances
and petroleun, and viiicii is not a petroleun UET 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 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.
"Hydraulic lift tank" means a tank holding hydraulic fluid far a
closed-loop mechanical system that uses compressed air or hydraulic
fluid to operate lifts, elevators, and other sHm-Mar- devices.
"Implementing agency" means EPA, or, in the case of a state with
a program approved under sectien 9004 (or pursuant to a memorandum of
agreement with EPA), the designated state or local agency responsible
far carrying out an approved UST program.
"Liquid trap" means suqps, 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.
"Maintenance" means the normal operational upkeep to prevent an
underground storage tank system from releasing product.
"Motor fuel" means petroleun or a petrol eim-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.
"New tank system" means a tank system that will be used to
contain an accuiulation of regulated substances and far which
installation has oonroenced after December 22, 1988.
(See also "Existing T&nk System.")
"Nanocmnercial purposes" with respect to motor fuel means not far
resale.
Page 8
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"On the premises viiere stared" with respect to heating oil means
UST systems located on the same property where the stared heating oil
is used.
"Operational life" refers to the period beginning vfren
installation of the tank system has commenced until the time the tank
system is properly closed under Subpart G.
"Operator" means any person in control 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 environment.
"Owner" means: (a) in the case of an UST system in use en
Noventoer 8, 1984, or hrought 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
Novenber 8, 1984, but no longer in use on that date, any per ami who
owned such UST immediately before the rKsmnfinnafifin of its use.
"Person" means an individual, trust, firm, joint stock ocnpany,
federal agency, corporation, state, municipality, commission,
political subdivision of a state, or any interstate body. "Person"
also includes a oonsartiun, a joint venture, a commercial entity, and
the united States Government.
"Petroleun UST system" means an underground storage tank system
that contains petroleun or a mixture of petrol earn with de minimis
quantities of other regulated substances. Such systems include those
containing motor fuels, jet fuels, distillate fuel oils, residual fuel
oils, lubricants, petroleun solvents, and used oils.
"Pipe" or "Piping" means a hollow cylinder or tubular conduit
that is constructed of non-earthen materials.
"Pipeline facilities (including gathering lines)" are new and
existing pipe rights-of-way and any associated equipment, facilities,
or buildings.
"Regulated substance" means
(a) any substance defined in section 101(14) of the Comprehensive
Brivircranental Response, Compensation and Liability Act (ORIA) of
1980 (but not including any substance regulated as a hazardous waste
under subtitle C), and
(b) petroleun, including 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 incii absolute). The term
"regulated substance" includes but is not limited to petroleun and
petxoleun-based substances comprised of a ocmplex blend of
Page 9
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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, petrol eun
solvents, and used oils.
"Release" means any spilling, leaking, emitting, discharging,
escaping, leaching ar disposing from an UEJT into ground Mater, surface
water or subsurface soils.
"Release detection" moans determining Wiether a release of a
regulated substance has occurred fran the UST system into the
environment ar into the interstitial space between the UST system and
its secondary barrier or secondary containment around it.
"Repair" means to restore a tank or UST system oaqpanent that has
caused a release of product from the UST system.
"Residential tank" is a tank located an property used primarily
far dwelling purposes.
"SARA" means the Superfind Amendnents and Reauthorization Act of
1986.
"Septic tank" is a Mater-tight covered receptacle designed to
receive or process, through liquid separation or biological digestion,
the sewage discharged from a building sewer. Ihe effluent from such
receptacle is distributed far disposal through the soil and settled
solids and scan from the tank are punped out periodically and hauled
to a treatment facility.
"Storm-water ar wastewater collection system" means piping,
puqps, oanduits, and any other equipment necessary to collect and
transport the flow of surface water run-off resulting from
precipitation, ar domestic, commercial, ar industrial Mastewater to
and from retention areas or any areas where treatment is designated to
occur. The collection of stann water and wastewater does not include
treatment except where incidental to oonveyanoe.
"Surface impoundment" is a natural topographic depression,
man-made excavation, or diked area farmed primarily of earthen
materials (although it may be l-inprf with man-made materials) that is
not an injection well.
,%Eank" is a stationary device designed to contain an accunulation
of regulated substances and constructed of non-earthen materials
(e.g., concrete, steel, plastic) that provide structural support.
"Underground area" means an underground room, such as a basement,
cellar, shaft ar vault, providing enough space far physical inspection
of the exterior of the tank situated an ar above the surface of the
floor.
Page 10
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"Underground release" means any belowground release.
"Underground storage tank" or "UST" means any one or combination
of tanks (including \mderground pipes oannected thereto) that is used
to aontain an aocmulation of regulated substances, and the volume of
viiich (including the volune of underground pipes oannected thereto) is
10 percent ar mare 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 staring motor fuel far noncommercial purposes;
(b) Tfeiik used far staring heating oil far consumptive use an the
premises vtere stared;
(c) Septic tank;
(d) Pipeline facility (including gathering lines) 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 seq.), or
(3) ftiicii is an intrastate pipeline facility regulated
under state laws oonqparable to the provisions of the
law referred to in paragraph (d)(1) 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 ar gas production and gathering operations; ar
(i) Storage tank situated in an underground area (such as a
basement, cellar, minewarking, drift, shaft, ar tunnel) if the
storage tank is situated upon ar above the surface of the floor.
The term "underground storage tank" ar "UST" does not include any
pipes oannected to any tank which is described in paragraphs (a)
through (i) of this definition.
"Upgrade" means the addition or retrofit of some systems suc±i 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.
"UST system" ar "T&nk system" means an isiderground storage tank,
connected underground piping, underground ancillary equipment, and
containment system, if any.
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"Wastewater treatment tank" means a tank that is designed to
receive and treat an influent wastewater through physical, chemical,
or biological methods.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
Page 12
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SECTION .0300 UST SYSTEMS: DESIGN, CONSTRUCTION,
INSTALLATION, AND NOTIFICATTCN
.0301 PERFORMANCE STANDARDS FOR NEW UST SYSTEMS
(a) The "Performance standards for new UST systems" contained in 40
CFR 280.20 (Subpart B) have been adopted by reference in accordance
with G.S. 150B-14(c) except that:
(1) 40 CFR 280.20(a)(2) (iv) has been changed to read "Cathodic
protection systems are operated and maintained in accordance
with 15A NCAC 2N.0402, or as approved by the Director;"
(2) 40 CFR 280.20(b)(2)(iv) has been changed to read "Cathodic
protection systems are operated and maintained in accordance
with 15A NCAC 2N.0402, or as approved by the Director;"
(3) 40 CPU 280.20(a)(4) is not adopted by reference; and
(4) 40 CER 280.20(b)(3) is not adopted by reference.
(b) No UST system shall be installed within 100 feet of a well
serving a public water system, as defined in 15A NCAC 18C .0102, or
within 50 feet of any other well supplying water for human
consumption.
(c) An UST system, existing on the date of adoption of this
Subchapter and located within the area described in Paragraph (b) of
this Rule, may be replaced with a new tank meeting the performance
standards of 40 CFR 280.20 and the secondary containment provisions of
40 CFR 280.42 (b)(1) through (4). The replacement UST system may not
be located nearer to the water supply source than the UST system being
replaced.
(d) Except as prohibited in (b) of this Rule an UST system must
meet the requirements for secondary containment described at 40 CFR
280.42(b)(1) through (4) if installed:
(1) within 500 feet of a well serving a public water
supply or within 100 feet of any other well supplying water
for human consumption; or
(2) within 500 feet of any surface water classified as High
Quality Water (HQW), Outstanding Resource Waters (ORW),
WS-I, WS-II, or SA;
(3) in a location determined by the Director to be unsuitable
for conventional installation based on an evaluation of the
site by Division staff.
ArinpHrm bv Reference
§ 280.20 Performance standards far new UST systems.
In order to prevent releases due to structural failure,
corrosion, or gpH n g and overfills far as long as the UST system is
used to stare regulated substances, all owners and operators of new
UST systems nust meet the following requirements.
(a) Tcinks. Eadi tank must be properly designed and constructed,
and any portion underground that routinely contains product nust be
protected from corrosion, in accordance with a code of practice
Page 13
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developed by a nationally recognized association cor independent
testing laboratory as specified below:
(1) Hie tank is constructed of fiberglass-reinforced plastic; or
[Note: The following industry ondps may be used to aaqply with
paragraph (a)(1) of this section: Underwriters laboratories Standard
1316, "Standard for Glass- Fiber-Reinforced Plastic Underground
Storage Tfenks far Petroleum Products"; Underwriter's Laboratories of
Canada CAN4-S615-f©3, "Standard for Reinforced Plastic Underground
Tfenks for Petroleum Products"; or American Society of Testing and
Materials Standard D4021-86, "Standard Specification for
G1 ass-Fiber-Reinfaroed Polyester Underground Petroleum Storage
Tanks.*']
(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;
(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
accordance with § 280.31 or according to guidelines established by the
implementing agency; or
[Note: The following codes and standards may be used to ocnply
with paragraph (a)(2) of this section:
(A) Steel Tferik Institute "Specification for STI-P3 System of
External Corrosion Protection of Ikiderground Steel Storage larks";
(B) Underwriters laboratories Standard 1746, "Corrosion
Protection Systems for Underground Storage Tanks";
(C) Underwriters laboratories of Canada CAN4-S603-M85, "Standard
far Steel Underground Tanks for Flammable and Combustible Liquids,"
and Otf*4-G03.1-+B5, "Standard for Galvanic Corrosion Protection
Systems for Underground T&nks far Flammable and Ccnbustible Liquids,"
and CMJ4-S631-KJ4, "isolating Bushings far Steel Underground Tanks
Protected with Coatings and Galvanic Systems"; or
(D) Ifational Association of Corrosion Engineers Standard
RP-02-85, "Control of External Corrosion en Metallic Buried, Partially
Buried, or Submerged Liquid Storage Systems,11 and Underwriters
laboratories Standard 58, "Standard for Steel Underground Tanks for
Flammable and Combustible Liquids."]
Page 14
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(3) The tank is constructed of a steel-fiberglass-reinf aroed-
plastic oamposite; or
[Note: The following industry codes may be used to ocnply with
paragraph (a)(3) of this section: Underwriters laboratories Standard
1746, "Corrosion Protection Systems far Underground Storage T&nks," or
the Association far Gnqposite Tanks ACT-100, ''Specification far the
Fabrication of FRP Clad Underground Storage l^nks."]
(4) The tank is constructed of mpfral without additional
corrosion protection measures provided that:
(i) The tank is installed at a site that is determined by a
oarrosicn 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
liance with the requirements of paragraph (a)(4)(i) of this
section far the remaining life of the tank; or
(5) The tank construction and oarrosion protect ion are
determined by the implementing agency to be designed to prevent the
release or threatened release of any stared regulated substance in a
manner that is no less protective of hunan health and the environment
than paragraphs (a)(1) through (4) of this section.
(b) Piping. The piping that routinely contains regulated
substances and is in contact with the grturl most be properly
designed, constructed, and protected from oarrosion 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
[Note: The following codes and standards may be used to conply
with paragraph (b)(1) of this section:
(A) underwriters laboratories Subject 971, "UL Tlisted Non-Metal
Pipe";
(B) Underwriters laboratories Standard 567, "Pipe Connectors far
Flammable and Qantaustible and If Gas";
(C) Underwriters laboratories of Guide UIjC—107, "Glass
Fiber Reinforced Plastic Pipe and Fittings far Flaamable Liquids"; and
(D) Underwriters laboratories of Canada Standard CRN 4-S633-MJ1,
"Flexible Underground Hose Connectors."]
(2) The piping is constructed of steel and cathodically
protected in the following manner:
Page 15
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(i) The piping is ooated with a suifrahle dielectric material;
(ii) Field-installed cathodic protection systems are designed by
a aarrosion expert;
(iii) Impressed current systems arte designed to allow
determination of current operating status as required in § 280.31(c);
and
(iv) Cathcdic protection systems are operated and maintained in
aooardanoe with § 280.31 or guidelines established by the implementing
agency; or
[Note: The following codes and standards may be used to aaqply
with paragraph (b)(2) of this section:
(A) National Fire Protection Association Standard 30, "Flanmable
and Combustible Liquids Code";
(B) American Petroleum Institute Publication 1615, "Installation
of Underground Petroieun Storage Systems";
(C) American Petroieun Institute Publication 1632, "Cathodic
Protection of Underground Petroieun Storage Tferiks and Piping Systems";
and
(D) National Association of Goczosion Engineers Standard
KP-01-69, "Cbntrol of External Corrosion on Submerged Metallic Piping
Systems."]
(3) The piping is oonstructed of metal without additional
corrosion protection measures provided that:
(i) The piping is installed at a site that is determined by a
corrosion expert to not be corrosive enough to cause it to have a
release due to aarrosion during its operating life; and
(ii) Oners and operators maintain records that demonstrate
ocnyliance with the requirements of paragraph (b) (3) (i) of this
section for the remaining life of the piping; or
[Note: Ibtional Fire Protection Association Standard 30,
"Flammable and Ccnixistible T.-ifg rifle Code1'; and National Association of
Corrosion Engineers Standard KP-01-69, "Control of External CDrrosion
on Submerged Metallic Piping Systems," may be used to ooqpiy with
paragraph (b)(3) of this section.]
(4) The piping construction and aarrosion protection are
determined by the implementing agency to be designed to prevent the
release or threatened release of any stored regulated substance in a
manner that is no less protective of hunan health and the environment
than the requirements in paragraphs (b)(1) through (3) of this
section.
Page 16
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(c) Spill and overfill prevention equipment.
(1) Except as provided in paragraph (c)(2) of this section, to
prevent spilling and overfilling associated with product transfer to
the UST system, owners and operators lust use the following spill and
overfill prevention equipment:
(1) Spill prevention equipment that will prevent release of
product to the environment tfren the transfer hose is detached from the
fill pipe (far exaaple, a spill catchment basin); and
(ii) Overfill prevention equipment that will:
(A) Automatically shit off flow into the tank vAien the tank is
no more than 95 percent full; or
(B) Alert the transfer operator vhen 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 alann one minute before overfilling, or
automatically shut off flow into the tank so that none of the fittings
located on top of the tank are exposed to product due to overfilling.
(2) Owners and operators are not required to use the spill and
overfill prevention equipment specified in paragraph (c)(1) of this
section if:
(i) Alternative equipment is used that is determined by the
implementing agency to be no less protective of hunan health and the
environment than the equipment specified in paragraph (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 raist be properly
installed in accordance with a code of practice developed by a
nationally remgnizffd association or independent testing laboratory
and in accordance with the manufacturer's instructions.
[Note: Tfenk and piping system installation practices and
procedures described in the following nodes may be used to comply with
the requirements of paragraph (d) of this section:
(i) American Petrol em Institute Publication 1615, "Installation
of Underground Petroleim Storage System"; or
(ii) Petroleun Equipment Institute Publication RP100,
"Recommended Practices for Installation of Underground Liquid Storage
Systems"; or
Page 17
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(iii) American National Standards Institute Standard B31.3,
"Petroleun Refinery Piping," and American National Standards Institute
Standard B31.4 "Liquid Petroleum Transpartaticn Piping System."]
(e) Certification cf installation. All omexs and operators
nust 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 fay providing a
certification of compliance an the UST notification farm in accordance
with § 280.22.
(1) Hie installer has boon oertified by tie tank and piping
manufacturers; or
(2) The installer has been oertified or licensed by the
inplementing agency; or
(3) Ihe installation has been inspected and oertified by a
registered professional engineer with education and experience in UST
system install at inn; or
(4) Ihe installation has been inspected and approved by the
implementing agency; or
(5) All work listed in the mamfacturer's installation
checklists has been completed; or
(6) nhe owner and operator have ocrplied with another method far
ensuring compliance with paragraph (d) of this section that is
determined by the implementing agency to be no less protective of
hunan health and the environment.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0302 UPGRADING CF EXISTING UST SYSTEMS
(a) Ihe provisions for "Upgrading of existing UST systems"
contained in 40 CFR 280.21 (Subpart B) have been adopted by reference
in accordance with G.S. 150B-14(c) except that existing UST systems
located within areas defined at Rule .0301(b) and (d) of this Section
shall be upgraded in accordance with the provisions of 40 CFR
280.21(b) through (d) and shall be provided secondary containment as
described at 40 CFR 280.42(b)(1) through (4). An UST system so
upgraded may not be relocated nearer to a source of drinking water
supply than its location prior to being upgraded.
(b) Owners must submit to the Division, on forms provided by the
Division, and within 30 days following completion, a description of
the upgrading of any UST system conducted in accordance with the
requirements of 40 CFR 280.21.
(c) UST systems upgraded in accordance with 40 CFR 280.21 prior to
the adoption of this Subchapter are in compliance with these Rules.
Page 18
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Adoption bv Reference
§ 280.21 Upgrading of existing LETT systems.
(a) Alternatives allowed. Not later than December 22, 1998, all
existing LET systems mast aaqply with one af the following
requirements:
(1) New UST system performance standards under § 280.20;
(2) The upgrading requirements in sections (b) through (d) of
this section; or
(3) Closure requirements under Subpart G of this Part, including
applicable requirements far corrective action under Subpart F.
(b) Tank upgrading requirements. Steel tanks oust be upgraded
to meet one of the following requirements in accordance with a code of
practice developed by a nationally recognized association or
independent testing laboratory:
(1) Interior lining. A tank may be upgraded by internal lining
if:
(1) The lining is installed in accordance 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 fomd 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 corrosion holes prior to
installing the cathodic protection system; or
(ii) The tank has been installed for less than 10 years and is
monitored monthly far releases in accordance with § 280.43(d) through
(h); or
(iii) The tank has been installed far less than 10 years and is
assessed far corrosion holes by conducting two (2) tightness tests
that meet the requirements of § 280.43(c). The first tightness test
oust be conducted prior to installing the cathodic protection system.
The second tightness test mist be oonducted between three (3) and six
(6) months following the first operation of the cathodic protection
system; or
Page 19
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(iv) Hie tank is assessed far aarrasian holes by a method that
is determined by the implementing agency to prevent releases in a
manner that is no less protective of hunan health and the environment
than paragraphs (b)(2)(i) through (iii) of this section.
(3) Internal lining onrininert with cathodic protection. A tank
may be upgraded by both internal lining and cathodic protection if:
(i) Hie lining is installed in accordance with the requirements
of § 280.33; and
(ii) Hie cathodic protection system meets the requirements of §
280.20(a)(2)(ii), (iii), and (iv).
[Note: *Ihe following codes and standards may be used to ocnply
with this section:
(A) American Petroleun Institute Publication 1631, "Recommended
Practice far the Interior Lining of Existing Steel Underground Storage
'tanks";
(B) National Leak Prevention Association Standard 631, "Spill
Prevention, Mininun 10 Year Life Extension of Existing Steel
Underground Tfenks by Lining Without the Addition of Cathodic
Protection";
(C) National Association of Corrosion Engineers Standard
RP-02-85, "Central of External Corrosion cn Metallic Buried, Partially
Buried, or Submerged Liquid Storage Systems"; and
(D) American Petroleun Institute Publication 1632, "Cathodic
Protection of Underground Petroleun Storage T^nks and Piping
Systems."]
(c) Piping upgrading requirements. Metal piping that routinely
contains regulated mHgt-annpg and is in contact with the ground oust
be cathodically protected in accordance with a code of practice
developed by a nationally mnogni7^id association or independent
testing laboratory and oust meet the requirements of §
280.20(b)(2)(ii), (iii), aid (iv).
[Note: Hie codes and standards in the note following §
280.20(b)(2) may be used to ccnply with this requirement.]
(d) Spin and overfill prevention equipment. Tb prevent
spilling and overfilling associated with product transfer to the UST
system, all existing UST systems mist coqply with new UST system spill
and overfill prevention equipment requirements specified in §
280.20(c).
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
Page 20
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.0303 NOTIFICATION REQUIREMENTS
Ihe "Notification requirements" contained in 40 CFR 280.22
(Subpart B) have been adopted by reference in accordance with
G.S. 150B-14(c) except that:
(1) Any owner of an UST system must submit to the Division, on
forms provided by the Division, a notice of intent to conduct any of
the following activities:
(a) Installation of a new UST system;
(b) Installation of a leak detection device installed outside of
the outermost wall of the tank and piping, such as vapor
detection or groundwater monitoring devices;
(c) Permanent closure or change-in-service of an UST system.
(2) Notification as required in Paragraph (1) of this Rule shall be
given at least 30 days before the activity is begun except as
authorized by the Director.
(3) CXmers and operators of UST systems that were in the ground on
or after May 8, 1986, were required to notify the Division in
accordance with the Hazardous and Solid Waste Amendments of 1984,
Public Law 98-616, on a form published by the Environmental Protection
Agency on November 8, 1985 (50-FR 46602) unless notice was given
pursuant to Section 103(c) of CTR1A. Owners or operators who have
not complied with the notification requirements may ocnplete the
appropriate portions of the form, provided by the Division, and submit
the form to the Division.
(4) 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 owners notification obligations under
Paragraphs (1) and (2) of this Rule.
(5) Any reference in 40 CFR 280 to the notification form in
Appendix I shall refer to the North Carolina notification form
approved by the Division and EPA.
Adoption bv Reference
§ 280.22 Notification requirements.
(a) Any owner who brings an underground storage tank system into
use after ltey 8, 1986, oust within 30 days of bringing such tank into
use, submit, in the farm prescribed in Appendix I af this Fart, a
notice of existence of such tank system to the state or local agency
cor department designated in Appendix U of this Part to receive sudi
notice.
[Note: Owners and operators of UBT systems that were in the
ground cn or after Kay 8, 1986, unless taken out of operation an ar
befare January 1, 1974, were required to notify the designated state
or local agency in acxnnfanoe with the Hazardous and Solid Vfaste
Amendments of 1984, Public law 98-616, cn a form published by EPA on
November 8, 1985 ( 50 FR 46602) ixiless notice was given pursuant to
section 103(c) of (BOA. Owners and operators have not complied
with the notification requirements may use pcirLiens I through VI of
the notification farm contained in Appendix I of this Part. ]
Page 21
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(b) In states vtere state law, regulations, or procedures
require owners to use farms that differ from those set forth in
Appendix I of this Part to fulfill the requirements of this section,
the state farms may be submitted in lieu of the farms set forth in
Appendix I of this Part. If a state requires that its form be used in
lieu of the farm presented in this regulation, such farm oust meet the
requirements of Section 9002.
(c) Owners required to subnit notices \mder paragraph (a) of
this section sust provide notices to the appropriate aynrHre or
departments identified in Appendix H of this Part far each tank they
own. Owners may provide notice far several tanks using one
notification farm, but owners who an tanks located at mare than one
place of operation must file a separate notification farm far 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 farm (ar appropriate state farm) far each tank far
which notice oust be given. Notices far tanks installed after
December 22, 1988 oust also provide all of the information in Section
VII of the prescribed frrnn (ar appropriate state farm) far each tank
far which notice mast be given.
(e) All awiexs and operators of new UST systems oust certify in
the notification farm compliance with the following 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 oust ensure that
the installer certifies in the notification farm that the methods used
to install the tanks and piping complies with the requirements in §
280.20(d).
(g) Begiming October 24, 1988, any person sells a tank
intended to be used as an mdergrowd storage tank nust notify the
purchaser of such tank of the owner's notification obligations under
paragraph (a) of this section. Hie farm provided in Appendix III of
this part may be used to ocnply with this requirement.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
Page 22
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SECTION .0400 GENERAL OPERATING REQUIREMENTS
.0401 SPILL AND OVERFILL CCNIHQL
Ihe provisions for "Spill and overfill control" contained in 40 CFR
280.30 (Subpart C) have been adopted by reference in accordance with
G.S. 150B-14(c).
Adoption by Reference
§ 280.30 Spill and overfill control.
(a) Owners and operators must ensure that releases to
spi 1 ling or overfilling do not occur. The owner and operator oust
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.
[Note: Hie transfer procedures described in National Fire
Protection Association Publication 385 may be used to comply with
paragraph (a) of this section. Further guidance on spin and overfill
prevention appears in American Fetroleun Institute Publication 1621,
"Recommended Practice far Bulk Liquid Stock Control at Retail
Outlets," and National Fire Protection Association Standard 30,
"Flammable and Goribustible Liquids Code."]
(b) Ihe owner and operator must report, investigate, and clean
up any spills and overfills in accordance with § 280.53.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0402 OPERATION AND MAINTENANCE OF OORROSICN PROTECTION
The provisions for "Operation and maintenance of corrosion
protection" contained in 40 CFR 280.31 (Subpart C) have been adopted
by reference in accordance with G.S. 150B-14(c).
Adoption by Reference
§ 280.31 Operation and maintenance of corrosion protection.
All owners and operators of steel LET systems with corrosion
protection must comply with the following requirements to ensure that
releases due to corrosion are prevented far as long as the UST system
is used to store regulated substances:
(a) All corrosion protection systems nust be operated and
maintained to continuously provide corrosion protection to the metal
Page 23
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components of that partial of the tank and piping that routinely
contain regulated substances and are in contact with the ground.
(b) All UEJT systems equipped with cathcdic protection systems
oust be Inspected far proper operation by a cathcdic
protection tester in accordance with the following requirements:
(1) Frequency. All cathcdic protection systems oust be tested
within 6 months of installation and at least every 3 years thereafter
or according to another reasonable time frame established by the
implementing agency; and
(2) Inspection criteria. He criteria that are used to
determine that cathcdic protection is adequate as required by this
section must be in accordance with a code of practice developed by a
nationally recognized association.
[Note: National Association of Cbrrosion Kxpneers Standard
RP-02-85, "Oontrol of External Corrosion on Metallic Buried, Partially
Buried, or Submerged Liquid Storage Systems," may be used to comply
with paragraph (b)(2) of this section.]
(c) UST systems with iiqpressed current cathodic protection
systems oust also be inspected every 60 days to ensure the equipment
is running properly.
(d) Far UST systems using cathodic protection, records of the
operation of the cathodic protection nust be maintained (in accordance
with § 280.34) to demonstrate crmpliance with the performance
standards in this section. These records nust provide the following:
(1) Hie results of the last three inspections required in
paragraph (c) of this section; and
(2) The results of testing from the last two inspections
required in paragraph (b) of this section.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0403 OCMPATIBILnY
The provisions for "Ccnpatibility" contained in 40 CFR 280.32
(Subpart C) have been adopted by reference in accordance with G.S.
150B-14(c).
Adoption bv Reference
§ 280.32 Cbopatibility.
Owners and operators must use an UST system made of or lined with
ai«; that are ocnpatible with the substance stored in the UST
system.
Page 24
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[Note: Owners and operators staring alachal blends may use the
following codes to oanply with the requirements of this section:
(A) American Petroleun Institute Publication 1626, "Staring and
Handling Ethanol and Gasoline-Ethanol at Distribution Terminals
and Service Stations"; and
(B) American Petroleun Institute Publication 1627, "Storage and
Handling of Gasoline-Hethanol /Cosolvent Blends at Distribution
Terminals and Service Stations.")
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0404 REPAIRS ALLOWED
The "Repairs Allowed" provisions contained in 40 CFR 280.33
(Subpart C) have been adopted by reference in accordance with G.S.
150B-14(c).
Adoption by Reference
§ 280.33 Repairs allowed.
Owners and operators of U5T systems mist ensure that repairs will
prevent releases due to structural failure or corrosion as long as the
CJST syston is used to store regulated substances, ihe repairs nust
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.
[Note: The following codes and standards may be used to comply
with paragraph (a) of this section: National Fire Protection
Association Standard 30, "Flanmahle and Oombustihle Liquids Code";
American Petroleun Institute Publication 2200, "Repairing Crude Oil,
Liquified Petroleum Gas, and Product Pipelines"; American Petroleun
Institute Publication 1631, 'tecommended Practice far the Interior
Lining of Existing Steel Underground Storage "Banks"; and National Leak
Prevention Association Standard 631, "Spill Prevention, Mininun 10
Year Life Extension of Existing Steel Underground Tanks by Lining
Without the Addition of Cathodic Protection."]
(b) Repairs to fitwnjiagc-rpinfmml plastic tanks may 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.
Page 25
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(c) Metal pipe sections and fittings that have released product
as a result of corrosion err other rfamay* oust be replaced. Fiberglass
pipes and fittings nay be repaired in accordance with the
manufacturer's specifications.
(d) Repaired tanks and piping oust 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
paragraphs (d)(1) through (3), of this section:
(1) The repaired tank is internally inspected in accordance with
a oode of practice developed by a nationally recognized association or
an independent testing laboratory; or
(2) Hie repaired poarticn of the UST system is monitored monthly
for releases in accordance with a method specified in § 280.43(d)
through (h); or
(3) Another test method is used that is determined by the
inplementing agency to be no less protective of hunan 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 oust be tested in
accordance with § 280.31(b) and (c) to ensure that it is operating
properly.
(f) UST system owiers and operators oust maintain xmxuQs of
each repair far the remaining operating life of the UST system that
demonstrate ocnpliance with the requirements of this section.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B—282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0405 REPORTING AND RECORDKEEPING
(a) The "Reporting and recordkeeping" procedures contained in 40
CFR 280.34 (Subpart C) have been adopted by reference in accordance
with G.S. 150B-14(c).
(b) Owners and operators must also submit to the Division, on forms
provided by the Division and within 30 days following completion,
results of the site investigation conducted:
(1) at permanent closure; or
(2) to insure compliance with the requirements far installation
of vapor monitoring and groundwater monitoring devices, as
specified in 40 CFR 280.43(e)(1) through (e)(4) and
280.43(f)(1) through (f)(5), respectively.
(c) Owners must submit to the Division, on forms provided by the
Division, and within 30 days following completion:
(1) A description of the upgrading of any UST system conducted
in accordance with the requirements of 40 CFR 280.21;
(2) Certification of the proper operation of a corrosion
Page 26
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protection system upon completion of testing and at a
frequency and in a manner specified in 40 CFR 280.31; and
(3) Certification of compliance with the requirements for leak
detection specified in 40 CFR 280.40, 40 CFR 280.41, 40 CFR
280.42, 40 Cn* 280.43 and 40 CTR 280.44. The certification
most specify the leak detection method and date of
compliance for each UST.
Adoption bv Reference
§ 280.34 Reporting and Recordkeeping.
Owners and operators of DBT systems nust cooperate fully with
inspections, monitoring and testing conducted by the implementing
agency, as well as requests far document submission, testing, and
monitoring by the amer or operator pursuant to section 9005 of
Subtitle I of the Resource Conservation and Recovery Act, as amended.
(a) Reporting. Owiexs and operators nust submit the following
information to the implementing agency:
(1) Notification far all UST systems (§ 280.22), viiich includes
certification of installation far new UST systems (§ 280.20(e));
(2) Reports of all releases including suspected releases (§
280.50), spills and overfills (§ 280.53), and confirmed releases (§
280.61);
(3) Corrective actions planned or taken including initial
abatement measures (§ 280.62), initial site rfwracterizatien (§
280.63), free product removal (§ 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). [not adopted]
(b) Recordkeeping. Owiers and operators oust maintain the
following information:
(1) A oarrosion expert's analysis of site corrosion potential if
corrosion protection equipment is not used (§ 280.20(a)(4); §
280.20(b)(3)).
(2) Dora mentation of operation of oarrosion protection equipment
(§ 280.31);
(3) Documentation of UST system repairs (§ 280.33(f));
(4) Recent mry>lianoe with release detection requirements (§
280.45); arrf
Page 27
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(5) Results of the site investigation conducted at permanent
closure (§ 280.74).
(c) Availability and Maintenance of Records. Owners and
operators oust keep the records required either:
(1) At the UST site and immediately available far inspection by
the implementing agency; or
(2) At a readily available alternative site and be provided for
inspection to the implementing agency tpon request.
(3) In the case of permanent closure remolds required tnder §
280.74, owners and operators are also provided with the additional
alternative of mailing closure records too the implementing agency if
they cannot be kept at the site or an alternative site as indicated
above.
(Note: The recordkeeping and reporting requirements in this
section have been approved by the Office of Management and Budget and
have been assigned CMB Control No. 2050-0068.)
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
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SECITCN .0500 RELEASE DETECTION
.0501 (2NEKAL REQUIREMENTS FOR ALL UST SYSTEMS
The "General requirements for all UST systems" provisions contained
in 40 CFR 280.40 (Subpart D) have been adopted by reference in
accordance with G.S. 150B-14(c).
Adoption by Reference
§ 280.40 General requirements for all UST systems.
(a) Ctoiers and operators of new and existing UST systems nust
provide a method, or ocnbination of methods, of release detection
that:
(1) Can detect a release fron 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 diecks for operability or running condition;
and
(3) Meets the performance requirements in section 280.43 or
280.44, with any performance claims and their mamet. of determination
described in writing by the equipment manufacturer or installer. In
addition, methods used after the date show in the following table
corresponding with the specified method except for methods permanently
installed prior to that date, nust 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 (Fd) of 0.95 and a probability of false alarm (Pfa) of 0.05.
Method
Section
Date after tfiicii Fd/Pfa
nust be demonstrated
Manual Tank
Gauging
280.43(b)
Deoenter 22, 1990
Tfcnk Tight-
ness Testing
280.43(c)
Deoenter 22, 1990
Automatic
Tank Gauging
280.43(d)
Oocenter 22, 1990
Automatic
Line Leak
Detectors
280.44(a)
Septenter 22, 1991
Line Tight-
ness Testing
280.44(b)
Deoenter 22, 1990
Page 29
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(b) ftien a release detection method operated in accordance with
the performance standards in § 280.43 and § 280.44 indicates a release
may have occurred, owners and operators nust notify the implementing
agency in aooardarme with Subpart E.
(c) Owners and operators of all UST systems must comply with the
release detection requirements of this Subpart by norraijer 22, of the
year listed in the following table:
SCHEDULE FOR PHASE-IN CF REX£ASE EEHOTCN
Year Release Detection Is Required
Year ins^n*^ (By December 22 of the TnrHcated)
1989 1990 1991 1992 1993
Before 1965 or RD P
date unknown.
1965-69.. P/HD
1970-74.. P RD
1975-79.. P RD
1980-88.. P RD
New tanks (after December 22) immediately upon installation.
P = Mist begin release detection for all pressurized piping as
defined in 280.41(b)(1).
RD = Must begin release detection far tanks and suction piping in
accordance with 280.41(a), 280.41(b)(2), a«3 280.42.
(d) Any existing UST system that cannot apply a method of release
detection that aaqplies with the requirements of this Subpart nust
ocnplete the closure procedures in Subpart G by the date on whidi
release detection is required far that UST system under paragraph (c)
of this section.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0502 REQUIREMENTS FOR PETROLEUM UST SYSTEMS
The "Requirements for petroleun UST systems" provisions contained in
40 CFR 280.41 (Subpart D) have been adopted by reference in accordance
with G.S. 150B-14(c) except that UST systems designated in Rule
.0301(d) must meet the requirements for secondary containment
described at 40 CFR 280.42(b)(1) through (4).
Adoption by Reference
§ 280.41 Requirements far petroleun UST systems.
Owners and operators of petroleum UST systems mist provide
release detection far tanks and piping as follows:
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(a) Tfcnks. Tanks oust be monitored at least every 30 days fear
releases using cne of the methods listed in § 280.43 (d)-(h) except
that:
(1) DE7T systems that meet the performance standards in § 280.20
or § 280.21, and the monthly inventory central 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 \xitil 10 years after the tank is installed or upgraded under
§ 280.21(b), viiichever is latex*;
(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 anual tank tightness testing
(conducted in accordance with § 280.43(c)) until Deo^iiier 22, 1998,
when the tank nust be upgraded under § 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 substances nust be monitored for releases in a maimer that
meets cne of the following requirements:
(1) Pressurized piping. Underground piping that conveys
regulated substances under pressure must:
(1) Be equipped with an automatic line leak detector conducted
in accordance with § 280.44(a); and
(ii) Rave 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 wider suction nust 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 required for suction piping that
is designed and constructed to meet the following standards:
(i) Hie below-grade piping operates at less than atmospheric
pressure;
(ii) Hie below-grade piping is sloped so that the contents of
the pipe will drain bade into the storage tank if the suction is
released;
(iii) Only one check valve is included in each suction line;
(iv) The chedc valve is located directly below and as close as
practical to the suction pnp; and
Page 31
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(v) A method is provided that allows ormplianoe with paragraphs
(b)(2)(ii)-(iv) of this section to be readily determined.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150&-14(c);
Eff. January 1, 1991
.0503 REQUIREMENTS FOR HAZARDOUS SUBSTANCE UST SYSTEMS
The "Requirements far hazardous substance UST systems" provisions
contained in 40 CFR 280.42 (Subpart D) have been adopted by reference
in accordance with G.S. 150B-14(c) accept that the requirements for
secondary containment described at 40 GFR 280.42(b)(1) though (4)
shall also apply to petroleum UST systems described at Rule .0301 (d).
Adoption by Reference
§ 280.42 Requirements far hazardous .substanne UST systems.
Owners and operators of hazardous substance EST systems nust
provide release detection that meets the following requirements:
(a) Release detection at existing UST systems oust meet the
requirements far petroleun UST systems in § 280.41. By December 22,
1998, all existing hazardous substance LET systems nust meet the
release detection requirements far new systems in paragraph (b) of
this section.
(b) Release detection at new hazardous substance UST systems
nust meet the following requirements:
(1) Secondary containment systems nust be designed, constructed
and installed to:
(1) Contain regulated substances released fcan the tank system
until they are detected and removed;
(ii) Prevent the release of regulated substances to the
envirorment at any time during the operational life of the UST system;
and
(iii) Be ciiedced far evidence of a release at least every 30
days.
[Note: The provisions of 40 CSR 265.193, Containment and
Detection of Releases, may be used to comply with these requirements.]
(2) Double-walled tanks nust 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.
Page 32
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(3) External liners (including vaults) oust 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 or ground-water
intrusion with the ability to contain or detect a release of regulated
substances; and
(iii) Surround the tank ccnpletely (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 paragraph (b)(1) of
this section (e.g., trench liners, jacketing of pipe).
In addition, underground piping that cxxrveys regulated suhBtanras
under pressure must be equipped with an automatic line leak detector
in accordance with § 280.44(a).
(5) Other methods of release detection may be used if owners and
operators:
(i) Demonstrate to the inplementing agency that an alternate
method can detect a release of the stared si±>stance as effectively as
any of the methods allowed in §§ 280.43(b)-(h) can detect a release of
petroleun;
(ii) Provide information to the implementing agency on effective
corrective action tecimologies, health rides, and chemical and
physical properties of the stored substance, and the characteristics
of the UST site; and,
(iii) Obtain approval from the implementing agency to use the
alternate release detection method before the installation and
operation of the new UST systan.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2) (h); 150B-14(c);
Eff. January 1, 1991
.0504 MEIHXS OF RELEASE DETECTION FOR TANKS
(a) The "Methods of release detection for tanks" contained in 40
CFR 280.43 (Subpart D) have been adopted by reference in accordance
with G.S. 150B-14(c) except that:
(1) 40 CFR 280.43(d)(2) is amended to read: "Inventory control,
or another test of equivalent performance approved by the
Department, conducted in accordance with the requirements of
40 CFR 280.43(a);
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(2) 40 CFR 280.43(f)(7) is amended to read: "Within and
immediately below the UST system excavation zone, the site
is assessed to ensure compliance with the requirements of 40
CFR 280.43(f)(1) through (f)(5), as modified by this Rule,
and to establish the number and positioning of monitoring
wells or devices that will detect releases from any portion
of the tank that routinely contains product"; and
(3) 40 Cm 280.43(f)(3), (f)(4), and (f)(5) are not adopted by
reference.
(b) Wells used far monitoring or testing for liquids on the
groundwater shall be:
(1) Far new installations, located within and at the end of the
excavation having the lowest elevation and along piping at
intervals not exceeding 50 feet; or
(2) For existing installations, located in the excavation zone
or as near to it as technically feasible and installed in a
borehole at least four inches larger than the diameter of
the casing;
(3) A minimum of two inches in diameter. The ramber of wells
installed must be sufficient to detect releases from the UST
system;
(4) Equipped with a screen that extends from two feet below
land surface to a depth of 20 feet below land surface or two
feet below the seasonal low water level, whichever is
shallower. The screen shall be designed and installed to
prevent the migration of natural soils or filter pack into
the well while allowing the entry of regulated substances
into the well under both high and low groundwater level
conditions;
(5) Surrounded with a clean sand or gravel to the top of the
screen, plugged, and grouted the remaining distance to
finished grade with cement grout;
(6) Constructed of a permanent casing and screen material that
is inert to the stared substance and is com us ion resistant;
(7) Developed upon completion of installation until the water is
clear and relatively sediment free;
(8) Protected with a water tight cover and lockable cap;
(9) Labeled as a liquid monitor well; and
(10) Equipped with a continuously operating liquid leak detection
device; or
(A) For tanks storing petroleum products, tested at least
once every 14 days with a device or hydrocarbon-sensitive
paste capable of detecting the liquid stored; or
(B) For tanks storing hazardous substances, sampled and
tested at least once every 14 days for the presence of
the stored substance.
(c) Wells used for monitoring or testing for liquids on the
groundwater at new installations, and constructed in accordance with
Paragraph (b) of this Rule, shall be deemed to be permitted in
accordance with the requirements of 15A NCAC 2C .0105.
Page 34
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(d) Any person completing or abandoning any well, used for testing
of vapors or monitoring for liquids on the groundwater, shall submit
the record required by Rale .0114(b) of the Well Construction
Standards (15A NCAC 2C .0100).
(e) The site assessments required by 40 CFR 280.43(e)(6) and 40 CFR
280.43(f)(7) shall be conducted by or under the supervision of a
person qualified to assess site conditions.
(f) Wells used for monitoring far the presence of vapors in the soil
gas of the excavation zone shall be equipped with a continuously
operating vapor detection device or tested at least once every 14 days
for the presence of the substance stored.
MnpHnn bv Reference
§ 280.43 Methods of release detection far tanks.
Each method of release detection far tanks used to meet the
requirements of § 280.41 oust be conducted in accordance with the
following:
(~) Inventory control. Product inventory control (or another
test of equivalent performance) nust be conducted monthly to detect a
release of at least 1.0 percent of flow-through plus 130 gallons en a
monthly basis in the following manner:
(1) Inventory volxme measurements far regulated substance
inputs, withdrawals, and the amount still remaining in the tank are
recorded each operating day;
(2) Hie equipment used is capable of measuring the level of
product over the full range af the tank's height to the nearest
one-eighth of an inc±i;
(3) Hie regulated substance inputs are reconciled with delivery
receipts by measurement af the tank inventory valine 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 far meter calibration or an accuracy of 6 cubic inches far
every 5 gallons of product withdrawn; and
(~) Die measurement af any water level in the bottom of the tank
is made to the nearest one-eighth af an inch at least once a month.
[Note: Practices described in the American Petroleum Institute
Publication 1621, "Recommended Practice far Bulk Liquid Stock Central
at Retail Outlets," may be used, tAiere applicable, as guirtarmp in
meeting the requirements of this paragraph.]
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(b) ltarual tank gauging. Manual tank gauging must meet the
following requirements:
(1) T&nk Liquid level measurements are taken at the beginning
and ending of a period of at least 36 hours during Wiich no liquid is
added to or removed £rcm the tank;
(2) Level measurements are based en an average of two
consecutive stick readings at both the beginning and ending of the
period;
(3) Hie 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 incii;
(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:
(5) Oily tanks of 550 gallons or less nominal capacity may use
this as the sole method of release detection. Tfenks cf 551 to 2,000
gallons may use the method in place of maroal inventory control in §
280.43(a). Iferiks of greater than 2,000 gallcns nominal capacity may
not use this method to meet the requirements of this subpart.
(c) T^nk tightness testing. Tfenk tightness testing (or another
test of equivalent performance) oust be capable of detecting a 0.1
gallon per hour leak rate from any portion of the tank that routinely
contains product while accounting far the effects of thermal expansion
or contraction of the product, vapor pockets, tank deformation,
evaporation or condensation, and the location of the water table.
(d) Automatic tank gauging. Equipment far automatic tank
gauging that tests far the lass of product and oondbcts inventory
control oust 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
Hominal
Tank Capacity
Weekly Standard Monthly Standard
(one test) (average of four tests)
550 gallons or less
551-1,000 gallons
1,001-2,000 gallons
10 gallons
13 gallons
26 gallons
5 gallons
7 gallons
13 gallons
§ 280.43(a).
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(e) Vapor mcnitaring. Testing ar nrxii taring for vapors within
the soil gas of the excavation zone oust meet the following
requirements:
(1) The maf-gi-ials used as harirmi are sufficiently parous
(e.g., gravel, sand, crushed rock) to readily allow diffusion of
vapors from releases into the excavation area;
(2) Hie stared regulated substance, ar a tracer minium*3 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) Hie measurement of vapors by the monitoring device is not
rendered inoperative by the ground water, rainfall, ar soil moisture
ar other knonn interferences so that a release could go undetected far
mare than 30 days;
(4) Hie level of background contamination in the excavation zone
will not 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 background of the
regulated substance stared in the tank system, a ooqponent ar
acnpanents of that substance, ar a tracer compound planed in the tank
system;
(6) In the U7T excavation zone, the site is assessed to ensure
compliance with the requirements in paragraphs (e)(1)-(4) of this
section 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; and
(7) Manitaring wells are clearly marked and secured to avoid
unauthorized access and tampering.
(f) Gromd-water monitoring. Testing ar monitoring far liquids
on the ground water oust meet the following requirements:
(1) Hie regulated substance stared is •inwHorHKi** 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 monitoring wells ar devices is not less than 0.01
cm/sec (e.g., the soil should consist of gravels, coarse to medium
sands, coarse silts ar other permeable materials);
(3) Hie slotted portion of the monitoring well casing nust 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;
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(4) Monitoring wells shall be sealed fran the ground surface to
the top of the filter pack;
(5) Monitoring wells cr devices intercept the excavation zone or
are as close to it as is technically feasible;
(6) Hie continuous monitoring devices or ncmnai methods used can
detect the presence of at least one-eigpith of an indi 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 oaqplianoe with the requirements in
paragraphs (f) (1)—(5) of this section and to establish the nnter 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 to avoid
unauthorized 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, constructed and
installed to detect a leak from any portion of the tank that routinely
contains product and also meets one of the following requirements:
(1) For double-Mailed UST systems, the saqpling or testing
method can detect a release through the inner wall in any portion of
the tank that routinely contains product;
[Note: Hie provisions outlined in the Steel Ifenk Institute's
"Standard far Dual ffall Underground Storage Ifenks" may be used as
guidance far aspects of the design and ounsLruction of underground
steel double-walled tanks.]
(2) Rar UST systems with a secondary 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 artificially constructed material, that is sufficiently
thick and impermeable (at least 10 am/sec for the regulated
suhstanoe stared) to direct a release to the monitoring point and
permit its detection;
(ii) The barrier is cnqpatihle with the regulated substance
stared so that a release from the UST system will not cause a
deterioration of the barrier allowing a release to pass through
undetected;
(iii) For cathodically protected tanks, the seoondary barrier
must be installed so that it does not interfere with the proper
operation of the cathodic protection system;
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(iv) The ground Mater, soil moisture, ar rainfall will not
render the testing or sampling method used inoperative so that a
release could go undetected far 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 finrrl plain, unless
the barrier and monitoring designs are far use under suc±i conditions;
and,
(vi) Monitoring wells are clearly marked and secured to avoid
unauthorized access and tampering.
(3) Ftnr 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 ranpfiHhle with the substance stared.
(h) Other methods. Any other type of release detection method,
ar combination of methods, can be used if:
(1) It can detect a 0.2 gallon per hour leak rate ar a release
of 150 gallons within a month with a probability of detection of 0.95
and a probability of alarm of 0.05; ar
(2) The implementing agency 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 paragraphs
(c)-(h) af this section. In aoqparing methods, the implementing
agency diall consider the size af release that the method can detect
and the frequency and reliability with whic±i it can be detected. If
the method is approved, the omer and operator mist comply with any
conditions imposed by the inplementing agency on its use to ensure the
protection of hunan health and the environment.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0505 MEIHDDS OF RELEASE EEIBCTICN FOR PIPING
The "Methods of release detection for piping" provisions contained
in 40 CFR 280.44 (Subpart D) have been adopted by reference in
accordance with G.S. 150B-14(c).
Adoption bv Reference
§ 280.44 Methods of release detection far piping.
Each method of release detection far piping used to meet the
requirements af § 280.41 must be conducted in accordance with the
following:
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(a) Automatic line leak detectors. Methods Wiich alert the
operator to the presence of a leak by restricting car shutting off the
flow of regulated substances through piping or triggering an
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 oust be ocnducted in
accordance with the manufacturer's requirements.
(b) lane tightness testing. A periodic test of piping may be
oanducted 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)-(h) may be used if they are designed to detect a release
from any portion of the underground piping that routinely contains
regulated substances.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0506 RELEASE DETECTION RECORDKEEPING
The provisions for "Release detection recordkeeping" contained in 40
CFR 280.45 (Subpart D) have been adopted by reference in accordance
with G.S. 150B-14(c).
Mnof-ino bv Reference
§ 280.45 Release detection recordkeeping.
All UST system owners and operators oust maintain records in
accordance with § 280.34 demonstrating ognplianoe with all applicable
requirements of this Subpart. Ihese records oust include the
following:
(a) All written performance claims pertaining to any release
detection system used, and the manner in viiich these claims have been
justified or tested by the equipment manufacturer or installer, oust
be maintained far 5 years, or far another reasonable period of time
determined by the incrementing agency, from the date of installation;
(b) The results of any sampling, testing, or monitoring nust be
maintained far at least 1 year, or far another reasonable period of
time determined by the implementing agency, except that the results of
tank tightness testing conducted in accordance with § 280.43(c) mist
be retained until the next test is conducted; and
(c) Written documentation of all calibration, maintenance, and
repair of release detection equipment permanently located cn-site nust
be maintained far at least one year after the servicing work is
completed, or far another reasonable time period determined by the
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implementing agency. Any schedules of required calibration and
maintenance provided by the release detection equipment manufacturer
oust be retained far 5 years from the date of installation.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2) (h); 150B-14(c);
Eff. January 1, 1991
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SECTION .0600 RELEASE REPORTING, INVESTIGATION, AND
CONFIRMATION
.0601 REPORTING OF SUSPECTED RELEASES
Ihe provisions for "Reporting of suspected releases" contained in 40
CFR 280.50 (Subpart E) have been adopted by reference in accordance
with G.S. 1505-14(0), except that the words, "or another reasonable
time period specified by the iiqplanenting agency," are deleted from
the first sentence.
Adoption bv Reference
§ 280.50 Reporting of suspected releases.
Owners and operators of UST systems iust xqxnL to the
implementing agency within 24 hours, or another reasonable tine period
specified by the implementing agency, and follow the procedures in §
280.52 far any of the following conditions:
(a) Hie discovery by owners and operators or others of released
regulated substances at the GST site or in the surrounding area (suc±i
as the piesaiue of free product or vapors in soils, basements, sewer
and utility lines, and nearby surface water).
(b) ikusual operating conditions observed by o»«ers and
operators (sucii as 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 system equipment is
found to be defective but not leaking, and is immediately repaired or
replaced; and,
(c) Monitoring results from a release detection method required
under § 280.41 and § 280.42 that indicate a release may have occurred
unless:
(1) Ihe monitoring device is found to be defective, and is
immediately repaired, recalibrated or replaced, and additional
monitoring does not confirm the initial result; or
(2) In the case of inventory control, a seocnd month of data
does not confirm the initial result.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150R-14(c);
Eff. January 1, 1991
.0602 INVESTIGATION DUE TO OFF-SITE IMPACTS
Ihe "Investigation due to off-site impacts" provisions contained in
40 CFR 280.51 (Subpart E) have been adopted by reference in accordance
with G.S. 150B-14(c).
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Adoption bv Reference
§ 280.51 Investigation due to off-site imparts.
Vfaen required by the iimplementing agency, owners and operators of
LET systems oust follow the procedures in § 280.52 to determine if the
UST system is the source of off-site infracts. These impacts include
the discovery of regulated substances (sucii as the presence of free
product or vapors in soils, basements, sewer and utility lines, and
nearby surface and drinking waters) that has been observed by the
iimplementing agency or brought to its attention by another party.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0603 RELEASE INVESTIGATION AND OCNFIRMATTCN STEPS
The "Release investigation and confirmation steps" provisions
contained in 40 CFR 280.52 (Subpart E) have been adopted by reference
in accordance with G.S. 150B-14(c), except that the first sentence has
been rewritten to read: "Unless corrective action is initiated in
accordance with Subpart F, owners must immediately investigate and
confirm all suspected releases of regulated substances requiring
reporting under 40 CFR 280.50 within seven days, unless approval for
an extension of time has been granted by the Division before the seven
days have expired, and only upon a showing of good cause by the owner
or operator of the UST system. In conducting such investigations,
owners and operators must use either the following steps or another
procedure approved by the Division:"
Adoption bv Reference
§ 280.52 Release investigation and confirmation steps.
Unless corrective action is initiated in accordance with Subpart
F, owners and operators nust immediately investigate and confirm all
suspected releases of regulated substances requiring 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. Otners and operators oust conduct tests
(according to the requirements far tightness testing in § 280.43(c)
and § 280.44(b)) that determine tAiether a leak exists in that portion
of the tank that routinely contains 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 aooordannft with Subpart F if
the test results for the system, tank, or delivery piping indicate
that a leak exists.
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(2) Further investigation is not required if the test results
far the system, tank, and delivery piping do not indicate that a leak
exists and if environmental r»«ii aninptio" is not the far
suspecting a release.
(3) Oners and operators must aondbct a site diedc as described
in paragraph (b) of this section if the test results for the system,
tank, and delivery piping do not indicate that a leak exists but
environmental contamination is the basis far suspecting a release.
(b) Site diedc. Ombts and operators must measure far the
presence of a release irfiere contamination is most likely to be present
at the UST site. In selecting sample types, sample locations, and
measurement methods, otners and operators oust consider the nature of
the stored substance, the type of initial alarm or rs«M»» far
suspicion, the type of backfill, the depth of grorod water, and other
factors appropriate far identifying the presence and souroe of the
release.
(1) If the test results far the excavation zone ar the UST site
indicate that a release has occurred, owiers and operators oust begin
corrective action in accordance with Subpart F;
(2) If the test results far the excavation zone ar the UST site
do not indicate that a release has occurred, further investigation is
not required.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0604 REPORTING AND CLEANUP OF SPILLS AND OVERFILLS
Ihe "Reporting and cleanup of spills and overfills" provisions
contained in 40 CFR 280.53 (Subpart E) have been adopted by reference
in accordance with G.S. 150B-14(c), except that:
(1) In 40 CFR 280.53(a) and (b), the words, "or another reasonable
time period specified by the implementing agency," are not adopted by
reference;
(2) In 40 CFR 280.53(a)(1) and (b), the words, "or another
reasonable amount specified by the implementing agency" are not
adopted by reference; and
(3) Ihe time periods within which reports required by the provisions
of 40 CFR 280.53 must be submitted to the Division nay be extended
upon approval of requests made to the Division by the owner or
operator, before the expiration of the time period and upon a shewing
of good cause.
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Adoption bv Reference
§ 280.53 Reporting and cleanup of spills and overfills.
(a) Owners and operators of UST systems oust contain and
immediately clean up a spill or overfill and report to the
implementing agency within 24 hours, or another reasonable t-imp period
specified by the implementing agency, and begin omiecLive action in
accordance with Subpart F in the following cases:
(1) Spill or overfill of petroleum that results in a release to
the environment that exceeds 25 gallons or another reasonable amount
specified by the implementing agency, or that causes a sheen an 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 OE3YZLA (40 CER 302).
(b) Owners and operators of UST systems oust contain and
immediately clean up a spill or overfill of petroleum that is less
than 25 gallons or another reasonable amount specified by the
implementing agency, and a spill or overfill of a hazardous substance
that is less than the input table quantity. If cleanup caiwioL be
aooonplishffd within 24 hours, or another reasonable time period
established by the implementing agency, OMiers and operators must
immediately notify the implementing agency.
[Note: A release of a hazardous substance equal to or in excess
of its reportable quantity nust 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 1980 (40 GFR 302.6) and to appropriate state and
local authorities uider Title IU of the Superfund Amendments and
Reauthorization Act of 1986 ( 40 CFR 355.40).]
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
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SECTION .0700 RELEASE RESPONSE AND CORRECTIVE ACTION FOR UST
SYSTEMS CONTAINING PEIRQLEUM OR HAZARDOUS
SUBSTANCES
.0701 GENERAL
(a) lhe "General" provisions contained in 40 CFR 280.60 (Subpart F)
have been adopted by reference in accordance with G.S. 150B-14(c).
(b) Any corrective action undertaken in accordance with this
Section must meet the requirements and standards specified in
15A NCAC 2L .0106.
Adoption by Reference
§ 280.60 General.
Owners and operators of petroleun cr hazardous substance UST
systems mist, in response to a omfinnad release from the CST system,
oonply with the requirements of this subpart except far UESFs excluded
under § 280.10(b) and UST systems subject to RCRA Subtitle C
corrective action requirements under section 3004(u) of the Resource
Conservation and Recovery Act, as amended.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0702 INITIAL RESPONSE
Hie provisions for "Initial response" contained in 40 CFR 280.61
(Subpart F) have been adopted by reference in accordance with G.S.
150B-14(c), except that the words, "or another reasonable time period
specified by the implementing agency," in the first sentence are not
adopted by reference.
ArinpHnn by Reference
§ 280.61 Initial response.
Upon confirmation of a release in accordance with § 280.52 or
after a release from the UST system is identified in any other manner,
owners and operators nust peifmrn the fallowing 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 implementing 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, explosion, and vapor hazards.
Page 46
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History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0703 INITIAL ABATEMENT MEASURES AND SITE CHECK
The provisions far "Initial abatement measures and site check"
contained in 40 CFR 280.62 (Subpart F) have been adopted by reference
in accordance with G.S. 150B-14(c), except that:
(1) 40 CFR 280.62(a)(6) is rewritten to read, "Investigate to
determine the possible presence of free product, and begin free
product removal within 14 days in accordance with 40 CFR 280.64,
unless approval for an extension of time has been granted by the
Division upon a showing of good cause, prior to the expiration of the
time period; and
(2) In 40 CFR 280.62(b) the wards, "or within another reasonable
period of time determined by the implementing agency," are not adopted
by reference;
Adoption by Reference
§ 280.62 Initial abatement measures and site check.
(a) Unless directed to do otherwise by the implementing agency,
owners and operators nust 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 abovegrowd releases or exposed
belowground releases and prevent further migration of the released
substance into surrounding «rril« 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 excavation zone and entered into s»i.fra.ir race structures (such
as sewers or basements); '
(4) 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 nust comply with applicable state and local requirements;
(5) Measure far the presence of a release tAiere contamination is
most likely to be present at the UST site, unless the presence and
som.ee of the release have been confirmed in accordance with the site
check required by § 280.52(b) or the closure site assessment of §
280.72(a). In selecting sample types, saiqplp locations, and
measurement methods, the owner and operator nust consider the nature
of the stared substance, the type of backfill, depth to ground water
and other factors as appropriate for identifying the presence and
source of the release; and
Page 47
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(6) Investigate to determine the pnngiM" maaaioe of free
product, and begin free prodbct renewal as soon as practicable and in
accordance with § 280.64.
(b) Within 20 days after release confirmation, or within another
reasonable period of time determined by the implementing agency,
owners and operators must submit a report to the incrementing agency
summarizing the initial abatement steps taken under paragraph (a) of
this section and any resulting information or data.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0704 INITIAL SITE CHARACIERIZATICN
The provisions for "Initial site characterization" contained in 40
CFR 280.63 (Subpart F) have been adopted by reference in accordance
with G.S. 150B-14(c), except that in 40 CFR 280.63(b) the words, "or
another reasonable period of time determined by the implementing
agency," are replaced by the weeds, "unless prior approval has been
granted by the Division upon a showing of good cause, before the 45
days have expired.
Adoption bv Reference
§ 280.63 Initial site characterization.
(a) Unless directed to do otherwise by the implementing agency,
owners and operators Bust assemble information about the site and the
nature of the release, including information gained tiiile confirming
the release or completing the initial abatement measures in § 280.60
and § 280.61. Uiis information must include, but is not necessarily
1 imi ted 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: surnxnding populations, water
quality, use and approximate locations of wells potentially 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 investigations required under
§ 280.62(a)(6), to be used by owners and operators to determine
vAether free product oust be recovered under § 280.64.
(b) Within 45 days of release confirmation or another reasonable
period of time determined by the implementing agency, earners and
operators oust submit the information collected in ocnpliance with
Page 48
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paragraph (a) of this section to the implementing agency in a manner
that demonstrates its applicability and technical adequacy, or in a
format and according to the required by the implementing
agency.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0705 FREE PRODUCT REMOVAL
The provisions for "Free product removal" contained in 40 CFR 280.64
(Subpart F) have been adopted by reference in accordance with G.S.
150B-14(c).
Adoption bv Reference
§ 280.64 Free product removal.
At sites tiiere investigations under § 280.62(a)(6) indicate the
presence of free product, owners and operators mist remove free
product to the maximm extent practicable as determined by the
implementing agency tAiile continuing, as necessary, any actions
initiated 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 mist:
(a) Conduct free product removal in a manner that minimizes the
spread of contamination into previously unoontaminated zones by using
recovery and Hi «spn«*i techniques appropriate to the hydrogeologic
conditions at the site, and that properly treats, discharges or
flisprees of recovery byproducts in compliance with applicable local,
state and federal regulations;
(b) Use abatement of free product migration as a minimm
objective far the design of the free product removal system;
(c) Handle any flammahle products in a safe and competent manner
to prevent fixes or explosions; and
(d) Unless directed to do otherwise by the inplementing agency,
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 far implementing the
free product removal measures;
(2) Hie estimated quantity, type, and thickness of free product
observed or measured in wells, boreholes, and excavations;
(3) Hie type of free product recovery system used;
Page 49
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(4) ftoether any discharge will take place on-site or off-site
during the recovery operation and ttere this discharge will be
located;
(5) The type of treatment applied to, and the effluent quality
expected from, any disdiarge;
(6) Die steps that have been or are being taken to obtain
necessary permits far any discharge; and
(7) The disposition of the recovered free product.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0706 INVESTIGATIONS FOR SOIL AND GROUND WMER CLEANUP
The provisions for "Investigations far soil and ground-water
cleanup" contained in 40 CFR 280.65 (Subpart F) have been adopted by
reference in accordance with G.S. 150B-I4(c).
Adoption bv Reference
§ 280.65 Investigations far soil and ground-water cleanup.
(a) In order to determine the full extent and location of
contaminated by the release and the presence and concentrations of
dissolved product contamination in the ground water, owners and
operators must conduct 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 recovery in carpi ianne with
§ 280.64;
(3) There is evidence that contaminated soils nay be in contact
with ground water (e.g., as fbwd during conduct of the initial
response measures or investigations required inSer § 280.60 through §
280.64); art
(4) The implementing agency requests an investigation, based an
the potential effects of contaminated soil ar ground water an nearby
surface water and ground-water resources.
(b) Owners and operators nust submit the information collected
under paragraph (a) of this section as socn as practicable ar in
accordance with a schedule established by the inplementing agency.
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History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0707 CORRECTIVE ACTICN PLAN
Ihe provisions for a "Corrective action plan" contained in 40 CFR
280.66 (Subpart F) have been incorporated by reference including any
subsequent amendments and editions with the exception of the following
Paragraph. This material is available for inspection at the
Department of Environment, Health, and Natural Resources, Division of
Environmental Management, Groundwater Section, 512 North Salisbury
Street, Ralei^i, North Carolina. Copies of 40 CFR Parts 260 to 299
may be obtained from the Superintendent of Documents, Government
Printing Office, Washington, D.C., 20402 at a cost of thirty-one
dollars ($31.00).
40 CFR 280.66(a) has been rewritten to read: "At any point after
reviewing the information submitted in compliance with 40 CFR 280.61
through 40 CFR 280.63, the Division 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 prepare a plan in
accordance with the requirements specified in 15A NCAC 2L .0106, and
submit it according to a schedule and format established by the
Division. Owners and operators are responsible for submitting a plan
that provides for adequate protection of human health and the
environment as determined by the Division, and must modify their plan
as necessary to meet this standard".
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h);
Eff. January 1, 1991
Amended Eff. September 1, 1992
Adoption by Reference
§ 280.66 Corrective action plan.
(a) At any point after reviewing the information submitted in
oonpliance with § 280.61 through § 280.63, the implementing agency may
require owners and operators to submit additional information or to
develop and submit a corrective action plan far responding to
contaminated «yvii«s and ground water. If a plan is required, owners
and operators oust submit the plan according to a schedule and format
established by the implementing agency. Alternatively, owners and
operators may, after fulfilling the requirements of § 280.61 through §
280.63, ciioose to submit a corrective action plan for responding to
contaminated «*•>•» 1 and gpcowd water. In either case, owners and
operators are '*^» ¦wrfKi^ far submitting a plan that provides for
aHpgiafp protection of hunan health and the envixorment as determined
by the implementing agency, and oust modify their plan as necessary to
meet this standard.
(b) The implementing agency will approve 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 implementing agency should consider the
following factors as appropriate:
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(1) Die physical and chemical characteristics of the regulated
substance, inclining its toxicity, persistence, and potential far
migration;
(2) The hydrogeologic characteristics of the facility and the
surrounding area;
(3) The proximity,, quality, and current and future uses of
nearby surface water and ground water;
(4) Uie potential effects of residual contamination an 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 implementing agency, carers and operators oust i try lenient the
plan, including modifications to the plan made by the implementing
agency. Uiey nust monitor, evaluate, and report the results of
implementing the plan in aooordanoe with a schedule and in a format
established by the inplenenting agency.
(d) Owners and operators may, in the interest of minimizing
environmental contamination and promoting more effective 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) Ctoqply with any conditions imposed by the implementing
agency, including halting cleanup or mitigating adverse consequences
from cleanup activities; and
(3) Incorporate these self-initiated cleanup measures in the
corrective action plan that is submitted to the implementing agency
for approval.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0708 PUBLIC PARTICIPATION
The provisions for "Public participation" contained in 40 CFR 280.67
(Subpart F) have been adopted by reference in accordance with G.S.
150B-14(c).
Page 52
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Adoption bv Reference
§ 280.67 Public participation.
(a) For each confirmed release that requires a corrective action
plan, the implementing agency mist provide notice to the public by
means designed to zeacii those ¦pniiers of the public directly affected
by the release and the planned corrective action. Ihis notice may
include, but is not 1 imited to, public notice in local newspapers,
block advertisements, pdhlic service announcements, publication in a
state register, letters to individual households, or personal contacts
by field staff.
(b) The implementing agency mist ensure that site release
information and decisions acnoerning the corrective action plan are
made available to the public far inspection upon request.
(c) Before approving a corrective action plan, the implementing
agency may hold a public meeting to consider ocmnents an the proposed
corrective action plan if there is sufficient public interest, ar far
any other reason.
(d) The implementing agency mist give public notice that
acnplies with paragraph (a) of this section if implementation of an
approved corrective action plan does not arfiieve the established
cleanup levels in the plan and termination of that plan is under
consideration by the inplementing agency.
History Note: Statutory Authority G.S. 143-215.3(a) (15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
Page 53
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SBCT1CN .0800 CUT-CF-SERVICE UST SYSTEMS AND CLOSURE
.0801 TEMPORARY CLOSURE
The provisions for "Temporary closure" contained in 40 CFR 280.70
(Subpart G) have been adopted by reference in accordance with G.S.
150B-14(c).
Adoption bv Reference
§ 280.70 Tenparary closure.
(a) Vtien an UST system is temporarily closed, owners and
operators oust continue operation and maintenance of oorrosion
protection in accordance with § 280.31, and any release detection in
accordance with Subpart D. Si±parts E and F must be complied with if
a release is suspected or confirmed. However, release detection is
not required as long as the UST system is enpty. 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 rapacity of the OST system,
remain in the system.
(b) When an UST system is temporarily closed for 3 months ar
mare, owners and operators oust also aaoply with the following
requirements:
(1) Leave vent lines open and functioning; and
(2) Cap and secure all other lines, puips, mamays, and
ancillary equipment.
(c) Vfrien an UST system is temporarily closed for more than 12
months, oners and operators must permanently close the UST system if
it does not meet either peifuinnr>oe standards in § 280.20 for new UHT
systems or the upgrading requirements in § 280.21, except that the
spill and overfill equipment requirements do not have to be met.
Owners and operators oust permanently close the substandard UST
systems at the end of this 12-month period in accordance with
§ 280.71-280.74, unless the implementing agency provides an extension
of the 12-month tenparary closure period. Owiers and operators oust
ocnplete a site assessment in accordance with § 280.72 before such an
extension can be applied for.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0802 PERMANENT CLOSURE AND CHANGES-IN-SERVICE
The provisions for "Permanent closure and changes-in-service"
contained in 40 CFR 280.71 (Subpart G) have been adopted by reference
Page 54
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in accordance with G.S. 150B-14(c) except that an UST system
containing de minimis concentrations of a regulated substance must
meet the closure requirements of this Rule within 12 months of the
effective date of this Subchapter.
Adoption by Reference
§ 280.71 Permanent closure and changes-in-service.
(a) At least 30 days before beginning either permanent closure
cor a change-in-service under paragraphs (b) and (c) of this section,
or within another reasonable time period determined by the
implementing agency, owners and operators oust notify the implementing
agency of their intent to permanently close or make the
change-in-service, wless sut3i action is in response to corrective
action. The required assessment of the excavation zone under § 280.72
mist be performed after notifying the implementing agency but before
completion of the permanent closure or a cfiange-in-service.
(b) lb permanently close a tank, oners and operators nust empty
and clean it by removing all liquids and aonmilatfid sludges. All
tanks taken out of service permanently nust also be either removed
fran the ground or filled with an inert solid material.
(c) Gbntiiuad use cf an CET system to stare a non-regulated
substance is considered a change-in-service. Before a
rfiange-in-service, OMiers and operators nust empty and clean the tank
by removing all liquid and arramilated sludge and conduct a site
assessment in aooardanoe with § 280.72.
[Note: The following cleaning and closure procedures may be used
to comply with this section:
(A) American Petroleun Institute Recommended Practice 1604,
"Removal and Disposal of Used Underground Petroleum Storage Tfenks";
(B) American Petroleun Institute Publication 2015, "Cleaning
Petroleun Storage T^nks";
(C) American Petroleum Institute Recommended Practice 1631,
"Interior Lining of Underground Storage Tanks," may be used as
guidance far compliance with this section; and
(D) Hie National Institute far QocupaHnrvil Safety and Health
"Criteria far a Recommended Standard Nboddng in Confined Space" may
be used as guidance far conducting safe closure procedures at same
hazardous substance tanks.]
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
Page 55
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.0803 ASSESSING THE SITE AT CLOSURE CR CHANGE-IN-SEEVICE
The provisions far "Assessing the site at closure or
change-in-service'' contained in 40 CFR 280.72 (Subpart G) have been
adopted by reference in accordance with G.S. 150B-14(c), except that:
(1) references to methods and requirements have been expanded to
include all applicable references and methods listed in 15A
NCAC 2N .0504;
(2) site assessments shall be conducted by a person qualified to
assess site conditions; and
(3) the number and location of samples, and method of their
collections shall be determined in accordance with procedures
established by the Department.
Arinpfr-inn bv Reference
§ 280.72 Assessing the site at closure or change-in-service.
(a) Before permanent closure or a change-in-service is
ccnpleted, owners and operators oust measure far the presence of a
release vfrexe contamination is most likely to be nuaail at the UST
site. In selecting sanple types, sanyle locations, and measurement
methods, otmers and operators must consider the method of closure, the
nature of the stared substance, the type of backfill, the depth to
ground water, and other factors appropriate far identifying the
presence of a release. The requirements of this section are satisfied
if one of the external release detection methods allowed in
§ 280.43(e) and (f) is operating in accordance with the requirements
in § 280.43 at the time of closure, and indicates no release has
occurred.
(b) If contaminated soils, contaminated ground water, or free
product as a liquid or vapor is H-igrrw»npH under paragraph (a) of this
section, or by any other manner, owners and operators nust begin
corrective action in accordance with Subpart F.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
.0804 APPLICABILITY TO PREVIOUSLY CLOSED UST SYSTEMS
The "Applicability to previously closed UST systems" provisions
contained in 40 CFR 280.73 (Subpart G) have been adopted by reference
in accordance with G.S. 150B-14(c).
ArinpHnri bv Reference
§ 280.73 Applicability to previously closed UST systems.
Page 56
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ftien directed by the implementing agency, the oner and operator
of an UST system permanently closed before December 22, 1988, must
assess the excavation zone and close the UST system in accordance with
this Subpart if releases from the UST may, in the judgment of the
implementing agency, pose a current cr potential threat to hunan
health and the environment.
History Note: Statutory Authority G.S. 143-215.3(a)(15);
143B-282(2)(h); 150&-14(c);
Eff. January 1, 1991
.0805 CLOSURE RECORDS
The "Closure records" provisions contained in 40 CFR 280.74 (Subpart
G) have been adopted by reference in accordance with G.S. 150B-14(c).
MonHnn by Reference
§ 280.74 Closure records.
Owners and operators oust maintain records in accordance with
§ 280.34 that axe capable of demonstrating ocnplianoe with closure
requirements under this Subpart. The results of the excavation zone
assessment required in § 280.72 nust be maintained far at least 3
years after crny>letian of permanent closure or change-in-service in
one of the following ways:
(a) By the owners and operators «£» took the UST system out of
service;
(b) By the current omers and operators of the UST system site;
or
(c) By nailing these xecmds to the implementing agency if they
cannot be maintained at the closed facility.
History Note: Statutory Authority G.S. 143-215.3(a) (15);
143B-282(2)(h); 150B-14(c);
Eff. January 1, 1991
Page 57
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North Carolina Administration Code
15A
Department of Environment, Health, and Natural Resources
Division of Environmental Management
IS
Subchapter 20
Sections .0100
thru .0500
• v 1
¦
Current Through August 3.1992
Environmental Management Commission
Raleigh, North Carolina
Financial
Responsibility
Requirements For
Owners And
Operators Of
Underground
Storage Tanks
-------
TABLE OF CONTENTS
SUBCHAPTER 20
Financial Responsibility Requirements
For Owners and Operators of Underground Storage Tanks
Page
SECTION .0100 GENERAL CONSIDERATIONS
.0101 General 1
.0102 Copies of Referenced Federal Regulations 2
.0103 Substituted Sections 3
SECTION .0200 PROGRAM SCOPE
.0201 Applicability 4
40 CFR §280.90
.0202 Compliance Dates 5
40 CFR §280.91
.0203 Definitions 6
40 CFR §280.92
.0204 Amount and Scope of Required Financial Responsibility 9
SECTION .0300 ASSURANCE MECHANISMS
.0301 Allowable Mechanisms and Combinations of Mechanisms 1 1
40 CFR §280.94
.0302 Self Insurance 1 2
40 CFR §280.102 1 7
.0303 Guarantee 1 8
40 CFR §280.96
.0304 Insurance and Risk Retention Group Coverage 2 3
40 CFR 280.97
.0305 Surety Bond 2 8
40 CFR 280.98
.0306 Letter of Credil 3 3
40 CFR 280.99
.0307 Standby Trust Fund 3 6
40 CFR 280.103
.0308 Insurance Pools 44
.0309 Substitution of Financial Assurance Mechanisms 4 5
40 CFR 280.104
.0310 Cancellation or Nonrenewal by a Provider of Assurance 4 6
40 CFR 280.105
SECTION .0400 RESPONSIBILITIES OF OWNERS AND OPERATORS
.0401 Reporting by Owner or Operator 4 7
40 CFR §280.106
.0402 Record Keeping 4 8
40 CFR §280.107
SFCTION .0500 CHANGES IN STATUS
.0501 Drawing on Financial Assurance Mechanisms 5 0
40 CFR §280.108
.0502 Release From the Requirements 5 2
40 CFR §280.109
-------
.0503 Incapacity of Owner or Operalor or Provider of Assuartce ...53
40 CFR §280.110
.0504 Replenishment 5 5
40 CFR §280.111
-------
TITLE 15A
SUBCHAPTER 20
FINANCIAL RESPONSIBILITY REQUIREMENTS
FOR OWNERS AND OPERATORS OF UNDERGROUND STORAGE TANKS
SECTION .0100 GENERAL CONSIDERATIONS
.0101 GENERAL
(a) The purpose of this Subchapter is to establish the
requirements for financial responsibility for owners and
operators of underground storage tanks located in North
Carolina.
(b) The Department of Environment, Health, and Natural
Resources (Department) shall administer the underground
storage tank financial responsibility compliance program
for the State of North Carolina.
(c) Department staff may conduct inspections as
necessary to ensure compliance with this Subchapter.
History Note: Statutory Authority G.S. 143-215.3(a)(1 5);
143-215.94H; 143B-282(2)(h)
Eff. July 1, 1992
page 1
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.0102 COPIES OF REFERENCED FEDERAL REGULATIONS
(a) Copies of applicable Code of Federal Regulations
sections incorporated in this Subchapter are available for
inspection at Department of Environment, Health, and
Natural Resources regional offices. They are:
(1) Asheville Regional Office, Interchange Building,
59 Woodfin Place, Asheville, North Carolina
28802;
(2) Winston-Salem Regional Office, Suite 100, 8025
North Point Boulevard, Winston-Salem, North
Carolina 27106;
(3) Mooresville Regional Office, 919 North Main
Street, Mooresville, North Carolina 28115;
{4) Raleigh Regional Office, 3800 Barrett Drive, Post
Office Box 27687, Raleigh, North Carolina 27611;
(5) Fayetteville Regional Office, Wachovia Building,
Suite 714, Fayetteville, North Carolina 28301;
(6) Washington Regional Office, 1424 Carolina Avenue,
Farish Building, Washington, North Carolina
27889;
(7) Wilmington Regional Office, 127 Cardinal Drive
Extension, Wilmington, North Carolina 28405.
(b) Copies of such regulations can be made at these
regional offices for ten cents ($0.10) per page.
Individual complete copies may be obtained from the U.S.
Environmental Protection Agency, Office of Underground
Storage Tanks, Post Office Box 6044, Rockville, Maryland
20850 for no charge.
History Note: Statutory Authority G.S. 12-3.1(c);
14 3-215.3(a)(15); 143B-282(2)(h)
Eff. July 1, 1992
page 2
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.0103 SUBSTITUTED SECTIONS
(a) References to sections of the Federal Regulations
incorporated by reference will refer to those sections and
any subsequent amendments and editions.
(b) References to 40 CFR 280.93 are to be taken as
references to Rule .0204 of this Subchapter, with Paragraph
correspondence being: 40 CFR 280.93(a) corresponds to 15A
NCAC 20.0204(a) and (b); 40 CFR 280.93(b) corresponds to
15A NCAC 20.0204(c) and (d); 40 CFR 280.93(c) and (d) have
no correspondence; and 40 CFR 280.93(e), (f), (g), and (h)
correspond to 15A NCAC 20.0204(f), (g), (h), and (i),
respectively.
(c) References to 40 CFR 280.95 are to be taken as
references to Rule .0302 of this Subchapter, with Paragraph
correspondence being: 40 CFR 280.95(a), (e), (f), and (g)
correspond to 15A NCAC 20.0302(a), (c), (d), and (e),
respectively; 40 CFR 280.95(b) and (c) correspond to 15A
NCAC 20.0302(b); 40 CFR 280.95(d) corresponds to 15A NCAC
20.0302(f) and (g).
History Note: Statutory Authority G.S. 143-215.94H;
143-215.94T; 150B-21.6
Eff. July 1, 1992
page 3
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SECTION .0200 PROGRAM SCOPE
.0201 APPLICABILITY
(a) The provisions for "Applicability" contained in 40
CFR 280.90 are hereby incorporated by reference including
any subsequent amendments and editions. Locations where
this material is available are specified in Rule .0102 of
this Subchapter.
(b) The Rules contained in this Subchapter apply to all
dual usage tanks as defined in Rule .0203 of this
Subchapter.
History Note: Statutory Authority G.S. 143-215.94A;
143-215.94H; 143-215.94T; 150B-21.6
Eff. July 1, 1992
Incorporation by Reference
280.90 Applicability.
(a) This subpart applies to owners and operators of all
petroleum underground storage tank (UST) systems except as
otherwise provided in this section.
(b) Owners and operators of petroleum UST systems are
subject to these requirements if they are in operation on
or after the date for compliance established in §280.91.
(c) 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
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 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 complies, the date set for
compliance at a particular facility is determined by the
characteristics of the owner as set forth in §280.91.
page 4
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.0202 COMPLIANCE DATES
The provisions for "Compliance Dates" contained in 40 CFR
280.91 are hereby incorporated by reference including any
subsequent amendments and editions. Locations where this
material is available are specified in Rule .0102 of this
Subchapter.
History Note: Statutory Authority G.S. 143-215.94A;
143-215.94H; 150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
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 tangible net
worth of $20 million or more to the U.S. Securities and
Exchange Commission (SEC), Dun and Bradstreet, the Energy
Information Administration, or the Rural Electrification
Administration; January 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 facility; April 26, 1991.
(d) All petroleum UST owners not described in paragraphs
(a), (b), or (c) of this section, excluding all local
government 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 financial
responsibility requirements for underground storage tanks
containing petroleum.
page 5
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.0203 DEFINITIONS
(a) The definitions contained in 15A NCAC 2N.0203 and 40
CFR 280.92 are hereby incorporated by reference including
any subsequent amendments and editions, except for
"Director of the Implementing Agency", "Occurrence", and
"Financial Reporting Year". Locations where this material
is available are specified in Rule .0102 of this
Subchapter.
(b) The following definitions are defined for the
purposes of this Subchapter:
(1) "Annual Operating Fee" is an annual fee required
to be paid by the owner or operator of each
commercial underground storage tank, as defined
in G.S. 143-215.94A, in use on or after January 1
of the year, beginning with 1989.
(2) "Dual Usage Tank" means an underground storage
tank which has had varied usage which would cause
the tank to be considered an underground storage
tank during certain times and an unregulated tank
during other times and for which both the
regulated and unregulated usages were integral to
the operation or existence of the tank.
(3) "Director of the Implementing Agency" means the
Director of the Division of Environmental
Management of the Department of Environment,
Health, and Natural Resources.
(4) "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:
(A) a 10K report submitted to the SEC;
(B) an annual report of tangible net worth
submitted to Dun and Bradstreet;
(C) annual reports submitted to the Energy
Information Administration or the Rural
Electrification Administration; or
(D) a compilation report by a Certified Public
Accountant or Certified Public Accounting
Firm.
(5) "Occurrence" means one or more releases which
result(s) in a single plume of soil, groundwater,
and/or surface water contamination (consisting of
free product and/or associated dissolved
contaminants exceeding standards established
under 15A NCAC 2L.0202 or any other applicable
laws, rules, or regulations) emanating from a
given site.
History Note: Statutory Authority G.S. 143-215.94A;
143-215.94H; 150B-21.6
Eff. July 1, 1992
page 6
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Incorporation bv Reference
280.92 Definition of Terms.
When used in this subpart, the following terms shall have
the meanings given below:
(a) "Accidental release" means any sudden or nonsudden
release of petroleum from an underground storage tank that
results in a need for corrective action and/or compensation
for bodily injury or property damage neither expected nor
intended by the tank owner or operator.
(b) "Bodily injury" shall have the meaning given to this
term by applicable state law; however, this term shall not
include those liabilities which, consistent with standard
insurance
industry 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 Administrator, 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.
(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 10K report submitted to the SEC;
(2) an annual report of tangible net worth submitted
to Dun
and Bradstreet; or
(3) annual reports submitted to the Energy
Information
Administration or the Rural Electrification
Administration.
"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
defending against claims or actions brought,
(1) by EPA or a state to require corrective 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 mechanism.
(g) "Occurrence" means an accident, including continuous
or repeated exposure 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
page 7
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either to limit the meaning 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."
(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" include all
facilities at which petroleum is produced or refined and
all facilities from which petroleum is sold or transferred
to other petroleum marketers or to the public.
(j) "Petroleum marketing firms" are all firms owning
petroleum marketing facilities. Firms owning other types
of facilities with USTs as well as petroleum 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
insurance policies for property damage. However, such
exclusions for property damage shall not include corrective
action associated with releases from tanks which are
covered by the policy.
(1) "Provider of financial assurance" means an entity
that provides financial assurance to an owner or operator
of an underground 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-required mechanism, or a
state.
(m) "Substantial business relationship" means the extent
of a business relationship 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 relationship" if it arises from
and depends on existing economic transactions between the
guarantor and the owner or operator.
(n) "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.
page 8
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.0204 AMOUNT AND SCOPE OF REQUIRED FINANCIAL RESPONSIBILITY
(a) Owners or operators of petroleum underground storage
tanks located in North Carolina must demonstrate financial
responsibility for at least one million dollars
($1,000,000) per occurrence 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.
(b) Compliance with all laws, rules, and regulations
relating to the Commercial Leaking Petroleum Underground
Storage Tank Cleanup Fund shall constitute demonstration of
financial responsibility for that amount specified in
Paragraph (a) of this Rule which is in excess of the sum of
the amounts required to be paid per occurrence by the owner
or operator for cleanup and for third-party claims.
(c) Owners or operators of petroleum underground storage
tanks located in North Carolina 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 one to 100 petroleum
underground storage tanks, one million dollars
($1,000,000); and
(2) For owners or operators of 101 or more petroleum
underground storage tanks, two million dollars
, ($2,000,000).
(d) If all laws, rules, and regulations relating to the
Commercial Leaking Petroleum Underground Storage Tank
Cleanup Fund are complied with, the owner or operator may
meet the financial responsibility requirements of Paragraph
(c) of this Rule by providing an annual aggregate financial
assurance of at least the sum of the amounts specified in
Subparagraphs (d)(1), (2), and (3), of these Rules as
follows, in addition to the assurance provided by the
Commercial Fund: "
(1) The average maximum amount required to be paid by
an owner or operator per occurrence for cleanup
as determined in accordance with Paragraph (e) of
this Rule;
(2) The average maximum amount required to be paid by
an owner or operator per occurrence for third
party claims as determined in accordance with
Paragraph (e) of this Rule; and
(3) Three percent of the multiple of:
(A) the amount in Subparagraph (d)(1) of this
Rule; and
(B) the number of tanks being covered.
(e) An owner or operator providing financial assurance
for more than one underground storage tank where the
various tanks do not all require the same maximum amounts
to be paid per occurrence for cleanup and/or third party
page 9
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claims shall calculate an average maximum amount to be paid
per occurrence as follows:
(1) Determine the maximum amount to be paid per
occurrence for each underground storage tank
being assured;
(2) Sum the values determined in Subparagraph (e)(1)
of this Rule and divide by the number of
underground storage tanks being assured.
(f) Owners or operators shall annually review the amount
of aggregate assurance provided. The amounts of required
financial responsibility and annual aggregate assurance
shall be adjusted at the time of the review to that
required in Paragraphs (a), (b), (c), and (d) of this Rule.
All changes in status, including installations and
closures, shall be reported to the Department, and all fees
due shall be paid in accordance with applicable laws,
rules, and regulations.
(g) If an owner or operator uses separate mechanisms or
separate combinations of mechanisms to demonstrate
financial responsibility for different petroleum
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.
(h) The amounts of assurance required under .this Rule
exclude legal defense costs.
(i) The required per-occurrence and annual aggregate
coverage amounts do not in any way limit the liability of
the owner or operator.
(j) Assurance for petroleum underground storage tanks
located in North Carolina must be provided separately from
that provided for petroleum underground storage tanks not
located in North Carolina.
History Note: Statutory Authority G.S. 143-215.94H;
G.S. 143-215.94T;
Eff. July 1, 1992
page 10
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SECTION .0300 ASSURANCE MECHANISMS
.0301 ALLOWABLE MECHANISMS AND COMBINATIONS OF MECHANISMS
The provisions for "Allowable Mechanisms and Combinations
of Mechanisms" contained in 40 CFR 280.94 are hereby
incorporated by reference including any subsequent
amendments and editions. Locations where this material is
available are specified in Rule .0102 of this Subchapter.
"Guarantee" and "Surety Bond" are acceptable mechanisms in
State of North Carolina.
History Note: Statutory Authority: G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation by Reference
280.94 Allowable Mechanisms and Combinations 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 underground storage tanks.
(b) An owner or operator may use a guarantee or surety
bond to establish financial responsibility only if the
Attomey(s) General of the state(s) in which the
underground storage tanks are located has (have) submitted
a written statement 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 financial test under this
rule, the financial statements of the owner or operator are
not consolidated with the financial statements of the
guarantor.
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.0302 SELF INSURANCE
(a) Assurance of financial responsibility may be
provided by an owner or operator or guarantor as a
self-insurer if the owner or operator has complied with all
of the laws, rules, and regulations relative to the
Commercial Leaking Petroleum Underground Storage Tank
Cleanup Fund and the owner or operator or guarantor either
establishes a Trust Fund as set out in Paragraph (h) of
this Rule or qualifies to be self-insurer by passing the
financial test in Paragraph (b) of this Rule or a financial
test of 40 CFR 280.95.
(b) To qualify as an insurer, an owner, operator, or
guarantor, individually or collectively, must meet the
following criteria based on year-end financial statements
for the latest completed fiscal year.
(1) The owner or operator, or guarantor, individually
or collectively, must have a total tangible net
worth of at least:
(A) the sum of the amounts specified in
Subparagraphs (b)(1)(A)(i) and (ii) of this
Rule as follows, not to exceed three million
dollars ($3,000,000) and not to be less than
one hundred fifty thousand dollars
($150,000):
(i) the multiple of:
(I) the number of tanks being covered
by this mechanism,
(II) the cleanup costs required to be
paid by the owner or operator per
occurrence in accordance with G.S.
143-215.94B(b),
(III)the proportion of the required
financial assurance required
pursuant to Rule .0204 of this
Subchapter being covered by this
mechanism, and
(IV) a constant representing an average
value per tank calculated from
0.05 for each underground storage
tank covered by this mechanism
which is in compliance with any
performance standards required on
December 22, 1998, and 0.18 for
each underground storage tank
covered by this mechanism which is
not in compliance with any
performance standards required on
December 22, 1998.
(ii) two percent of the multiple of:
(I) the number of tanks being covered
by this mechanism,
(II) the amount for third party claims
required to be paid by the owner
or operator per occurrence in
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accordance with G.S.
143-215.94B(b), and
(III)the proportion of the required
financial assurance required
pursuant to Rule .0204 of this
Subchapter being covered by this
mechanism;
(B) Any amount of tangible net worth used to
assure financial responsibility for
petroleum underground storage tanks not
located in North Carolina;
(C) Ten times the sum of the corrective action
cost estimates, the current closure and
post-closure care cost estimates, and amount
of liability coverage for Hazardous Waste
Management Facilities and Hazardous Waste
Storage Facilities for which a financial
test is used to demonstrate financial
responsibility to EPA under 40 CFR Parts
264.101, 264.143, 264.145, 265.143, 265.145,
264.147, and 265.147 or to a state
implementing agency under a state program
authorized by EPA under 40 CFR Part 271; and
(D) Ten times the sum of current plugging and
abandonment cost estimates for injection
wells for which a financial test is used to
demonstrate financial responsibility to EPA
under 40 CFR Part 144.63 or to a state
implementing agency under a state program
authorized by EPA under 40 CFR Part 145.
(2) In addition to any other requirements of this
Section, a Guarantor must have a net worth of at
least two hundred thousand dollars ($200,000)
greater than any tangible net worth used by the
guarantor in Subparagraph (b)(1) of this Rule.
(3) The owner or operator, or guarantor, individually
or collectively, must each have a letter signed
by the chief financial officer, worded as
specified in Paragraph (g) of this Rule, and must
do one of the following:
(A) Obtain annually a compilation report issued
by an independent certified public
accountant or certified public accounting
firm;
(B) File financial statements annually with the
U.S. Securities and Exchange Commission, the
Energy Information Administration, or the
Rural Electrification Administration; or
(C) Report annually the firm's tangible net
worth to Dun and Bradstreet, and Dun and
Bradstreet must have assigned the firm a
financial strength rating of 4A or 5A.
(4) The firm's year-end financial statements must be
independently compiled and cannot include an
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adverse accountant's report or a "going concern"
qualification.
(c) If an owner or operator is acting as a self insurer
in accordance with Paragraph (b) of this Rule and finds
that he or she no longer meets the requirements of the test
in Paragraph (b) of this Rule based on the year-end
financial statements, the owner or operator must obtain
alternative coverage within 150 days of the end of the year
for which financial statements have been prepared.
(d) The Department may require reports of financial
condition at any time from a guarantor and from an owner or
operator who is self insuring. If the Department finds, on
the basis of such reports or other information, that the
owner, operator, or guarantor no longer meets the financial
test requirements of Paragraph (b) of this Rule, the owner
or operator must obtain alternate coverage within 30 days
after notification of such a finding.
(e) 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 financial statements, or within 30 days of
notification by the Department that he or she no longer
meets the requirements of the financial test, the owner or
operator must notify the Department of such failure within
10 days.
(f) To demonstrate that it meets the financial test
under Paragraph (b) of this Rule, the chief financial
officer of each owner or operator or guarantor must sign,
within 120 days of the close of each financial reporting
year, as defined by the 12-month period for which financial
statements used to support the financial test are prepared,
a letter worded exactly as in Paragraph (g) of this Rule,
except that the instructions in brackets are to be replaced
by the relevant information and the brackets deleted.
(g) LETTER FROM CHIEF FINANCIAL OFFICER
I, [insert: name of chief financial officer], the chief
financial officer of [insert: name and address of the owner
or operator, or guarantor] have prepared this letter in
support of the use of [insert: "the financial test of
self-insurance,11 or "guarantee"] to demonstrate financial
responsibility for [insert: "taking corrective action"
and/or "compensating third parties for bodily injury and
property damage"] caused by [insert: "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 following facilities are
assured by this financial test by this [insert: "owner or
operator," or "guarantor"]:
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[List or attach the following information for each
facility: the name and address of the facility where
tanks assured by this financial test are located,
facility number(s) assigned by the Department, and
date(s) of last payment of annual operating fee(s).
If separate mechanisms or combinations of mechanisms,
other than the Commercial Leaking Petroleum
Underground Storage Tank Cleanup Fund are being used
to assure any of the tanks at this facility, list each
tank assured by this financial test.]
[When appropriate, include the following for Hazardous
Waste Management Facilities, Hazardous Waste Storage
Facilities, and Injection Wells:
A {insert: "financial test," or "guarantee"} is also used
by this {insert: "owner or operator," or "guarantor"} to
demonstrate evidence of financial responsibility in the
following amounts under EPA regulations or state programs
authorized by EPA under 40 CFR Parts 271 and 145:
EPA Regulations Amount .
Closure (including §264.143 and §265.143) $
Post-Closure Care (including §264.145
and §265.145) $ •
Liability Coverage (including §264.147 and
§265.1 47) $
Corrective Action (including §264.101 (b)) $
Plugging and Abandonment (including §144.63)..$
TOTAL $ ]
This [insert: "owner or operator," or "guarantor"] has
not received an adverse report or a "going concern"
qualification from an independent accountant on his
financial statements for the latest completed fiscal year.
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1. a. Number of USTs being covered
b. Average maximum amount of
cleanup costs
(Rule .0204(d)(1))
c. Average maximum amount of
third-party costs
(Rule .0204(d)(2))
d. proportion covered
e. constant
(Rule .0302(b)(1)(A)(i))
f. Cleanup Total (a X b X d X e) $
g. Third-Party Total (0.02 X a X c X d )....$
h. If Guarantor, list $200,000 $
2. Tangible assests applied to USTs not
in North Carolina $
3. Ten times the costs for Hazardous Waste
Facilities and Injection Wells $
4. Sum of lines 1f, 1g, 1h, and 2 $
5. Total tangible assets $
6. Total liabilities [if any of the amount
reported on line 4 is included in total
liabilities, you may deduct that amount
from this line and add that amount to
line 7 ] $
7. Tangible net worth [subtract line 6 from
line 5 ] . . . $
Yes No
8. Is line 7 at least [for an owner or
operator: $150,000; for a guarantor:
$350,000]?
9. Is line 7 equal to or greater than line 4
10. Has a compilation report been issued by a
certified public accountant or certified
public accounting firm?
11. Have financial statements for the latest
fiscal year been filed with the Securities
and Exchange Commission?
12. Have financial statements for the latest
fiscal year been filed with the Energy
Information Administration?
13. Have financial statements for the latest
fiscal year been filed with the Rural
Electrification Administration?
14. 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]
I hereby certify that the wording of this letter is
identical to the wording specified in 15A NCAC 20.0302, as
such regulations were constituted on the date shown
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immediately below, and that the information contained
herein is complete and accurate.
[Signature of chief financial officer]
[Name]
[Title]
[Date]
(h) The provisions for "Trust Fund" contained in 40 CFR
280.102 are hereby incorporated by reference including any
subsequent amendments and editions. Locations where this
material is available are specified in Rule .0102 of this
Subchapter.
History Note: Statutory Authority G.S. 58-2-205;
143-215.94H; 150B-21.6
Eff. August 3, 1992
Incorporation bv Reference
280.102 Trust Fund.
(a) An owner or operator may satisfy the requirements of
§280.93 by establishing 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 agreement must be identical
to the wording specified in §280.103(b)(1), and must be
accompanied by a formal certification of acknowledgment 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 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 Director of the
implementing agency for release 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 written request to the
Director of the implementing 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
paragraphs (d) or (e) of this subpart, the Director of the
implementing agency will instruct the trustee to release to
the owner or operator such funds as the Director specifies
in writing.
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.0303 GUARANTEE
The provisions for "Guarantee" contained in 40 CFR 280.96
are hereby incorporated by reference including any
subsequent amendments and editions. Locations where this
material is available are specified in Rule .0102 of this
Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
280.96 Guarantee.
(a) An owner or operator may satisfy the requirements of
§280.93 by obtaining a guarantee that conforms to the
requirements of this section. The guarantor must be:
(1) A firm that (i) possesses a controlling interest
in the owner or operator; (ii) possesses a
controlling interest in a firm described under
(1)(i); or, (iii) is controlled through stock
ownership by a common parent firm that possesses
a controlling 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 relationship.
(b) Within 120 days of the close of each financial
reporting year the guarantor must demonstrate that it meets
the financial test criteria of §280.95 based on year-end
financial statements for the latest completed financial
reporting year by completing the letter from the chief
financial officer described in §280.95(d) and must deliver
the letter to the owner or operator. If the guarantor
fails to meet the requirements of the financial test at the
end of any financial reporting year, within 120 days of the
end of that financial reporting year the guarantor shall
send by certified mail, before cancellation or nonrenewal
of the guarantee, notice to the owner or operator. If the
Director of the implementing agency notifies the guarantor
that he no longer meets the requirements 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 alternate 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:
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GUARANTEE
Guarantee made this [date] by [name of guaranteeing
entity], a business entity organized 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 financial test
criteria of 40 CFR 280.95(b) or (c) and (d) and
agrees to comply with the requirements 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
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 requirement, and the
name and address of the facility.] This
guarantee satisfies 40 CFR Part 280, Subpart H
requirements for assuring funding for [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
"accidental 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
occurrence and [insert dollar amount] annual
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 guarantor is providing the
guarantee as an incident 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:
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In the event that [owner or operator] fails to
provide alternate 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.
In the event that the [Director] determines
that [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
[Director] shall fund a standby trust in
accordance with the provisions 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
"nonsudden"] accidental releases arising from the
operation of the above-identified 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 instructions from the [Director], shall
fund a standby trust in accordance with the
provisions of 40 CFR 280.108 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 the financial test criteria
of 40 CFR 280.95(b) or (c) and (d), guarantor shall
send within 120 days of such failure, by certified
mail, notice to [owner or operator]. The guarantee
will terminate 120 days from the date of receipt of
the notice by [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 (Bankruptcy), 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.
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(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-identified tank(s), except that guarantor may
cancel this guarantee by sending notice by certified
mail to [owner or operator], such cancellation to
become effective no earlier than 120 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 operator]
under a workers' compensation, disability
benefits, or unemployment compensation 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 arising 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, custody, or control
of, or occupied by [insert owner or operator]
that is not the direct result of a release from
a petroleum 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 280.93.
(9) Guarantor expressly waives notice of acceptance of
this guarantee by [the implementing 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 specified 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 obtained. Under the terms of
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the guarantee, all amounts paid by the guarantor under the
guarantee will be deposited directly into the standby trust
fund in accordance with instructions froa the Director of
the implementing agency under §280.108. This standby trust
fund must meet the requirements specified in §280.103.
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.0304 INSURANCE AND RISK RETENTION GROUP COVERAGE
The provisions for "Insurance and Risk Retention Group
Coverage" contained in 40 CFR 280.97 are hereby
incorporated by reference including any subsequent
amendments and editions, except that "licensed to transact
the business of insurance or eligible to provide insurance
as an excess or surplus lines insurer in one or more
states" in §§280.97(b)(1), (b)(2), and (c) is replaced by
"licensed, registered, or otherwise authorized to provide
insurance in North Carolina". Locations where this
material is available are specified in Rule .0102 of this
Subchapter.
History Note: Statutory Authority G.S. 58-2-125; 58-22;
143-215.94H; 150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
280.97 Insurance and Risk Retention Group Coverage.
(a) An owner or operator may satisfy the requirements of
280.93 by obtaining liability insurance that conforms to
the requirements of this section from a qualified insurer
or risk retention group. Such insurance may be in the form
of a separate insurance policy or an endorsement to an
existing insurance policy.
(b) Each insurance policy must be amended by an
endorsement worded as specified in paragraph (1) or
evidenced by a certificate of insurance worded as specified
in paragraph (2), except that instructions in brackets must
be replaced 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:
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Endorsement:
1. This endorsement certifies that the policy to
which the endorsement is attached provides
liability insurance covering the following
underground storage tanks:
[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 280.22, or
the corresponding state requirement, and
the name and address of the facility.]
for [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 "accidental
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
underground storage tank(s) identified
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 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
underground storage tank or location],
exclusive of legal defense costs. 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 sure 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 deductible
applicable to the policy to the provider of
corrective action or a damaged third-party,
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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 demonstrated under another
mechanism or combination 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"]
will be effective only upon written
notice and only after the expiration of
60 days after a copy of such written
notice is received by the insured.
[Insert for claims-made policies:
e. The insurance covers claims for any
occurrence that commenced during the
term of the policy that is discovered
and reported to the ["Insurer" or
"Group"] within six months of the
effective date of the cancellation or
termination 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 business of insurance or eligible to
provide insurance 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 Representative of [name of Insurer or
Risk Retention Group]
[Address of Representative]
) 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]:
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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 following 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
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 requirement, and
the name and address of the facility.]
for [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 "accidental
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
underground storage tank(s) identified
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 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 underground storage tank or
location], exclusive of legal defense costs.
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.
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b. The ["Insurer" or "Group"] is liable for the
payment of amounts within any deductible
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
demonstrated under another mechanism or
combination 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"] will
be effective only upon written notice and
only after the expiration of 60 days after a
copy of such written notice is received by
the insured.
[Insert for claims-made policies:
e. The insurance covers claims for any
occurrence that commenced during the term of
the policy that is discovered and reported
to the ["Insurer" or "Group"] within six
months of the effective date of the
cancellation or other termination 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 business of insurance, or eligible to
provide insurance 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.
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.0305 SURETY BOND
The provisions for "Surety Bond" contained in 40 CFR
280.98 are hereby incorporated by reference including any
subsequent amendments and editions. Locations where this
material is available are specified in Rule .0102 of this
Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.€
Eff. July 1, 1992
Incorporation bv Reference
280.98 Surety Bond.
(a) An owner or operator may satisfy the requirements of
§280.93 by obtaining 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]
Type of organization: [insert "individual," "joint
venture," "partnership," or "corporation"]
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
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 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 releases" or "nonsudden accidental
releases" or "accidental releases" "arising from
operating the underground storage tank"].
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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,
executors, 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 actions 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 provide financial assurance for
[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
"accidental 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 underground storage tanks
identified 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 obligation are
such that if the Principal shall faithfully ["take
corrective action, in accordance with 40 CFR Part 280,
Subpart F and the Director of the state implementing
agency'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) identified above, or if the
Principal shall provide alternate 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.
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Such obligation does not apply to any of the
following:
(a) Any obligation of [insert owner or operator]
under a workers' compensation, disability
benefits, or unemployment compensation 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 arising 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, custody, or control of,
or occupied by [insert owner or operator] that is
not the direct result of a release from a
petroleum underground 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 accordance 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 instructions," and/or
"third-party liability compensation"] or place funds
in an amount up to the annual aggregate penal sum into
the standby trust fund as directed by [the Regional
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 Director] under 40 CFR 280.108.
The Surety(ies) hereby waive(s) notification of
amendments to applicable laws, statutes, rules, and
regulations and agrees that no such amendment shall in
any way alleviate its (their) obligation on this bond.
The liability of the Surety(ies) shall not be
discharged by any payment or succession of payments
page 30
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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 wording 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)]
[Name(s)]
[Title(s)]
[Corporate seal]
CORPORATE SURETY(IES)
[Name and address]
State of Incorporation:
Liability limit: $
[Signature(s)]
[Name(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 is limited to the per-occurrence and
annual aggregate penal sums.
(d) The owner or operator who uses a surety bond to
satisfy the requirements 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 surety under
the bond will be deposited directly into the standby trust
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fund in accordance with instructions from the Director
under §280.108. This standby trust fund must meet the
requirements specified in §280.103.
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.0306 LETTER OF CREDIT
The provisions for "Letter of Credit" contained in 40 CFR
280.99 are hereby incorporated by reference including any
subsequent amendments and editions. Locations where this
material is available are specified in Rule .0102 of this
Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation by Reference
280.99 Letter of Credit.
(a) An owner or operator may satisfy the requirements of
§280.93 by obtaining an irrevocable standby letter of
credit that conforms to the requirements of this section.
The issuing institution must be an entity that has the
authority to issue letters of credit in each state where
used and whose letter-of-credit operations are regulated
and examined by a federal or state agency.
(b) The letter of credit must be worded 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 implementing
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 [address] 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 follows: "I
certify that the amount of the draft is payable
pursuant 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 bodily injury and property damage caused by"
either "sudden accidental releases" or "nonsudden
accidental releases" or "accidental releases"] arising
from operating the underground storage tank(s) identified
below in the amount of [in words] $[insert dollar amount]
page 33
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per occurrence and [in words] $[insert dollar amount]
annual aggregate:
[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 280.22, or
the corresponding state requirement, and the name and
address of the facility.]
The letter of credit may not be drawn on to cover any of
the following:
(a) Any obligation of [insert owner or operator] under a
workers' compensation, disability benefits, or
unemployment compensation 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 arising from the
ownership, maintenance, use, or entrustment to
others of amy aircraft, motor vehicle, or
watercraft;
(d) Property damage to any property owned, rented,
loaned to, in the care, custody, or control of, or
occupied by [insert owner or operator] that is not
the direct result of a release from a petroleum
underground 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 expiration date shall be
automatically extended 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 current expiration date, we notify [owner
or operator] by certified mail that we have decided not
to extend this letter of credit beyond the current
expiration date. In the event that [owner or operator]
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.
page 34
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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 immediately below.
[Signature(s) and title(s) of official(s) of issuing
institution]
[Date]
This credit is subject to [insert "the most recent
edition of the Uniform Customs and Practice for
Documentary Credits, published 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 requirements 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 deposited by the issuing institution
directly 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.
(d) The letter of credit must be irrevocable with a term
specified by the issuing institution. The letter of credit
must provide that credit be automatically 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
decision 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.
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.0307 STANDBY TRUST FUND
The provisions for "Standby Trust Fund" contained in 40
CFR 280.103 are hereby incorporated by reference including
any subsequent amendments and editions. Locations where
this material is available are specified in Rule .0102 of
this Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
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 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 federal agency
or an agency of the state in which the fund is established.
(b)(1) The standby 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," entered 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 Environmental Protection
Agency, "EPA," an agency of the United States
Government, has established certain regulations
applicable to the Grantor, requiring that an owner or
operator of an underground storage tank shall provide
assurance 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 accidental releases arising froa the
operation of the underground storage tank (This
paragraph is only applicable to the standby trust
agreement.)];
[Whereas, the Grantor has elected to establish
[insert either "a guarantee," "surety bond," or
"letter of credit"] to provide all or part of such
financial assurance for the underground storage tanks
identified herein and is required to establish a
standby trust fund able to accept payments from the
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instrument (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 agreement, and the Trustee is
willing to act as trustee;
Now, therefore, the Grantor and the Trustee 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 successor
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 established to
receive payments (This paragraph is only
applicable to the standby trust agreement.)].
Section 3. Establishment of Fund.
The Grantor and the Trustee hereby establish 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 standby to receive
payments and shall not consist of any property.]
Payments made by the provider of financial
assurance pursuant to [the Director of the
implementing agency's] instruction are
transferred to the Trustee and are referred to as
the Fund, together with all earnings and profits
thereon, less any payments or distributions made
by the Trustee pursuant to this Agreement. The
Fund shall be held by the Trustee, IN TRUST, as
hereinafter provided. The Trustee shall not be
responsible nor shall it undertake any
responsibility for the amount or adequacy of, nor
any duty to collect from the Grantor as provider
of financial assurance, any payments necessary to
discharge any liability of the Grantor
established by [the state implementing 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: "taking corrective action"
and/or "compensating third parties for bodily
page 37
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injury and property damage caused by" either
"sudden accidental releases" or "nonsudden
accidental releases" or "accidental releases"]
arising from operating the tanks covered by the
financial 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 operator]
under a workers' compensation, disability
benefits, or unemployment compensation 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 arising
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, custody, or
control of, or occupied by [insert owner or
operator] that is not the direct result of a
release from a petroleum underground 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 Director], from the
Fund for corrective action expenditures 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
writing. Upon refund, such funds shall no longer
constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall
consist of cash and securities acceptable 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 communicate in
writing to the Trustee from time to time,
subject, however, to the provisions of this
page 38
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Section. In investing, reinvesting, 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 familiar 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
defined 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
(iii)The Trustee is authorized to hold cash
awaiting investment or distribution
uninvested for a reasonable time and without
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
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-1 et seq., including
one which may be created, managed,
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
page 39
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dealing 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 instruments
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 certificates
representing such securities with
certificates 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
securities may be merged and held in bulk in
the name of the nominee of such depository
with other securities deposited therein by
smother 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 interest-
bearing accounts maintained or savings
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 rendered 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 consult with
counsel, who may be counsel to the Grantor, with
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respect to any questions arising as to the
construction of this Agreement 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 reasonable
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 resignation or replacement
shall not be effective until the Grantor has
appointed a successor trustee and this successor
accepts the appointment. The successor trustee
shall have the same powers and duties as those
conferred upon the Trustee hereunder. Upon the
successor trustee1s acceptance of the
appointment, the Trustee shall assign, transfer,
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 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 amy 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 writing,
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, 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 accordance with such
orders, requests, and instructions. 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.
page 41
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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 nay 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 15. Irrevocability and Termination.
Subject to the right of the parties to amend this
Agreement as provided in Section 14, this Trust
shall be irrevocable and shall continue until
terminated at the written 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 administration expenses, shall be delivered
to the Grantor.
Section 16. Immunity and Indemnification.
The Trustee shall not incur personal liability 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 saved harmless by the Grantor,
from and against any personal liability to which
the Trustee may be subjected by reason of any act
or conduct in its official capacity, including
all expenses reasonably incurred in its defense
in the event the Grantor fails to provide such
defense.
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 respective 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
page 42
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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 Witness]
[Title]
[Seal]
(2) The standby trust agreement must be accompanied
by a formal certification of acknowledgment
similar to the following. State requirements may
differ on the proper content of this
acknowledgment.
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 described in and
which executed the above instrument; that she/he
knows the seal of said corporation; that the seal
affixed to such instrument 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 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 establish one trust fund as
the depository mechanism for all funds assured in
compliance with this rule.
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.0308 INSURANCE POOLS
(a) Insurance Pools established by owners and operators
may be used alone or in combination to demonstrate
financial assurance in accordance with Rules .0204 and
.0301 of this Subchapter.
(b) To be an eligible mechanism, Insurance Pools must
comply with the requirements of G.S. 143-215.941 and any
other requirements imposed by the Commisioner of Insurance
of the State of North Carolina and any relevant law, rule,
or regulation.
(c) Each owner and operator provided financial assurance
through an Insurance Pool must maintain a certificate of
insurance issued by the Insurance Pool listing, at least:
(1) the name and address of the member;
(2) the location of the facilities owned by that
member where underground storage tanks are being
insured by the pool;
(3) the number of insured underground storage tanks
at each facility;
(4) the capacity of each insured underground storage
tank;
(5) the amount of insurance provided for each
underground storage tank; and
(6) the name, address, and signature of the
Administrator of the Insurance Pool.
History Note: Statutory Authority G.S. 143-215.94H;
143-215.941
Eff. July 1, 1992
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.0309 SUBSTITUTION OF FINANCIAL ASSURANCE MECHANISMS
The provisions for "Substitution of Financial Assurance
Mechanisms by Owners or Operators" contained in 40 CFR
280.104 are hereby incorporated by reference including any
subsequent amendments and editions. Locations where this
material is available are specified in Rule .0102 of this
Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
280.104 Substitution of Financial Assurance Mechanisms by
Owner or Operator.
(a) An owner or operator may substitute any alternate
financial assurance mechanisms as specified in this
subpart, provided that at all times he maintains an
effective financial assurance mechanism or combination of
mechanisms that satisfies the requirements of §280.93.
(b) After obtaining alternate financial assurance as
specified in this subpart, an owner or operator may cancel
a financial assurance mechanism by providing notice to the
provider of financial assurance.
page 45
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.0310 CANCELLATION OR NONRENEWAL BY A PROVIDER OF
ASSURANCE
The provisions for "Cancellation or Non-renewal by a
Provider of Financial Assurance" contained in 40 CFR
280.105 are hereby incorporated by reference including any
subsequent amendments and editions. Locations where this
material is available are specified in Rule .0102 of this
Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
§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 termination 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
receives the notice of termination, as evidenced
by the return receipt.
(2) Termination of insurance, risk retention group
coverage, 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.
(b) If a provider of financial responsibility cancels or
fails to renew for reasons other than incapacity of the
provider as specified in §280.106, the owner or operator
must obtain alternate coverage as specified in this section
within 60 days after receipt of the notice of termination.
If the owner or operator fails to obtain alternate coverage
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 provider of financial
assurance;
(2) The effective date of termination; and
(3) The evidence of the financial assurance mechanism
subject to the termination maintained in
accordance with §280.107(b).
page 46
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SECTION .0400 RESPONSIBILITIES OF OWNERS AND OPERATORS
.0401 REPORTING BY OWNER OR OPERATOR
The provisions for "Reporting by Owner or Operator"
contained in 40 CFR 280.106 are hereby incorporated by
reference including any subsequent amendments and editions.
Locations where this material is available are specified in
Rule .0102 of this Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
280.106 Reporting by Owner or Operator.
(a) An owner or operator must submit the appropriate
forms listed in §280.107(b) documenting current evidence 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 provider of financial
assurance as a debtor,
(ii) Suspension or revocation of the authority of
a provider of financial assurance 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 certify compliance with
the financial responsibility requirements of this Part as
specified in the new tank notification form when notifying
the appropriate state or local agency of the installation
of a new underground storage tank under §280.22.
(c) The Director of the Implementing Agency may require
an owner or operator to submit evidence of financial
assurance as described in §280.107(b) or other information
relevant to compliance with this subpart at any time.
(The information requirements in this section have been
approved by the Office of Management and Budget and
assigned OMB control number 2050-0066.)
page 47
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.0402 RECORD KEEPING
(a) The provisions for "Record Keeping" contained in 40
CFR 280.107 are hereby incorporated by reference including
any subsequent amendments and editions. Locations where
this material is available are specified in Rule .0102 of
this Subchapter.
(b) In addition to the requirements incorporated in
Paragraph (a) of this Rule, the following are required as
evidence of financial responsibility:
(1) An owner or operator using an "Insurance Pool"
must maintain a copy of the signed insurance
certificate as specified in Rule .0308(c) of this
Subchapter.
(2) Each owner or operator must maintain copies of
cancelled checks for payment of annual operating
fees for the preceding three years or any
alternate evidence of payment of the annual
operating fees supplied by the Department.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
280.107 Recordkeeping.
(a) Owners or operators must maintain evidence of all
financial assurance mechanisms used to demonstrate
financial responsibility under this subpart for an
underground storage tank until released from the
requirements of this Subpart under §280.109. 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 maintain the following
types of evidence of financial responsibility:
(1) An owner or operator using an assurance mechanism
specified in §§280.95-280.100 or §280.102 must
maintain a copy of the instrument worded as
specified.
(2) An owner or operator using a financial test or
guarantee must maintain a copy of the chief
financial 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.
page 48
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(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 insurance 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
required by the State under §280.101 (d).
(6) An owner or operator using an assurance mechanism
specified in §§280.95-280.102 must maintain 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 requirements of Subpart H of 40
CFR Part 280.
The financial assurance mechanism[s] used to
demonstrate financial 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 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 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]
The owner or operator must update this
certification whenever the financial assurance
mechanism(s) used to demonstrate financial
responsibility change(s).
(The information requirements in this section have been
approved by the Office of Management and Budget and
assigned 0MB control number 2050-0066.)
page 49
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.0500 CHANGES IN STATUS
.0501 DRAWING ON FINANCIAL ASSURANCE MECHANISMS
The provisions for "Drawing on Financial Assurance
Mechanisms" contained in 40 CFR 280.108 are hereby
incorporated by reference including any subsequent
amendments and editions. Locations where this material is
available are specified in Rule .0102 of this Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
280.108 Drawing on Financial Assurance Mechanisms.
(a) The Director of the implementing agency shall
require the guarantor, 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
financial 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 suspects that a
release from an underground storage tank
covered by the mechanism has occurred and so
notifies 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 covered by
the mechanism; or
(2) The conditions of paragraph (b)(1) or (b)(2)(i)
or (b)(2)(ii) are satisfied.
(b) The Director of the implementing agency may draw on
a standby trust fund when:
(1) The Director makes a final determination that a
release has occurred and immediate or long-term
corrective action for the release is needed, and
the owner or operiator, after appropriate notice
and opportunity to comply, has not conducted
corrective 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 representing the owner or
operator and the third-party liability
claimant(s) that a third-party liability
claim should be paid. The certification
page 50
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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 operator] 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 arising 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
[Signature(s)]
Claimant(s)
Attorney(s) for Claimant(s)
(Notary) Date
or (ii) A valid final court order establishing a
judgment against the owner or operator for
bodily injury or property 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 implementing 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 environment. The Director shall pay
third-party liability claims in the order in which the
Director receives certifications under paragraph (b)(2)(i)
of this section and valid court orders under paragraph
(b)(2)(ii) of this section.
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.0502 RELEASE FROM THE REQUIREMENTS
The provisions for "Release From the Requirements"
contained in 40 CFR 280.109 are hereby incorporated by
reference including any subsequent amendments and editions.
Locations where this material is available are specified in
Rule .0102 of this Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
150B-21.6
Eff. July 1, 1992
Incorporation bv Reference
280.109 Release from the Requirements.
An owner or operator is no longer required to maintain
financial responsibility under this subpart for an
underground storage tank after the tank has been properly
closed or, if corrective action is required, after
corrective action has been completed and the tank has been
properly closed as required by 40 CFR Part 280, Subpart G.
page 52
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.0503 INCAPACITY OF OWNER OR OPERATOR OR PROVIDER OF
ASSURANCE
(a) The provisions for "Bankruptcy or Other Incapacity
of Owner or Operator or Provider of Financial Assurance"
contained in 40 CFR 280.110, except for Subsection
280.110(d), are hereby incorporated by reference including
any subsequent amendments and editions. Locations where
this material is available are specified in Rule .0102 of
this Subchapter.
(b) Within 30 days after receipt of notification that
the Commercial Leaking Petroleum Underground Storage Tank
Cleanup Fund has become incapable of paying for assured
corrective action or third-party compensation costs, the
owner or operator must obtain financial assurance for the
full amounts specified in Rule .0204, Paragraphs (a) and
(c), of this Subchapter.
(c) Within 30 days after receipt of notification that
the Noncommercial Leaking Petroleum Underground Storage
Tank Cleanup Fund has become incapable of paying for
additional cleanup actions to be undertaken by the
Department, any owner or operator or guarantor who self
insures or guarantees based on Rule .0302, Paragraph (b),
of this Subchapter must obtain financial assurance for at
least twice the amount specified in Rule .0204, Paragraph
(d), of this Subchapter assured in accordance with Rule
.0302, Paragraph (b), of this Subchapter.
History Note: Statutory Authority G.S. 143-215.94H;
143-215.94T; 150B-21.6
Eff. July 1, 1992
Adoption by Reference
280.110 Bankruptcy or Other Incapacity of Owner or
Operator or Provider of Financial Assurance.
(a) Within 10 days after commencement of a voluntary or
involuntary proceeding under Title 11 (Bankruptcy), U.S.
Code, naming an owner or operator as debtor, the owner or
operator must notify the Director of the implementing
agency by certified mail of such commencement and submit
the appropriate forms listed in §280.107(b) documenting
current financial responsibility..
(b) Within 10 days after commencement of a voluntary or
involuntary proceeding under Title 11 (Bankruptcy), 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 required under the
terms of the guarantee specified in §280.96.
(c) An owner or operator who obtains financial assurance
by a mechanism other than the financial test of
self-insurance 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
page 53
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suspension or revocation of the authority of the provider
of financial assurance 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 financial 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 coverage within 30 days after such
notification, he aust notify the Director of the
implementing 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
alternate financial assurance.
page 54
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.0504 REPLENISHMENT
(a) The provisions for "Replenishment of Guarantees,
Letters of Credit, or Surety Bonds" contained in 40 CFR
280.111 are hereby incorporated by reference including any
subsequent amendments and editions. Locations where this
material is available are specified in Rule .0102 of this
Subchapter.
(b) If at any time after a standby trust is funded upon
the instruction of the Department with funds drawn from a
guarantee, letter of credit, or surety bond, and the amount
in the standby trust is reduced to less than the amount for
which the owner or operator is responsible per occurrence
for third party claims, the owner or operator shall within
sixty (60) days 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 assurance mechanism for
the full amount of coverage provided by the
Standby Trust.
History Note: Statutory Authority G.S. 143-215.94H;
143-215.94T; 150B-21.6
Eff. July 1, 1992
Incorporation by Reference
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 am tee, letter of credit, or
surety bond, and the amount in the standby trust is reduced
below the full amount of coverage required, the owner or
operator shall by the anniversary 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 assurance 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.
page 55
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1000 copies of this public document were printed at a cost of S756.50 or SO.756 per copy. November 1995
-------
*
mgm
Title 15A
Department of Environment, Health, and Natural Resources
Division of Environmental Management
.N*n a I'jy.
Quam
Subchapter 2P
Sections .0100,
thru .0400
Rules For The
Administration of
The Leaking
Petroleum
Underground
Storage Tank
Cleanup Funds
Current Through August 27, 1993
Environmental Management Commission
Raleigh, North Carolina
-------
SUBCHAPTER 2P
LEAKING PETROLEUM UNDERGROUND STORAGE TANK
CLEANUP FUNDS
TABLE OF CONTENTS
SECTION: .0100 ¦ GENERAL CONSIDERATIONS
.0101 GENERAL pg. 1
.0102 COPIES OF RULES INCORPORATED BY REFERENCE 1
.0103 FALSE OR MISLEADING INFORMATION 2
SECTION: .0200 ¦ PROGRAM SCOPE
.0201 APPLICABILITY 3
.0202 DEFINITIONS 3
SECTION: .0300. ANNUAL OPERATING FEES
.0301 FEES AND PAYMENT 5
.0302 NOTIFICATION 5
SECTION: .0400 - REIMBURSEMENT PROCEDURE
.0401 ELIGIBILITY OF OWNER OR OPERATOR 7
.0402 CLEANUP COSTS 8
.0403 THIRD PARTY CLAIMS 8
.0404 REQUESTS FOR REIMBURSEMENTS 9
.0405 METHOD OF REIMBURSEMENT 10
.0406 REIMBURSEMENT APPORTIONMENT 10
'.0407 FINAL ACTION 10
-------
EHNR - ENVIRONMENTAL MANAGEMENT
T15A: 02P .0100
CHAPTER 2 - ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 2P - LEAKING PETROLEUM UNDERGROUND STORAGE TANK CLEANUP
FUNDS
SECTION .0100 - GENERAL CONSIDERATIONS
.0101 GENERAL
(a) The purpose of this Subchapter is to establish criteria and procedures for the
reimbursement of costs incurred by owners, operators, and landowners from the Leaking
Petroleum Underground Storage Tank Cleanup Funds.
(b) The Groundwater Section of the Division of Environmental Management of the
Department of Environment, Health and Natural Resources shall administer the
Commercial and Noncommercial Underground Storage Tank Cleanup Funds for the State
of North Carolina.
(c) As authorized by G.S. 143-215.94G, the Department may engage in cleanup work it
deems appropriate and pay the costs from the Noncommercial Fund in accordance with G.S.
143-215.94D.
(d) The Department may engage in investigations and cleanups in accordance with the
severity of threat to human health and safety and to the environment, and the availability
of resources, as determined by the Division.
History Note: Statutory Authority G.S. 143-215.3; 143-215.76; 143-215.94B;
143-215.94D; 143-215.94E; 143-215.94G; 143-215.94L; 143-215.94T;
143B-282;
Eff. February 1, 1993;
Amended Eff. September 1, 1993.
.0102 COPIES OF RULES INCORPORATED BY REFERENCE
(a) Copies of applicable sections of Subchapter 2N of Title 15A, North Carolina
Administrative Code incorporated by reference in this Subchapter, including any subsequent
amendments and editions, are available for public inspection at Department of Environ-
ment, Health, and Natural Resources Regional Offices. They are:
(1) Asheville Regional Office, Interchange Building, 59 Woodfin Place, Asheville,
North Carolina 28801;
(2) Winston-Salem Regional Office, Suite 100, 8025 North Point Boulevard,
Winston-Salem, North Carolina 27106;
(3) Mooresville Regional Office, 919 North Main Street, Mooresville, North Carolina
28115;
(4) Raleigh Regional Office, 3800 Barrett Drive, Post Office Box 27687, Raleigh,
North Carolina 27611;
(5) Fayetteville Regional Office, Wachovia Building, Suite 714, Fayetteville, North
Carolina 28301;
NORTH CAROLINA ADMINISTRATIVE CODE 08/27/93
Page 1
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EHNR - ENVIRONMENTAL MANAGEMENT
T15A: 02P .0100
(6) Washington Regional Office, 1424 Carolina Avenue, Farish Building, Washington,
North Carolina 27889;
(7) Wilmington Regional Office, 127 Cardinal Drive Extension, Wilmington, North
Carolina 28405.
(b) Copies of such rules can be made at these regional offices for ten cents ($0.10) per
page.
History Note: Statutory Authority G.S. 12-3.1(c); 143-215.3; 143-215.94L;
143-215.94T; 143B-282;
150B-21.6;
Eff. February 1, 1993.
.0103 FALSE OR MISLEADING INFORMATION
Any owner or operator or authorized agent who knowingly submits any false or misleading
information with regard to these Rules may be considered to be contributing to a discharge,
interfering with the mitigation of a discharge, or preventing the early detection of a
discharge pursuant to G.S. 143-215.94E(g)(l) if the false or misleading information results
in delay of any efforts to stop the release or discharge, results in delay of detection of any
portion of the discharge or release, or results in delay of investigatory or remedial
activities.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94E; 143-215.94L;
143-215.94T; 143B-282;
Eff. February 1, 1993.
NORTH CAROLINA ADMINISTRATIVE CODE 08/27/93
Page 2
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EHNR - ENVIRONMENTAL MANAGEMENT
T15A: 02P .0200
SECTION .0200 - PROGRAM SCOPE
.0201 APPLICABILITY
(a) This Subchapter shall apply to the disbursement of funds from the Commercial
Leaking Petroleum Underground Storage Tank Cleanup Fund and Noncommercial Leaking
Petroleum Underground Storage Tank Cleanup Fund, and to the collection of annual
operating fees.
(b) Any portions of this Subchapter which concern annual tank operating fees apply to all
owners and operators of Commercial Underground Storage Tanks that have been in use in
North Carolina on or after January 1, 1989.
(c) This Subchapter shall apply to discharges or releases from noncommercial or
commercial underground storage tank systems, regardless of whether such systems are
regulated under Subchapter 2N of Title 15A, of the North Carolina Administrative Code.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94B; 143-215.94C;
143-215.94D; 143-215.94E; 143-215.94L; 143-215.94T; 143B-282;
Eff. February 1, 1993.
.0202 DEFINITIONS
(a) The Definitions for "Criteria and Standards Applicable to Underground Storage Tanks"
contained in 15A NCAC 2N .0203 are hereby incorporated by reference including
subsequent amendments and editions, except that for the purposes of this Subchapter, the
definition of "Underground Storage Tank" shall be as defined in Subparagraph (b)(12) of this
Rule.
(b) The following terms are defined for use in this Subchapter:
(1) "Annual operating fee" is an annual fee required to be paid to the Department by
the owner or operator of each commercial underground storage tank in use on or
after 1 January of the year, beginning with 1989.
(2) "Commission" means the Environmental Management Commission as organized
under Chapter 143B of the General Statutes.
(3) "Department" means Department of Environment, Health, and Natural Resources.
(4) "Discovered release" means a release which an owner or operator, or its employee
or agent, has been made aware of, has been notified of, or has a reasonable basis
for knowing has occurred.
(5) "Dual usage tank" means an underground storage tank which could be considered
both a commercial underground storage tank and a noncommercial underground
storage tank and for which both the commercial and the noncommercial usages
are integral to the operation or existence of the tank.
(6) "Household" means a permanent structure, whether free-standing or connected to
other units, used primarily for living, where primary living space and primary food
preparation facilities are controlled or maintained by the residents. "Household"
includes single-family houses, mobile homes, apartments, and single living units,
whether or not the residents are related to each other and whether the units are
occupied on a year-round or seasonal basis. "Household" does not include
dormitories, hospitals, hotels, motels, apartment buildings (as distinct from the
individual apartments therein), or other multiple dwelling structures. The term
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EHNR - ENVIRONMENTAL MANAGEMENT T15A: 02P .0200
"four or fewer households" shall relate to underground storage tanks serving
households only.
(7) "Landowner" means any record fee owner of real property that contains or
contained a commercial underground storage tank of which he does not qualify as
an owner or operator pursuant to G.S. 143-215.94A.
(8) "Occurrence" means one or more release(s) that result(s) in a single plume of soil,
surface water, or groundwater contamination (consisting of free product or
dissolved contaminants exceeding standards specified in 15A NCAC 2L or any
other applicable laws, rules or regulations) originating at a single property.
(9) "Reasonable and necessary expenditures" means expenditures for the cleanup of
environmental damage performed in accordance with applicable environmental
laws and regulations and which are essential in determining the extent of
contamination, in conducting release response or remediation, or which compen-
sate third parties for resulting bodily injury and property damage. The Commis-
sion shall consider such expenditures reasonable and necessary to the extent that
they are sufficiently documented, are performed in an efficient manner
considering comparable costs for labor, equipment, and materials, and utilize
cost-efficient methods.
(10) "Substantive law, rule, or regulation" shall mean any law, rule, or regulation
requiring an owner or operator to perform any act necessary and essential in
preventing discharges or releases, in facilitating their early detection, and in
mitigating the impact of discharges or releases.
(11) "Tank in operation" means an underground storage tank into which product is
added or from which product is removed for purposes other than closure.
(12) "Tank in use" means an underground storage tank intended for the containment or
dispensing of petroleum product.
(13) "Underground storage tank", as used in this Subchapter means any Commercial or
Noncommercial Underground Storage Tank as defined in G.S. 143-215.94A. A dual
usage tank is considered to be a commercial underground storage tank.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94A; 143-215.94B;
143-215.94C; 143-215.94D; 143-215.94E; 143-215.94L; 143-215.94T;
143B-282;
Eff. February 1, 1993;
Amended Eff. September 1, 1993.
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SECTION .0300 - ANNUAL OPERATING FEES
.0301 FEES AND PAYMENT
(a) The owner or operator of each commercial underground storage tank shall pay all
annual tank operating fees due for that underground storage tank.
(b) The Division shall send an invoice, for the amount of the annual operating fees due,
to the owner or operator of any commercial petroleum underground storage tank in use on
January 1 of the year and which has been registered with the Department. The annual
operating fee shall be due and payable 30 days following the date of the invoice and shall
be submitted to the Division accordingly.
(c) Any owner or operator not receiving an invoice for annual operating fees shall still
pay any fees due according to the following schedule:
(1) If the owner or operator has paid annual operating fees for the subject tank in
previous years, the payment will be submitted to the Division within 30 days of
the anniversary of the last invoicing date for the fees.
(2) If the owner or operator has not previously paid annual operating fees for the
subject tank, any annual operating fee is due on 1 January of that year and shall
be submitted to the Division accordingly.
(d) Any commercial underground storage tank (except commercial underground storage
tanks not regulated under 15A NCAC 2N) which was in operation on or after December 22,
1988 and has not been permanently closed in accordance with 15A NCAC 2N .0800 is
considered to be in use unless the provisions of G.S. 143-215.94D(b)(4) are applicable.
(e) Any annual operating fee due on or after January 1, 1992, that is not paid within 30
days of the due date shall be subject to a late penalty of five dollars ($5.00) per day up to
an amount equal to the original fee. The late penalty will be assessed based on the date
of receipt of fee payment by the Division.
(f) All annual operating fees due for any year are assessed in accordance with the
schedule of fees in effect during that year. Payment of fees due for a prior year will be
at the rate in effect during that prior year. It is the responsibility of the owner or
operator to determine that all fees have been paid in accordance with Paragraph (a) of this
Rule.
(g) In the event that an annual operating fee was paid for a tank for which a fee was not
required, a refund of that fee payment may be requested by the owner or operator. A
refund will be granted if the owner or operator provides adequate documentation that the
tank was exempt from the requirement to pay the annual operating fee.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94C; 143-215.94D;
143-215.94E; 143-215.94L; 143-215.94T; 143B-282;
Eff. February 1, 1993.
.0302 NOTIFICATION
Any person acquiring ownership of an existing commercial underground storage tank shall
provide written notification to the Division of this action within 30 days of the date of
transfer. This notification must indicate the following:
(1) Name and address of the previous owner and the new owner;
(2) Name, identification number, and street address of the facility;
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(3) Date of transfer;
(4) Signatures of the transferring owner and the new owner or their authorized
representatives.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94L; 143-215.94T;
143B-282;
Eff. February 1, 1993.
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SECTION .0400 - REIMBURSEMENT PROCEDURE
.0401 ELIGIBILITY OF OWNER OR OPERATOR
(a) Date of Release.
(1) An owner or operator or landowner of a commercial underground storage tank is
not eligible for reimbursement of costs from the Commercial Fund related to
releases which were discovered prior to June 30, 1988.
(2) An owner or operator of a noncommercial underground storage tank is eligible for
reimbursement of costs without regard to the date a release is discovered.
(3) An owner or operator of a commercial underground storage tank which qualifies
for the Noncommercial Fund pursuant to G.S. 143-215.94D(b)(3) and 143-
215.94D(b)(4) is eligible for reimbursement of costs without regard to the date a
release is discovered.
(4) An owner or operator or landowner of a commercial underground storage tank,
from which a release is discovered on or after July 3, 1991, is not eligible for
reimbursement from the Commercial Fund if the tank had been removed from the
ground more than 120 days prior to the date of discovery of the release.
(b) An owner or operator of a commercial underground storage tank is not eligible for
reimbursement for costs related to releases if any annual operating fees due have not been
paid in accordance with Rule .0301 of this Subchapter prior to discovery. A previous owner
or operator of a commercial underground storage tank may be eligible for reimbursement
of costs for cleanup of a release discovered after he ceases owning or operating the
underground storage tank if all fees due during his period of ownership and operation have
been paid prior to discovery of the release. A landowner is eligible for reimbursement of
costs without regard to the payment of fees.
(c) An owner or operator or landowner of a commercial or noncommercial underground
storage tank is not eligible for reimbursement of any expended costs which are in excess
of the amount determined reasonable in accordance with Rule .0402, and which are not
necessary in performing cleanup of environmental damage and in compensating third parties
for bodily injury and property damage, and which are less than any deductible established
for the appropriate fund.
(d) An owner or operator or landowner of a commercial or noncommercial underground
storage tank may be reimbursed for eligible costs only after submittal of a written
application to the Division, on forms provided by the Division, and which includes any
information and documentation necessary to determine eligibility and to determine that any
expended costs are reasonable and necessary.
(e) An owner or operator of a commercial or noncommercial underground storage tank
shall not be eligible for reimbursement for costs related to releases if the owner or
operator has willfully violated any substantive law, rule, or regulation applicable to
underground storage tanks intended to prevent, mitigate, or facilitate the early detection
of discharges or releases.
(f) The release response and corrective action requirements of any rules of the
Commission and of any statute administered by the Department shall not in any way be
construed as limited by, or contingent upon, any reimbursement from either the
Noncommercial Fund or the Commercial Fund.
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History Note: Statutory Authority G.S. 143-215.3; 143-215.94B; 143-215.94E;
143-215.94L; 143-215.94N; 143-215.94T; 143B-282;
Eff. February 1, 1993;
Amended Eff. September 1, 1993.
.0402 CLEANUP COSTS
(a) In determining whether costs expended by an owner or operator or landowner are
reasonable and necessary, the Division shall consider the following:
(1) Adequacy and cost-effectiveness of any work performed and technical activity
utilized by the owner or operator or landowner in performing release response,
site assessment and corrective action.
(2) Typical billing rates of engineering, geological, or other environmental consulting
firms providing similar services in the State as determined by the Division.
(3) Typical rental rates for any necessary equipment as determined by the Division.
The amount reimbursed for equipment rental shall not exceed the typical purchase
price of such equipment.
(4) Typical costs or rates of any other necessary service, labor or expense as
determined by the Division.
(b) Expenditures not eligible for reimbursement shall include the following:
(1) Costs of the removal and disposal of noncommercial underground storage tanks
and contents removed on or after July 3, 1991, and of commercial underground
storage tanks and contents removed on or after January 1, 1992;
(2) Costs of the replacement of any underground storage tank, piping, fitting, or
ancillary equipment;
(3) Costs incurred in preparation of any proposals or bid by a provider of service for
the purpose of soliciting or bidding for the opportunity to perform an environmen-
tal investigation or cleanup, even if that provider is ultimately selected to provide
the service solicited;
(4) Interest on any accounts, loans, etc.;
(5) Expenses charged by the owner or operator or landowner in the processing and
management of a reimbursement application or subsequent claims;
(6) Attorney's fees;
(7) Penalties, fees, and fines assessed by any court or agency;
(8) Loss of profits, fees, and wages incurred by the owner or operator or landowner;
(9) Any other expenses not specifically related to environmental cleanup, or
implementation of a cost effective environmental cleanup, or third party bodily
injury or property damage.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94B; 143-215.94D;
143-215.94E; 143-215.94L; 143-215.94T; 143B-282;
Eff. February 1, 1993;
Amended Eff. September 1, 1993.
.0403 THIRD PARTY CLAIMS
(a) An owner or operator seeking reimbursement from the appropriate fund for any third
party claim for bodily injury or property damage must notify the Division of any such
claim. The owner or operator must provide the Division with all pleadings and other
related documents if a lawsuit has been filed. The owner or operator shall provide to the
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15ANCAC 2P. 0402(a) is proposed for amendment in a temporary action as follows:
.0402 CLEANUP COSTS
(a) In determining whether costs expended by an owner or operator or landowner are
reasonable and necessary, the Division shall consider the following:
(1) Adequacy and cost-effectiveness of any work performed and technical activity utilized
by the owner or operator or landowner in performing release response, site assessment
and corrective action.
(2) Typical billing rates of engineering, geological, or other environmental consulting firms
providing similar services in the State as determined by the Division.
(3) Typical rental rates for any necessary equipment as determined by the Division. The
amount reimbursed for equipment rental shall not exceed.the typical purchase price of
such equipment.
(4) Typical costs or rates of any other necessary service, labor or expense as determined by
the Division.
(5} Whether costs expended for corrective action were required bv 15ANCAC 2L .0106.
(b) Expenditures not eligible for reimbursement shall include the following:
(1) Costs of the removal and disposal of noncommercial underground storage tanks and
contents removed on or after July 3, 1991, and of commercial underground storage tanks and .
contents removed on or after January 1, 1992;
(2) Costs of the replacement of any underground storage tank, piping, fitting, or ancillary
equipment;
(3) Costs incurred in preparation of any proposals or bid by a provider of service for the
purpose of soliciting or bidding for the opportunity to perform an environmental
investigation or cleanup, even if that provider is ultimately selected to provide the
service solicited;
(4) Interest on any accounts, loans, etc.;
(5) Expenses charged by the owner or operator or landowner in the processing and
management of a reimbursement application or subsequent claims;
(6) Attorney's fees;
(7) Penalties, fees, and fines assessed by any court or agency;
(8) Loss of profits, fees,' and wages incurred by the owner or operator or landowner;
(9) Any other expenses not specifically related to environmental cleanup, or implementation
of a cost effective environmental cleanup, or third party bodily injury or property
damage.
History Note: Filed as a Temporary Rule Amendme?it Effective December I.
1995. for a period of 797 dcrvs to expire on February 5. 1998.
Statutoiy Authority G.S. 143-215.3; 143-215.94B; 143-215.94D;
143-215.94E; 143-215.94L; 143-215.94T: 143-215.94V: 143B-282;
Eff. February 1, 1993;
Amended Eff. September 1, 1993.
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EHNR - ENVIRONMENTAL MANAGEMENT
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Division copies of any medical reports, statements, investigative reports, or certifications
from licensed professionals necessary to determine that a claim for bodily injury or
property damage is reasonable and necessary.
(b) The term third party bodily injury means specific physical bodily injury proximately
resulting from exposure, explosion, or fire caused by the presence of a petroleum release
and which is incurred by a person other than the owner or operator, or employees or agents
of an owner or operator.
(c) The term third party property damage means actual physical damage or damage due
to specific loss of normal use of property owned by a person other than the owner or
operator of an underground storage tank from which a release has occurred. 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.
Third party property damage shall be reimbursed from the appropriate 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 at an amount necessary to
replace or repair the destroyed property.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94B; 143-215.94D;
143-215.94E; 143-215.94L; 143-215.94T; 143B-282;
Eff. February 1, 1993.
.0404 REQUESTS FOR REIMBURSEMENT
(a) An application for reimbursement must be made on a form provided by the Division.
The application form must accompany the initial reimbursement request.
(b) A request for reimbursement shall include copies of any documentation required by
the Division to determine that expended costs ore reasonable and necessary. Proof of
payment must accompany any request for reimbursement, except when reimbursement will
be made jointly to the owner or operator or landowner and either a provider of service or
a third party claimant. The Division may require the owner or operator or landowner to
submit any information required for the purpose of substantiating any claim for
reimbursement on forms provided by the Division.
(c) A request for reimbursement may be returned or additional information requested by
the Division, if it is found to be incomplete.
(d) The Division shall reimburse an owner or operator or landowner for expenses following
completion of any significant phase of cleanup work or in accordance with the schedule
allowed by G.S. 143-215.94E(e).
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.0405 METHOD OF REIMBURSEMENT
(a) Reimbursement for cleanup costs shall be made only to an owner or operator or
landowner of a petroleum underground storage tank, or jointly to an owner or operator or
landowner and a provider of service.
{b) Reimbursement of cleanup costs to the owner or operator or landowner shall be made
only after proof of payment for such costs has been received by the Division.
(c) Joint reimbursement of cleanup costs shall be made to an owner or operator or
landowner and a provider of service only upon receipt of a written agreement acknowledged
by both parties. Any reimbursement check shall be sent directly to the owner or operator
or landowner.
(d) Payment of third party claims shall be made to the owner or operator, or jointly to
the owner or operator and the third party claimant.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94B; 143-215.94E;
143-215.94L; 143-215.94T; 143B-282;
Eff. February 1, 1993;
Amended Eff. September 1, 1993.
.0406 REIMBURSEMENT APPORTIONMENT
(a) Where multiple occurrences are addressed in a single cleanup action, expenses will be
reimbursed based on apportionment among the occurrences. The method of apportionment
will be as follows:
(1) Expenses related directly to a particular occurrence shall be applied only to that
occurrence;
(2) Expenses that are related to more than one occurrence will be apportioned equally
among the occurrences.
(b) Where not all underground storage tanks contributing to an occurrence are eligible for
reimbursement, reimbursement will be made at a rate equal to the number of tanks
contributing to the occurrence which are eligible for reimbursement divided by the total
number of tanks contributing to the occurrence.
(c) If multiple underground storage tanks at a single property are contributing to a single
occurrence and the tanks are owned or operated by different persons, reimbursement may
be made to any of the owners or operators as if the occurrence were caused solely by that
person's underground storage tanks.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94E; 143-215.94L;
143-215.94T; 143B-282;
Eff. February 1, 1993.
.0407 FINAL ACTION
(a) The Director, or his delegate, shall make the agency decision on a written application
for eligibility for reimbursement from the appropriate fund. The Director, or his delegate,
shall make the agency decision on any written request for reimbursement made subsequent
to an initial application.
(b) An owner or operator or landowner who has been denied eligibility for reimbursement
from the appropriate fund after submittal of a written application in accordance with the
procedures of this Subchapter, or who has had any written reimbursement request denied
after submittal in accordance with the procedures of this Subchapter, shall be notified of
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the right to petition for a contested case in the Office of Administrative Hearings in
accordance with the procedure set out in G.S. 150B-23. The Secretary of the Department
of Environment, Health, and Natural Resources shall make the final agency decision in any
contested case pursuant to G.S. 150B-36.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94B; 143-215.94D;
143-215.94E; 143-215.94L; 143-215.94T; 143B-282; 150B-23;
1 SOB-36;
Eff. February 1, 1993;
Amended Eff. September 1, 1993.
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Table of Contents
SUBCHAPTER IK
GROUNDWATER PROTECTION LOAN FUND
Page
SECTION: .0100 - PROGRAM SCOPE
.0101 GENERAL 1
.0102 APPLICABILITY 2
.0103 DEFINITIONS 3
SECTION: .0200 - APPLICATION
.0201 ELIGIBILITY 4
.0202 APPLICATION PROCEDURE 5
SECTION .0300 - LOAN ADMINISTRATION
.0301 BANK ELIGIBILITY 6
.0302 LOAN PROCESSING BY BANKS 7
.0303 DUTIES OF THE COORDINATOR 8
.0304 LOAN APPROVAL CRITERIA 9
.0305 DELINQUENT ACCOUNTS 10
SECTION .0400 - LOAN CONDITIONS
.0401 LOAN ADMINISTRATION FEES AND COSTS 1 1
.0402 INTEREST AND TERM 12
.0403 ADDITIONAL CONDITIONS 13
.0404 FUNDING OF LOAN 1 4
c5~-i-L ll «
?
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TITLE 15A
# SUBCHAPTER IK - GROUNDWATER PROTECTION LOAN FUND
SECTION .0100 PROGRAM SCOPE
.0101 GENERAL
(a) The purpose of this Subchapter is to establish
requirements for borrowers and administrators of the monies of
the Groundwater Protection Loan Fund (Loan Fund).
(b) The Division of Environmental Management (Division) shall
administer the Loan Fund.
History Note: Statutory Authority G.S. 143-21 5.94P;
143B-279.2
Eff. December 1, 1992
15A NCAC 1K
1
December 1, 1992
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.0102 APPLICABILITY
(a) Monies from the Loan Fund are available to all owners of
commercial underground storage tanks in North Carolina which were
in use on July 1, 1991, and which are subject to the technical
standards contained in 15A NCAC 2N.
(b) Monies from the Loan Fund shall only be used to upgrade or
replace commercial underground storage tanks to meet technical
standards set forth in 15A NCAC 2N relating to corrosion
protection, spill and overfill containment and prevention, and
leak detection. Loan monies shall not be used to conduct
environmental site assessments or environmental remediation, to
construct new buildings, nor to install or replace petroleum
marketing equipment such as dispensers, islands, and canopies.
Loan monies may be used for landscaping or paving of the site
only if the landscaping or paving is required to complete the
upgrade or to restore the site after tank replacement.
(c) Each loan shall be designated for a specific site. No
owner shall apply for or receive more than one loan under the
provisions of this Subchapter for a single site.
(d) No single loan under the provisions of this Subchapter
shall exceed one hundred thousand dollars ($100,000).
(e) No owner shall apply for or receive loans under the
provisions of this Subchapter in excess of five hundred thousand
dollars ($500,000). If one or more business(es) under the same
or different name(s) is(are) fifty percent owned by a single
individual, partnership, or corporation, this(these) company(ies)
shall not apply for or receive loans under the provisions of this
Subchapter in excess of five hundred thousand dollars ($500,000).
(f) Applications for loans from the Loan Fund must be made in
accordance with the provisions of this Subchapter and must be
received by a participating Bank prior to January 1, 1995. All
approved loans must be funded on or before June 30, 1995.
History Note: Statutory Authority G.S. 143-215.94P;
143-215.94T
Eff. December 1, 1992
15A NCAC 1K
2
December 1, 1992
-------
.0103 DEFINITIONS
(a) The terms used in this Subchapter shall be as defined in
15A NCAC 2N.0203.
(b) The following definitions are defined for the purpose of
this Subchapter:
(1) "Annual Operating Fee" is an annual fee required to be
paid to the Department by the owner or operator of each
commercial underground storage tank in use on or after
January 1 of the year, beginning with 1989.
(2) "Bank" means any commercial lending institution as
specifically defined in N.C.G.S. 53-1.
(3) "Borrower" means any owner of a commercial underground
storage tank who applies for or receives a loan from
the Loan Fund.
(4) "Coordinator" means an individual or contractor
authorized by the Department to coordinate all
activities between the Department and banks pertaining
to the Loan Fund. The official title of this
individual or contractor shall be Loan Fund
Coordinator.
(5) "Department" means the Department of Environment,
Health, and Natural Resources.
(6) "Primary Bank" means a bank in which the borrower has
existing accounts or from which the borrower has
received loans.
(7) "Serious Contamination" means any groundwater-
contamination at levels above the standards established
in 15A NCAC 2L or any soil contamination extending
beyond the property boundaries which requires
remediation pursuant to the Oil Pollution and Hazardous
Substances Control Act of 1978 (G.S. 143-215.75 -.94).
(8) "Tank In Use" means an underground storage tank which
is intended for the containment or dispensing of
petroleum products.
History Note: Statutory Authority G.S. 143-215.94A;
143-215.94P; 143-215.94T
Eff. December 1, 1992
15A NCAC 1K
3
December 1, 1992
-------
SECTION .0200 APPLICATION
.0201 ELIGIBILITY
For an owner of a commercial petroleum underground storage tank
to be eligible for a loan from the Loan Fund to upgrade or
replace that tank, all of the following criteria must be met.
(1) The tank must be located in North Carolina and have been
in use on July 1, 1991.
(2) The tank must be registered with the Department.
(3) All annual operating fees required of the borrower
pursuant to G.S. 143-215.94C must have been paid.
(4) The owner must have formally applied for a conventional
loan from his primary bank for the subject work, and must
have been denied based solely on reasonable concerns with
respect to potential liability for environmental
compliance by the lender, not financial reasons. The
owner must have qualified for the loan in all other
respects using generally accepted standards prevailing
among commercial lending institutions.
History Note: Statutory Authority G.S. 143-215.94P;
143-215.94T
Eff. December 1, 1992
15A NCAC IK
4
December 1, 1992
-------
.0202 APPLICATION PROCEDURES
(a) Each application to the Loan Fund must be made through a
Bank that has entered into an agreement with the Department to
act as an administrative agency for the Loan Fund.
(b) Each application submitted to the Loan Fund must be made
on forms supplied by the Department and must be accompanied by
the following:
(1) A letter from the declining Bank stating the reason the
loan application was denied;
(2) Supporting financial statements;
(3) A complete scope of work for the upgrade or replacement
of the tank(s) which provides a description of the work
to be performed addressing each of the following three
categories according to the technical standards
specified in 15A NCAC 2N:
(A) Corrosion protection for tank(s) and piping,
(B) Spill and overfill protection and prevention, and
(C) Leak detection for tanks and piping;
(4) A binding estimate for the scope of work. This work
may be performed by the borrower's own qualified
construction personnel; and
(5) Any applicable fees required by Paragraph (b) of Rule
.0401 of this Subchapter.
(c) If the borrower plans to use real estate where commercial
petroleum underground storage tanks are located or were formerly
located as collateral, a site assessment must be performed by a
Professional Engineer or a Licensed Geologist as defined in G.S.
89C-3 and G.S. 89E-3, respectively, prior to the submittal of the
application. The site assessment report shall be attached to a
letter of certification stating whether the site has serious
contamination, and shall be submitted to the Bank with the
application.
(d) In the event the borrower must use real estate where
commercial petroleum underground storage tanks are not and have
not been located as collateral, the borrower must certify and
furnish evidence satisfactory to the Bank and in accordance with
all generally accepted prevailing standards commonly used by
banks, including those for environmental compliance, that the
real estate to be used would be acceptable as collateral.
History Note: Statutory Authority G.S. 143-215.94C;
143-215.94P; 143-215.94T
Eff. December 1, 1992
15A NCAC 1K
5
December 1, 1992
-------
.0300 LOAN ADMINISTRATION
.0301 BANK ELIGIBILITY
(a) Each bank in North Carolina shall be invited to
in the Loan Fund program. Acceptance of a letter of agreement
with the Department shall qualify the Bank to participate in the
administration of the Loan Fund.
(b) For the purposes of providing loans from the Loan Fund,
Banks shall act only as administrative agencies for the
Department and, if acting within the terms of the agreement with
the Department, shall not incur any financial or environmental
liability associated with loans from the Loan Fund.
History Note: Statutory Authority G.S. 143-215.94P
Eff. December 1, 1992
15A NCAC 1K
6
December 1, 1992
-------
.0302 LOAN PROCESSING BY BANKS
(a) Banks shall utilize any rules adopted and established by
the Department. These rules will complement generally accepted
standards prevailing among banks and relating to commercial
loans.
(b) Banks shall receive and process loan applications.
(c) Banks shall gather and process all necessary documents.
(d) Banks shall receive monthly payments from borrowers,
maintain records, and deposit payment amounts daily to a
designated account of the State Treasurer after deduction of
fees.
(e) Banks shall maintain all original loan documents until the
loan is satisfied.
(f) The Bank shall forward one copy of each of the following
documents to the Coordinator:
(1) the Loan Application;
(2) the Bank letter explaining the reasons for denial;
(3) financial statements;
(4) credit report;
(5) scope of work and binding cost estimate;
(6) originating Bank's letter of certification; and
(7) site assessment report, if applicable, and if other
real property is used as collateral, the borrower's
certification and other evidence satisfactory to the
Bank that the property conforms with the applicable
Rules of this Subchapter.
(g) The Bank shall make a monthly report to the Coordinator of
each delinquent loan.
(h) Each Bank shall make all Loan Fund files available to
audit and review by the Coordinator, the Department, the
Petroleum Underground Storage Tank Funds Council, or other
authorized persons or agencies.
(i) The Bank shall notify the Borrower of the approval or
denial of the loan application.
History Note: Statutory Authority G.S. 143-215.94P
Eff. December 1, 1992
15A NCAC IK
7
December 1, 1992
-------
.0303 DUTIES OF THE LOAN FUND COORDINATOR
(a) The Coordinator shall be responsible for coordinating Bank
and Department activities relative to all loans under the Loan
Fund.
(b) The Coordinator shall be responsible for determining the
following:
(1) whether all required annual operating fees have been
paid;
(2) whether the application exceeds allowable amounts for
funding pursuant to Paragraphs (c), (d), and (e) of
Rule .0102 of this Subchapter.
(3) whether there are sufficient funds available in the
Loan Fund; and
(4) whether the application has been completed in
accordance with this Subchapter.
(c) If the Coordinator finds that the loan cannot be funded,
he shall notify the Bank of the reasons that the loan cannot be
funded.
(d) The Coordinator shall keep copies of all completed loan
documents.
(e) The Coordinator shall make a quarterly report to the
Department and the Petroleum Underground Storage Tank Funds
Council indicating the following:
(1) The number and amount of loan commitments;
(2) Available funds to be lent;
(3) Amount lent to each borrower;
(4) Amount lent by each bank; and
(5) The following information for each loan:
(A) Name of Borrower;
(B) Originating Bank;
(C) Amount of Loan;
(D) Whether loan is for upgrade or for replacement;
and
(E) Status of loan.
(f) The Coordinator shall make the Loan Fund files available
to audit and review by the Department, the Petroleum Underground
Storage Tank Funds Council, or other authorized persons or
agencies.
History Note: Statutory Authority G.S. 143-215.940(g);
143-215.94P
Eff. December 1, 1992
15A NCAC 1K
8
December 1, 1992
-------
.0304 LOAN APPROVAL CRITERIA
(a) Before a loan may be funded, all supporting materials must
have been received and reviewed by the Bank administering the
loan.
(b) Eligibility for the loan shall be determined in accordance
with Rules .0102 and .0201 of this Subchapter.
(c) If real estate where commercial petroleum underground
storage tanks are located is to be used as collateral, the site
assessment must show that no serious contamination exists. Other
real estate may only be used as collateral considering all
generally accepted prevailing standards commonly used by banks,
including those for environmental compliance.
(d) Banks shall approve or disapprove loans from the Loan Fund
based on generally accepted commercial bank loan standards
including those for considering the appraised value of any real
estate used for collateral.
History Note: Statutory Authority G.S. 143-215.94P
Eff. December 1, 1992
15A NCAC IK
9
December 1, 1992
-------
.0305 DELINQUENT ACCOUNTS
(a) For a loan made in accordance with this Subchapter, a loan
is delinquent when the payment is over 30 days in arrears.
(b) Banks shall place one telephone call and send one
certified letter to any borrower whose account is delinquent.
(c) If a loan account remains delinquent, Banks shall forward
notice of the delinquent account to the Loan Coordinator 30 days
after the placing of the telephone call or the mailing of the
certified letter.
History Note: Statutory Authority G.S. 143-215.94P
Eff. December 1, 1992
15A NCAC 1K
10
December 1, 1992
-------
.0400 LOAN CONDITIONS
.0401 LOAN ADMINISTRATION FEES AND COSTS
(a) All fees and administrative costs associated with
processing and servicing a loan shall be paid by the borrower.
(b) The borrower shall pay to the Bank at the time the loan
application is submitted, fees for a credit report and for an
appraisal if real property must be used for collateral. Fees for
title insurance, recording, and other closing costs shall be paid
by the borrower as applicable.
(c) A loan origination fee equal to the greater of seven
hundred fifty dollars ($750.00) or one percent of the loan amount
shall be paid to the Bank by the borrower upon approval of the
loan.
(d) A loan servicing fee equal to the greater of fifty dollars
($50.00) or one-twelfth of one percent per month of the
outstanding loan balance may be retained by the Bank from each
monthly payment.
(e) The interest on loans that is received by the Department
may be used to pay coordination costs of the Loan Fund.
History Note: Statutory Authority G.S. 143-215.94P
Eff. December 1, 1992
15A NCAC 1K
December 1, 1992
-------
.0402 INTEREST AND TERM
(a) All loans made in accordance with this Subchapter shall
use a variable interest rate. The interest rate shall be the New
York Prime Rate, as reported in the Wall Street Journal, plus
three percent. This rate includes the loan fees specified in
Paragraphs (d) and (e) of Rule .0401 of this Subchapter.
(b) The term of each loan shall not exceed 120 months.
History Note: Statutory Authority G.S. 143-215.94P
Eff. December 1, 1992
15A NCAC IK
12
December 1, 1992
-------
.0403 ADDITIONAL CONDITIONS
(a) Loans made in accordance with this Subchapter may be for
the full amount or any part of the cost of the upgrade or
replacement.
(b) Based on borrower's financial ability and in accordance
with generally accepted banking standards, personal guaranties
may be required from borrower, spouse, and other owners of the
borrower's business.
(c) Based on borrower's financial ability and in accordance
with generally accepted banking standards, sufficient collateral
to secure the loan may be required.
(d) Any subsequent owner of the business or commercial
petroleum underground storage tanks, may apply to assume the
outstanding loan. A bank may authorize an assumption by a
subsequent owner only in accordance with generally accepted
prevailing standards commonly used by banks for assumptions of
commercial loans.
History Note: Statutory Authority G.S. 143-215.94P
Eff. December 1, 1992
15A NCAC IK
13
December 1, 1992
-------
.0404 FUNDING OF LOAN
(a) Following approval of the loan, loan checks will be made
payable to the borrower and the contractors) performing the work
after the following is provided to the Bank:
(1) A completed copy of "Notification For All Underground
Storage Tanks (New A Upgraded)" (Form GW/UST-8) stating
all work was completed in accordance with technical
requirements of 15A NCAC 2N. This form is available
from the Department; and
(2) Copies of itemized invoices.
(b) Loan commitments shall be made for periods up to six
months.
History Note: Statutory Authority G.S. 143-21 5.94P;
143-215.94T
Eff. December 1, 1992
15A NCAC 1K
14
December 1, 1992
-------
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Tttle 44, Chapter 2, with revisions from 1992 Appropriations Act,
Section 43
CHAPTER 2
State Underground Petroleum Environmental
Response Bank Act
Sec.
44-2-10. Short title.
44-2-20. Definitions
44-2-40. Superb Account created; purposes arid user of
account.
44-2-50. Regulations to be promulgated; cost ol rehabilitation.
44-2-60. Registration of underground storage tanks;
environmental Impact fee. 44 2-70. Financial
responsibility ol underground storage tank owners
44-2-75. Insurance pools.
44-2-80. Release of regulated substance; containment,
removal, and abatement.
44-2-90. Accrued Interest; residual fund; reduction of
registration lee.
44-2-110. Early detection incentive program.
44-2-120. Use of contractors, subcontractors, and employees
lor rehabilitation or cleanup.
44-2-130. Reimbursement from Superb Account; notice of site
rehabilitation; records required; notice of completion.
44-2-140. Enlorcement of chapter; penalties for violations.
S 44-2-10. Short title.
This chapter is known and may be cited as the State
Underground Petroleum Environmental Response Bank Act of 198B.
HISTORY: 1988 Act No. 486, § 2, eft May 2, 1988.
printed on tecycled pa pet
§ 44-2-20.
Definitions
When used in this chapter, the listed terms have the lollowing
meanings unless the context clearfy requires otheiwise:
(1) •Department" means the Department of Health and
Environmental Control.
(2) ^Direct ''BiljingV. means billing Superb Account
directly lor dosis associated;&j^:;site.jeHattiiT' " '
after receiving prior; approval from the
and in accordance whh criteria
department as authorized byJtHls chipteK
(3) 'Fund' means the funds provided for under this
chapter and deposited in the Superb Account orthe
Superb Financial Ras|»nsiblllty Fund hereinafter
created.
(4) 'Operator means any person operating—an
underground—storage tank—whether—by—lease,
contract, or-other town of agreement iriooatitJjOft Of
paving :Tes|>pn^}I^ii^^ha ds^ty operatic ari
(5) Orphan Sfte*m«ymiij;She where thef# has been a
felease from an unHerground storage tank, btlj
responsible party; Issues, have, not b^resolvedi
and site rehabilftabop has not been undertaken.
(6) 'Owner means any person owning an underground
storage tank : (aj Jri (He case of an underground
storage tank system in use on November 984. or
brought into use after that dale, any person who
owns an underground storage tank system used for
storage, we# or,dispensing of regUl^dsi&tan^
(b) in the Case of knyundergroUT^
system in use before November ti, 4984, bui ntj
longer in Use on that date, any perstHi who owned
such an: underground ; storage tank immediate)!
before the idiscontinuation fts use; ot(c) any
undenr-® "'
-------
a contract of sale or other legally binding transfer of
ownership.
(7) 'Person* means art/ individual, partner, corporation
organized or united for a business purpose, or a
governmental agency.
(8) 'Petroleum' and 'petroleum product* means
petroleum, including crude oil or any taction thereof,
which is liquid at standard conditions of temperature
and pressure (sixty degrees Fahrenheit and 14.7
pounds per square inch absolute), i including any
such Tiquid which consistsofa Wendoffbetrdleum
aricf alcohol and which is intended for use as a
motpr 'petroleum' -and ^petrpteuin
product* do not jriciude:
(a) any hazardous substance as defined in
section * 101 (14) of The Federal
Comprehensive sjEn^ronmehtalf Response;
Compensation, and Liability Act of J 980
(CEFjCLA);
{b) any substance, o|h«r than used oils,
regulated ;as' a Hazardous waste wider
Subtitle"p o| Title l| of "federal Resource
Conservation arid Recbvery: Act Of 1976
(RCRA); or
any mixture of petroleum or a petroteMfn
product ? containing ^a^ Hsbch^ hazat^oiu
substance ot fiazardous wastie^n greater
than de i^nimte quahtftlw.
(9) 'Regulated substance' means:
(a) any substance defined in Section 101(14) of
tho Federal Comprehensive Environmental
Response, Compensation, and Liability Act
of 1980 CERCUA, but not including any
substance regulated as a hazardous waste
under Subtitle C mereoM>rPjCRA ; and
(b) petroleum and petroleum products.
m-
m-
hydrocarbons derived ? jrp^ cr^e : oi| through
processes of separation. i»irwreton.:iJpgr«f% ami
finishing, such asmotor
oils, residual juej oils, lubricants;ifMtir0|eLnTi-:8^rM^
and used oi|& '
fRelmbursernent" means providing funds frorn the
Supeh? - Account i for
have been prevlw^^jwicted'ati site. Costs' are
documented and sutin^dltol
accordance with criteria- ' «stab£$hed '-'tif^the
depaitmem such1 that suff^^^pponHigt^ni^
wid" liniahcJiif ^: ir^omn^Uoinr^ls^ piwfdwI^clrHthe
department to |usttf^' payment.
^Response action' means activity, including—tea
evaluation.—planning,—design,—engineering,
construction, or other services which are carried out
in response to any discharge, reloase, or threatened
release of petroleum or petroleum products from an
underground storage tank.
^Response action contractor means any person who
is carrying out a response action, including a person
retained or hired by these persons to provide
services relating to a response action.
'Release' means any spilling, leaking, emitting,
discharging, escaping, leaching, or disposing from
an underground storage tank into ground water,
surface water, or subsurface soils gub^^e;|idlfetj
-JiaMf^orsiirfacfii^Mff,
^ite rehatrilit^ionl means ^anup aqions taken in
response to a release from m
tankwhich includes,butjs^firtih< • !nvest||i|t^
• planning,M&r^gn. engineering,
construcuuii,or
brcleanuipaflected
pir stirtabe waft<»rL?'
(11)
-------
'Underground storage tank' means any one or
combination of tanks, including underground pipes
connected thereto, which is used to contain an
accumulation of regulated substance, and the
volume of which, Including the volume of the
underground pipes connected thereto, is ten percent
or more beneath the surface of the ground. The term
does not include any:
(a) farm or residential tank of one thousand one
hundred 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 line,
regulated under the Federal Natural Gas
Pipeline Safety Act of 1968, or the Federal
Hazardous Uquid Pipeline Safety Act of
1979, —A pipeline facility which i6 an
intrastate pipeline facility regulated under
state—laws comparable—to—the—above
provisions of law referred to in this subitem
is also not Includod within the definition of
an underground storage tank or any pipeline
facility regulated Under state laws
bomparabls to the provisions of these
federal provisions of Jaw;
(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;
(i) storage tank situated in an underground
area, such as a basement, cellar,
mineworking, drift, shaft, or tunnel, if the
petroleum storage tank is situated upon or
above the surface of the floor;
0) hydraulic lift reservoirs, such as for
automobile hoists and elevators, containing
hydraulic oil; or
(k) any pipe connected to any tank which is
described in subitems (a) through ©.
HISTORY: 1988 Act No. 486, § 2, eff May 2, 1988.
§ 44-2-40. Superb Account created; purposes and uses of
account.
(A) There is created within the state treasury a-two
separate and distinct accounts to be called the 'Superb Account' to
bo administered by the departmont and expended by the department
for purposes of this chapter arid thfe
Fund.4 The, Superb Account,, must bfe;|
Department of Health and Bivitpnroen^Ck^^
financial Respor^biltty;Fi^;roU&b&^ ^
arkj Control jfloard. BotH'acc^ls^nwIsiBe
pdrposesof this: chapter
(B) The Superb Account is established to ensure the
availability of funds for the rehabilitation of sites contaminated with
petroleum or petroleum products released from an underground
storage tank and for the administration of the underground storage
tank regulatory program established in this chapter. Site
rehabilitation includes cleanup of affected coll, groundwater, and
surface waters. !TT»e department shall use ihe fund to pay the u&ual,
custonutry, avid reasonable exists dl sle retkUllttttbH if| extendi
j^elrity-iiv© ttioiisand dollars and up tfcua Iwaxfamkxi .cl^ohflLloBllon
Un jjer>Qccwrenc&fof reheMtetbri bA
discha/pa Irani an underground storagQ tan* ccnidrting p^roleum
or petroleum products. The department shaii use the fund to pay the
costs ol site rehabilitation by owners or operators who qualify for
reimbursement or direct billing ^irecl fallThe
department may use the fund to clean lip any site which does not
qualify for reimbursement or direct billing
-------
reimbursement or any sue which does qualify but the owner or
operator is unwilling or unable to undenake site rehabilitation, and
the department shall diligently pursue the recovery ol any sum so
incurred trom the uwner or operator responsible or Irom tne United
States government under any applicable federal I.', unless the
department finds the amount involved too small or tli. likelihood ot
success too uncertain. The fund i..,isi be further used tor the
payment of any reasonable costs incurred by the department in
providing field and laboratory services and other assistance by the
department in the investigation ol alleged contamination. This fund
must not be used for the cleanup of any other pollutant or by any
other department in the State. Funds in the Superb Account also
may not be used to pay any liability claims against the owners or
operators ol the underground storage tanks but ma* bo-used only
for th6 purpo6b of cleaning up releases from the tank or the
rehabilitation of any contaminated 6ite.
(C) The Superb Account must be used by the
department for carrying out the purposes ot this chapter. The fund
must be credited with all fees, charges, and judgments allowable
under this chapter. Charges against the Superb Account may be
made only in accordance with the provisions of this chapter. OritJuly
1,1092, the department shall transfer |rom the Superb Account Into
the Sup^ Finanaaj Responsibility Fund tji& amount in thi $iijpefb
Account exceeding fifteen million dollars but (n no eveni shall the
amount traiUufred exceed - three ir" ive hundred^thousand
dojlars, for the period July i1092. » ie 30,1993, at any time
ihe balance of the Superb Account exceeds fifteen million dollars, the
one-half cent a gallon environmental impact fee imposed in Section
44-2-60(B) is suspended until that timo the baUns<*-c4-ttw-Supefb
Account bocomoi- less than live million dollars must be credited to
the general fund of the state until f ^ time Ipe balance of the Supfcfb
Account becomes : thian: ilye?^jnipp iMpllorsM J Beginrjip9 ^uiyj h,
^993^. tfithe comit^rwd t^aiarice Sgperb Account apd Superb
Fin^ciaV Responsibility FuhH rMchWs the sum of eighteen and pinie^
half million dollars, the de, >e; ull transfer the funds giBneiraied
£y [tjie bri^alf centagaliori enyirpnmr, ::/.i impacf fee imposed in
Setti6nT4te^0(Bj; to^^ dep^)t|ir) jl^Geiwral
puna one jtundred dollar f^oistratlbn^fee vnay i be i used
pej^nftwrnfortteadministration^
storage tank regulatory program established by thjs chapter. The
amount used for administration of the program may notexceed tfrrde
million dollars a year. The department ic responsible for notifying the
Dopanmont ol Agricuttuie when these, amounts have been reached.
The suspension of the environmental impact tee occurs at the end of
the month in which the Department of Agriculture is notified by the
department. The lifting of the suspension occurs on the firet day of
the month following the month in which the Department of Agriculture
is notified by the department. No more than fifty dollars of the one
hundred dollar registration fee may be used by the department for
the administration ot- the underground petroleum storage tank
regulatory program established by this chapter. The amount used
for administration oi the program may not exceed ono million two
hundred thousand dollars a year,
pfomulgatftd-horeunder supersede and take precedence over any
regulation u a governmental agency or department to tho contrary.
The Superb Financial Responsibility Fund and must be used for
cpmperisatiiig third parties for bodily inju^ and ipropbrty: damages
caused by accidental releases aritfng'from Ifhebperatfoniof
underground storage tanKs containing* petroleum , or petroleum
products. The fund shall provide compensation In wa^ol twenty
five thousand dollars arid Up to a maximum ofonfimiffion dollars per
occurrence; exclusive oTiega^delense costs The 0urfgei"and
Control Boaid shall make payment to any third >paity who IwSi
brought In the appropriate court a legal action against the owner of
a regtiia^'undBrgrpund aofage tanl: and Who ¦tii&be$n awarded
the fi^ jifogement iriiteadidnthai is valid rind erd6rceable;in this
State.
HISTOR. iBB Act No. 486, £ 2. eff May 2, 1868; 1989 Act No.
198, Part II, & 40A, eff with re . d to Initial registrations and
annual renewals occurring aftei June 30, 1389 (became law
without the Govemor'6 signature on June 8,1989); 1990 Act No.
473, § 1, eff May 9, 1990; 1991 Act No. 171, Part II, ( 18A, eff July
1, 1991.
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S 44-2-60. Regulations to be promulgated; coat of
rehabilitation.
(A) The department shall promulgate regulations relating
to permitting, release detection, prevention, and correction applicable
to all owners and operators of underground storage tanks as may be
necessary to protect human health and the environment. The
department in these regulations may distinguish between types and
classes of underground storage tanks. The regulations promulgated
pursuant to this section shall include the following requirements lor
underground storage tanks:
(1) requirements for submitting a permit application and
obtaining permits prior to the installation and
operation of an underground storage tanl;;
(2) requirements for maintaining a leak detection
system, an inventory control system together with
tank testing, or a comparable system or method
designed to identity releases in a manner consistent
with the protection of human health and the
environment;
(3) requirements for maintaining records of any
monitoring or leak detection system or inventory
control system or tank testing or comparable system;
(4) requirements for reporting of releases and corrective
action taken in response to a release from an
underground storage tank;
(5) requirements for taking corrective action in response
to a release from an underground storage tank; and
(6) requirements for the closure of tanks to prevent
future releases of regulated substances into the
environment.
(B) The department shall keep an accurate record of
costs and expenses Incurred under the provisions of this chapter for
the rehabilitation of sites contaminated with petroleum or petroleum
products released from underground storage tanks and to make this
record public on a quarterly basis, and, except as otherwise provided
in Section 44-2-110, the department thereafter shall diligently pursue
the recovery of any sum so incurred from the person responsible or
from the United States government under any applicable federal law,
urless the department finds the amount involved too small or the
likelihood of success too uncertain. The department shall also
establish criteria tor the rehabilitation ol any site contaminated with
petroleum or petroleum products released from an underground
storage tank, the criteria and documentation necessary for an
application for direct billing of site rehabilitation costs to the Superb
Account, and general procedures that response action contractors
must follow during cleanup.
(C) For purposes of enforcing this chapter and any
regulations promulgated pursuant thereto, any representative or
employee of the department is authorized:
(1) to enter at reasonable times any establishment or
other place where an underground storage tank is
located;
(2) to inspect and obtain samples of any regulated
substance contained in the tank; and
(3) to copy any records, reports, information, or test
results relating to the purpose of this chapter.
HISTORY: 19BB Act No. 486, S 2, eft May 2, 1988.
$ 44-2-60. Registration of underground storage tanks;
environmental Impact fee.
(A) Any person who owns The owner or operator Qt an
underground storage tank which stores or & lo Itpire
petroleum or petroleum products shall register the tank with the
department. The owner or operator of the tank shall display a
registration certificate listing all registered tanks at a facility and in
plain view in the office or the kiosk of the facility where the tanks are
registered. ^pqnappliMUon tor airegistf^on^
or oper^pr shall pay Jo ttodepaitn^^ initial ^ot
oiiS;hundred;doliarsa; tank and Sit,
hundred dollars a tank a year. The funds geherdted. by< ,th«
registration fee may be used by the department 1or adkriN$^atjk&::p|
the provision sof the this, chapter and lor, admWstrtkkw >
underground storage tarikiBgulaioty;^
-------
chapter. The amount used lor administration may not exceed three
million dollars a year.
(B) Upon—application- lor—a—registration—sticker or
certificate ac doscribed in subsection (A) above, the owner shall
pay to the dopartmont an initial registration tee in the amount of one
hundred dollars a tank and an annual renewal tee of one hundrod
dollars a tank a year. In addition to the inspection lee of one-fourth
cent a gallon imposed pursuant to Section 3y-* 1-120, an
environmental impact fee ol one-hall cent a gallon is imposed which
must be Used by the departing (or the purposes of carrying gut the
provisions of this chapter deposited in the Superb Account and used
tor its purposes. This one-hall cent a gallon environmental impact
fee must be paid and collected in the same manner that the one-
fourth cent a gallon inspection fee is paid and collected except that
the monies generated from these environmental impact fees must be
transmitted by the Department of Agriculture to the Depanment of
Health and Environmental Control for deposit in the Superb Account
which shall deposit the fees a? provided for jn Section 44-2-40.
HISTORY: 198B Act No. 486, 5 2, etf May 2, 1988; 1989 Act No.
189, Part II, § 40B, eft June 8, 1989. with respect to Initial
registrations and annual renewals occurring after June 30,1989
(became law without the Governor's signature on June 6,1969);
1990 Act No. 473, $ 2, amendment of subsection (A) eff May 9,
1990, and amendment of &ubsectlon (B) eff June 1, 1990.
§ 44-2-70. Financial responsibility of underground storage
tank owners.
(A) No later than January 1. 1990, or after the federal
government mandates financial responsibility lor underground
storage tank owners or operators, whichever date is later, a parson
who owns the owner br operator Ol en underground stoiage tank
containing petroleum or petroleum products shall maintain financial
responsibility in the lesser ^nouii} of that required by the federal
government or in the amouni of twenty-five thousand dollars (or
corre action or cleanup of releases and twenty-five thousand
dollars for third party property damage and twenty-five thousand
dollars lor third party bodily injury an occurrence with an annual
aggregate ol twenty-five thousand dollars. Financial responsibility
requirements may be maintained tnrough insurrn • guarantee,
surety bond, letter of credit, sell-insurance, risk retention group, or
any other method satisfactory to the department. No insurance
policy, guarantee, surety bond, or any other financial responsibility
mechanism which is executed to provide this or additional amounts
ol coverage shall contain any terms, endorsements, conditions,
provisions, oi other language that requires expenditure of funds from
the Superb Account or the Superb Financial\|^esfx>n8ibiiity;;||rUnd
prior to or in lieu ot payment by the mechanism^! and^rto ;&ubh
financial responsibility mechanism whlcsi itias ; preykujslybeeri
executed shall operaterso as to require theexperwiiturebf funds from
the Superb Account or the Supeib Financial Responsibility Fund until
hinds provided by the financial responsibility-ntecHarisrrf have been
exhausted. The owner or operator shall demonstrate evidence of
financial responsibility to ihe depanment.
(B) The depanment shall promulgate regulations
specifying requirements tor maintaining evidence ot financial
responsibility, consistent with the provisions of this chapter, for taking
corrective action and compensating third parties for bodily injury and
property damage caused by sudden and nonsudden accidental
releases arising from operating an underground storage tank. The
Superb Account funds established in Sect^f44-^2p, for purposes
of these regulations, i6 an aire acceptable mechanisms for
maintaining this financial responsibility by owners and operators of
underground storage tanks.
(C) The fund established in Section 44 -2-40{A). combined
with the financial responsibility required by this chapter, may be used
by owners and: operators of underground storage tanks to
demonstrate their compliance with any financial responsibility
requirements promulgated under federal regulations.
HISTORY: 1988 Act No. 486, § 2, eff May 2, 1988; 1990 Act No.
473, S3, eff May 9, 1990.
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disposition or any legal contest with respect to
liability therefor, or
(7) has been found insolvent by a court of any other
state, or by the insurance commissioner or other
propt. officer or agency of any other state, and has
been prohibited from doing business in that state.
HISTORY: 1988 Act No. 486, $ 2, eff May 2, 1988.
§ 44-2-80. Release of regulated substance; containment,
removal, and abatement.
Any person who releases a regulated substance from an
underground storage tank shall immediately undertake to contain,
remove, and abate the release to the satisfaction of the department.
However, the undertaking to contain, remove, or abate a release
must not be considered an admission of responsibility lor the release
by the person taking the action. Notwithstanding this requirement,
the department may undertake the removal of the release and may
contract and retain agents who shall operate under the discretion of
the department if a responsible party is unwilling or unable to
conduct the cleanup.
HISTOHY: 1988 Act No. 486, S 2, eff May 2, 1988.
S 44-^-dO. Accrued Interest; residual fund; reduction ot
registration fee.
(A) Any interest accruing on the Superb Account and the
pugeit>: Fi^ancjal Responsibility; Ptincj must be credited only-to gabji
ir^pectfve the Superb Account.
(B) The fees described in Section 4<\ 2 tiO(B) mu6t be
paid by the owner of the underground petroleum tank until December
31,1988. Any funds remaining in the Superb Account a!: ;<«-date
must be dedicated to a fund to be administered by the tment
for the purpose of cleaning up 'orphan* sites, defined . -sites
which demand a cleanup but where liability has not bet»n cannot
be clearly established. The environmental impact feeestablished in
sectjon 44r2-6Q(B) is abojishe^ thai
^envirpnrnenial I Impact fms for the mont)i^ Pt|caiTtfJ^^89B;
must N;piaid^^^nic| :pf
Si^rb Account af^this?dat&i& long
jo pay t|ie oosts ol slte rehabittartoh by owjw^
were incurred before
rehabilitation at orphan sttes^
(C) After December 31. 1996, the registration lee is
reduced to fifty dollars a year a tank and must be used by the
department for the administration of the underground petroleum tank
regulatory program established in this chapter. The environmental
impact fee of one-half cent per gallon on December 31, 1998, is
abolished, provided that the environmental impact fees due for the
month of December, 1998, must be paid by the end of January,
1999.
HISTORY: 1988 Act No. 486, S 2, eff May 2, 1988; 1990 Act No.
473, $ 4, eff May 9,1990; 1991 Act No. 171, Part II, S18B, eff July
1,1991.
i 44-2-110. Early detection Incentive program.
To encourage early detection, reporting, and cleanup of
releases from leaking underground petroleum storage tanks, the
department, within the guidelines established in this section, shall
conduct an earty detection incentive program which provides for a
general grace period beginning on Januaty 1, 1988, and ending on
December 31 r4004-jiine 30,1993. Pursuant thereto, the depanment
shall est; n reasonable requirements for the written reporting of
petroleum releases and distribute the forms to all persons registering
tanks under this chapter and to all other interested parties upon
request to be used for the purpose ol reporting petroleum releases.
Until the forms are available for distribution, the depanment shall
make iL'pnns of these releases however made but shall notify any
person making a report that a written report of the release will be
required by the department at a later time, the form for which will be
provided by the department. All sites involving releases from
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$ 44-2-75.
Insurance pools.
(A) Any person who owns an underground storage tank
containing petroleum or petroleum products who is unable to
demonstrate financial responsibility in the minimum amounts
specilied in Section 44-2-70(A) may establish an insurance pool in
order to demonstrate this financial responsibility. The pool may
purchase insurance or reinsurance on a group or individual basis,
self-insure its members, or form, or join a purchasing group as
defined in Section 38-87-20(10). Any contract establishing an
insurance pool shall provide for:
(1) the election by pool members ol a governing
authority for the pool, which may be a board of
directors, a majority of whom must be elected or
appointed officials of pool members;
(2) a financial plan setting forth in general terms:
(a) the insurance coverages to be offered by the
insurance pool, applicable deductible levels,
and the minimum levels of claims which the
pool will self-insure;
(b) the amount of cash reserves to be set aside
for the payment of claims;
(c) the amount of insurance to be purchased by
the pool to provide coverage over and above
the claims which are not to be satisfied
directly from the pool's resources; and
(d) the amount, If any, of aggregate excess
insurance coverage to be purchased and
maintained in the event that the insurance
pool's resources are exhausted in a given
financial period;
(3) a plan of management which provides (or the
following:
(a) the means of establishing the governing
authority of the pool;
(b) the responsibility of the governing authority
for fixing contributions to the pool,
maintaining reserves, levying and collecting
assessments for deficiencies, disposing of
surpluses, and administration of the pool in
the event of termination or insolvency;
(c) the basis upon which new members may be
admitted to, and existing members may
leave, the pool;
(d) the identification of funds and reserves by
exposure areas; and
(e) those other provisions as are necessary or
desirable for the operation of the pool.
(B) The formation and operation of an insurance pool
under this section is subject to approval by the Chief Insurance
Commissioner who may, after notice and hearing, establish
reasonable requirements by regulation for the approval and
monitoring of these pools, including prior approval of pool
administrators and provisions for periodic examinations of financial
condition.
(C) The Chief Insurance Commissioner may disapprove
an application for the formation of an insurance pool and may
suspend or withdraw approval whenever he finds that the applicant
or pool:
(1) has refused to submit Its books, papers, accounts,
or affairs to the reasonable Inspection of the
commissioner or his representative;
(2) has refused, or its oflicers or agents have refused, to
furnish satisfactory evidence of its financial and
business standing or solvency;
(3) is solvent or is in such condition that Its further
transaction of business in this State is hazardous
to its members and creditors in this State, and to the
public;
(4) has refused or neglected to pay a valid final
judgment against it within sixty days after its
rendition;
(5) has violated any law of this State or has violated or
exceeded the powers granted by its members;
(6) has tailed to pay any fees, taxes, or charges
imposed in this State within sixty days after they are
due and payable, or within sixty days after final
-------
subsequent to the grace period and so long as funds are available
in the Superb Account, the person an owner or operator or fiisagerit
is eligible to directly bill or be reimbursed for usual; customary. and
reasonable costs incurred for corrective action of cleanup site
^eha^jitatiof), in excess of twenty-five thousand dollars or in excess
of the amount recoverable from the financial responsibility
mechanism provided for this purpose, whichever is less. If a liability
insurance policy or any other financial responsibility mechanism
which provides for sudden or nonsudden release of petroleum or
petroleum products form an underground storage tank has been
executed for a site at which reimbursement or direct billing or
reimbursement trom the Superb account is sought, no funds may be
expended from the Superb Account until the funds provided by the
financial responsibility mechanism have been exhausted.
(B) Notwithstanding subsection (A), no person owner or
operator or his agent is entitled to directly bill more than one million
dollars to the Superb Account or be reimbursed more than one
million dollars from the Superb Account for costs incurred in
connection with site rehabilitation at any one site
(C)(1) [Dolotod)
—No pefeen-owner of operator or his agent is entitled
to direct billing tie^or reimbursement from the Superb
Account for site rehabilitation unless rehabilitation is
conducted in accordance with cleanup criteria
established by the department.
(2) No pef«er^i^er'or operaiqr {lis aye*. , entitled
to direct billing fcw>r reimbursement from the Superb
Account for the costs or repair or replacement of any
tank or equipment.
(D)(1) The provision of this section do not apply to any site
where the underground storage tanks have not been
registered in compliance with provisions of
applicable law or regulations.
(2) The provisions ol this section do not apply to any
site where the owner pjr operator has not paid the
registration fee required by Section 44-2-60(B)[A).
{£)(£) Direct billing to or reimbursement from the Superb
Account by a person aniipffiBron
agent conducting site rehabilitation either-through his
own personnel or through response—action
contractors or subcontractors is not conspired a
state contract forpiig^pses;.!^p:i^rP!Wronterit or
subject to state bid requirements.
(F)(1) Any owner or operator of an underground petroleum
storage tank seeking ^flfoi^jjcjr direct
billing to or reimburses Tit from the Superb Account
for.; ^|eV:submit a written
application to ihe department together with 6ufficiont
demonstration of cite conditions prior to initiation of
cleanup. The wftten applt^ion ^tus| be on^ fornl
specified py the department ^include certification
that site rehabilitation is ned&&ty :1te$9ik8 at ihe
site have been registered Sin- : Dual
determination
notice to the; applicant4>ol'&S, findings ^including
Retailed reasons for any deppaL'- Unless the
fjepartment provideswithii>nlnetyd!iy$ofreceiptof
a complete appfication; written approvahor denial of
the ai^iicatlon It must be considered 3teitied< Any
genial of an application must ft^fypealab&to the
Board ifi Health ?and : ErwMohi^|t^ Contn^
department' is iw&nipt" fromithlJ tn^me rfor
appncaiiprjs sare received Jwfthlr] fnonths
of the dose of thti grace; petlpdiallowftd |n Sectlort
44^-116- '
(2) The person owflgr :pf ppefatoj responsible for
conducting the site rehabilitation or his agents shad
keep and preserve suitable records of hydrological
-------
underground storage tanks reported to the department any time from
midnight on December 31,1987, to midnight on December 31,1091
June3D,1993, regardless of whether the release occurred before or
after January 1,1988, are qualified sites for the expenditure of funds
from the Superb Account, provided that a written report is filed with
respect thereto. Any funds so expended must be absorbed at the
expense of the Superb Account, as available, without recourse to
reimbursement or recovery, subject to the following exceptions:
(1) The provisions of this section do not apply to any
site where the department has initiated an
administrative or civil enforcement action prior to
December 31, 1987.
(2) The provisions of this section do not apply to any
site where the department has been denied site
access to implement the provisions of this chapter.
(3) The provisions of this section must not be construed
to authorize or require direct billing to or
reimbursement from the Superb Account for any
costs expended at a site which was either reported
to the department or where rehabilitation
commenced prior to befprfe December 31,1987.
(4) The provisions of this section must not be construed
to authorize or require direct billing to or
reimbursement from the Superb Account lor costs
incurred at any site reported to the department
between January 1, 1990. and July 1, 1991, unless
the costs are in excess of the minimum financial
responsibility required of the owner under the
applicable provisions of section 44-2-70 (A) which
was in effect at the time the site was reported.
HISTORY: 19B8 Act No. 486, § 2, eff May 2, 1988; 1990 Act No.
473, § 6, eff May 9,1990:1991 Act No. 171, Part II, 5 18C, eff July
1,1991.
S 44-2-120. Use of contractors, subcontractors, and employees
for rehabilitation or cleanup.
Nothing in this chapter may be construed to prohibit a
person an owner pihi J pin Gtiq^giei|^ from
conducting site rehabilitation or cieanup through contractors,
subcontractors, or qualified personnel employed by them person.
However,; ttie; department may prc^bit (ronl jmrticfcatirjfj
rehabilitation tinder this chapter aliy cefaclor or subcontract
(a) is not a .South GaroSna registered ,prpjN&8ionaj
geologists firiy&eef, or is r^ bonded oMnsureaibr
the full cbsts trt ^d ieHa^)td;ldn;
(b) has had iaclnriinlstraUvd; or orcemcott ^qlion
undertheprovls^or^Wihb^apteriakfeH^linlt
him wjthln;the last three years;
(c) has demonstrated repealed noncompliance with
criteria Iqrdjrect billinfi
by the department under Section 44-2^(6); or
rel^biiitatidri!
standards
HISTORY: 1988 Act No. 486, S 2, eff May 2, 1988.
S 44-2-130. Reimbursement from Superb Account; notice of
site rehabilitation; records required notice of completion.
(A) To encourage voluntary rehabilitation, a person
conducting cite rehabilitation under Section 44 2 110, which dofine6
the early detection incentive program, either through hie own
personnel or through re6ponso action contractors or subcontractors
An owner or operator of ail uhdei^rotmdhfi .•09$$
who conducts rehabilitation for a jbite ditfngihlj
gr^ce period of the ^rog^vti; is entitled to
directly bill the Superb Account or be reimbursed from the Superb
Account for all usual, customary, and reasonable costs incurred;!
except as otherwise provided in Sectiori 10, in connection with
site rehabilitation. For 6ite6 reported during the grace period
established undor the early detection incentive program, the person
is eligible to directly bill or be reimbursed for all reasonable costs
incurred in connection with 6ite rehabilitation,—For sites reported
-------
and other site assessments, site plans, contracts,
accounts, invoices, or other transactions related to
the cleanup and rehabilitation and the records must
be accessible to the department duiing regular
business hours.
(3) Upon receipt ot a complete application tor direct
billing or reimbursement trom the Superb Account tor
cite rehabilitation costs, the department shall mako
those investigations and Inquiries as are nocossary
to enable tho department to approve or deny the
application. Upon final determination tho departmont
shall provide written notice lo the applicant of Its
findings setting forth in detail tho reason tor tho
approval or denial and the amount approved for
direct billing or reimbursement. The department 6hall
make payments from tho Superb Account for any
approved billing or reimbursement—as-funds-are
available.
(H)(1)—Upon cessation ot site rehabilitation, the person
responsible for conducting the 6fte rehabilitation 6hall
submit to the department within thirty days of the
cessation a written notice that site rehabilitation has
boon completed.
—(3)—No later than thirty days alt or submission of the
notice ot completion ot site rehabilitation, the person
responsible tor conducting cite rehabilitation shall
submit to the department evidence ot proper cite
rehabilitation. Costs for the 6ito rehabilitation may be
directly billed to the Superb Account or may be
reimbursed from the Superb Account in the manner
tho department shall providoi except that prior
approval for direct billing or reimbursement must be
obtained from the departmont before any direct
billing or reimbursement may be done.
(I ) Upon receipt of a complete application tor direct
billing . to or reimbursement from tho Superb Account for site
rehabilitation, the department shall make those investigations and
inquiries as are necessary to enable tho departmont to approve or
deny the application. Upon final determination the department 6hall
provide written notice to the applicant of Its findings setting forth -in
detail the reason for the approval or denial and the amount approved
fnr Hirnr-i hilling nr mlmhorrnmnnl Tha
payments from the Superb Account for any approved baling or
relmbursemont ac funds are avallablo.
-------
(H) The provisions of this section do not apply to
rehabilitation ol any site owned or operated by the
federal government.
(!) "Hits se^lonj ifali es e(f ecj July i, 1992-
HISTORY: 1988 Acl No. 486, i 2, eft May 2, 1988; 1990 Act No.
473, is 6, 7-10, eft May 9,1990; 1991 Ad No. 171, Pari II, i 180,
eff July 1,1991.
S 44-2-140. Enforcement of chapter; penalties for violations.
(A) Whenever the department finds that any person is In
violation ol any provision of this chapter or any regulation
promulgated hereunder, the department may issue an order requiring
the person to comply with the provision or regulation or the
department may bring civil action for Injunctive reliel in an
appropriate court of competent jurisdiction.
(B) Any person who violates any provision of this
chapter, any regulation j^mulgaied hereunder, or any order of the
department issued under subsection (A) is subject to a civil penally
not to exceed ten thousand dollars for each tank for each day of
violation.
(C) Any person who wilfully violates any provision of this
chapter, any regulation promulgated hereunder, or any order ol the
department issued under subsection (A) is guilty ol a misdemeanor
and, upon conviction, must be fined not more than twenty-five
thousand dollars per day of violation or imprisoned for not more than
one year or both.
HISTORY: 1988 Act No. 486, fi 2, eff May 2,1988.
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R 61-90
EALTH AND ENVIRONMENTAL CONTROL
CASE NOTES
Regulation 61-90 { 101(A), which prohib-
it* ¦ chiropractic facility from using the
term "hospital," does not create an arbitrary
classification which violates equal protection.
Regulation 61-90 8 101(A) satisfies the
requirements of equal protection because:
(1) the classification of chiropractors is
reasonably related to the legislative purpose
that the public not be deceived in its expec-
tation that a "hospital" is staffed by medical
doctors licensed to perform surgery and
prescribe drugs because chiropractors are
not licensed medical doctors; (2) chiroprac-
tors are treated equally to all other health
care providers who are not trained as medi-
cal doctors because none can maintain a
facility called a "hospital"; and (3) the
classification rests on a reasonable basis
because chiropractors are public health care
providers. The fact that the word "hospital"
is used in other commercial contexts that
are not restricted, such as "doll hospital" or
"animal hospital," and is used by other
specialized medical facilities, such as "Shri-
ner's Hospital for Crippled Children," is
irrelevant; only medical facilities that meet
tHl? statutory definition of a hospital under
S 44-7-130(12) are permitted to designate
themselves as.such, and therefore Regulation
61-90 i 101(A) does not violate equal pro-
tection. Kale v South Carolina Dept. of
Health Sc Environmental Control (1990, SC)
991 SE2d 573.
Regulation 61-90 { 101(A), which prohib-
its a chiropractic facility from using the
term "hospital," is not an unconstitutional
restriction on commercial speech under the
First Amendment. A medical facility must
provide the services of licensed medical
doctors and/or osteopaths to qualify as a
hospital under S 44-7-130(12); although
chiropractors "practice medicine" in a
narrow sense, they are not licensed to
practice medicine or osteopathy as those
professions are statutorily defined in { 40-
47-60, and "chiropractic" as defined in } 40-
9-10(b) specifically excludes the use of drugs
or surgery. The term "chiropractic hospital"
would therefore be deceptive in that such a
facility could not provide surgical or medical
care supervised by licensed medical doctors
or osteopaths contrary to the specific qualifi-
cations of a "hospital." Although a chiro-
practic facility is prohibited from using the
word "hospital," such a facility may be
advertised as a "chiropractic inpatient facil-
ity," which is defined in } 44-7-130(4), and
therefore the restriction on commercial
speech under Regulation 61-90 8 101(A) is a
narrowly tailored one which does not violate
the First Amendment. Kale v South Carolina
Dept. of Health & Environmental Control
(1990, SC) 391 SE2d 573.
61-92. Underground Storage Tank Control Regulations.
Editor's Note—
The following provisions of Regulation 61-92 became effective March 23, 1990, and
replace former 61-92 in its entirety.]
Part 280 Technical Standards and Corrective Action Requirements 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 Systems: Desicn, Construction, Installation,
Notification and Permitting
Sec.
280.20. Performance standards for new UST systems
280.21. Upgrading of existing UST systems
280.22. Notification requirements
280.23. New tanks—Permits required
280.24. Testing
50 For latect statutes or asiitstanm call 1-800477-0430
Health and Environmental Con'
R 61-92
Subpart C. General Operating Requirements
Sec.
280.30. Spill and overfill control
280.31. Operation and maintenance of corrosion protection
280.32. Compatibility
280.33. Repairs allowed
280.34. Reporting and recordkeeping
Subpart D. Release Detection
Sec.
280.40. General requirements for all UST systems
280.41. ^Requirements for petroleum UST systems'
280.42. "Requirements for hazardous'substance UST systems
280.43. Methods of release detection for tanks
280.44. Methods of release detection for piping
280.45. Release detection recordkeeping
Subpart E. Release Reporting, Investigation, and Confirm*
Sec.
280.50. Reporting of suspected releases
280.51. Investigation due to off-site impacts
280.52. Release investigation and confirmation steps
280.53.. Reporting and cleanup of spills and overfills
Subpart F. Release Response and Corrective Action for UST
Systems Containing Petroleum 9R Hazardous Substances
Sec.
280:60. General
280.61. ' 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. Out-of-Service UST Systems and Closure
Sec.
280.70. Temporary closure
280.71. Permanent closure and changes-in-service
280.72. Assessing the site at change-in-owner, closure or change in sei
280.73.. Applicability to previously closed UST systems
280.74. Closure records
Subpart H. Financial Responsibility (under review and
development)
Subpart I. Variances Violations and Penalties Appeals
Sec. .
280.200. is Variances
280.201... Violations and Penalties
280.202*: ¦ Appeals .
Far latest statotf* or snlttarar call 1-800-527-0430
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* 61-42 Health and iEnvironmental Control:
Subpart A. Program Scope and Interim Prohibition
SECTION 380.10. APPLICABILITY.
(a) The requirements of this Part apply to all owners arid 6perato*ri of aft"UST
system as defined in Sectibn 280.17'except as otherwise provided in '^aragrt^hy.
b). (c). and (d) of this section. Any UST system listed in paragraph (c) Of this
•ection must meet the requirements of Section 280.11.
(b) The following UST systems are excluded from the requirements of this Part:
(1) Any 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.
(2) Any wastewater treatment tank system that is part of a wastewater
treatment facility regulated under Section 402 or 307(b) of the .Glean
Water Act.
(3) Equipment or machinery that contains regulated substances for
operational purposes such as hydraulic 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 thii is
expeditiously emptied after use.
(c) Deferrals. Subparts B, C, D, E,'&nd G do not apply to any of the following
ypes of UST systems:
(1) Wastewater treatment Hnk systems;
(2) Any l)ST systems coritaihing radioactive material that are regulated
under the Atomic Energy Act of 1954 (42 USC 2011 and following):
(3) Any UST system that is part of an emergency, generator, systeqi at
nuclear power generation facilities regulated by the Nuclear Regulatory.
Commission under 10 fcfTl 50 Appendix A;
(4) Airport Hydrant fuel distribution systems; and
(5) UST systems with field-constructed tanks..
(d) Deferrals. Subpart D does not apply to any UST system that'stores': fuel
iolely for use by emergency power generators.
SECTION 280.11. INTERIM PROHIBITION FOR DEFERRED UST
SYSTEMS.
(a) No person may install an UST system listed in Section 280^ 10(c) for the
purpose of storing regulated substances unless the UST system (whether of single-
ir double-wall construction):
(1) Will prevent releases due
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51-92
Health and Environmental Control
(inter Who has certification Or li(*rtsrm£ that includes education and experience
corrosiori'control or buried or submerged metal piping systems and metal
-------
R 61-92
Health And Environmental Control
(a) any^substance defined jhi Section 10L(14). oftheComprebewive
Environmental ResponscvlGompensatkm and liability Act (GERtiA)
of (980 (but 90Jipdudijag apy substance regnlatedas a hs^rdous
waste tunder.iubtide, CjTand.
(b) petroleum, including 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 "regulated substance" 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 fuels oils,
lubricants, petroleum solvents, and used oils. . .
"Release" means any spilling, leaking, emitting, discharging, escaping, leaching
or disposing from an UST into groynd water, surface water or subsurface soils.
"Release detection" mean* .determining whether a release of a regulated
substance has occurred from the .USX system into the environment or ujto the
interstitial space between the USJ system and its secondary barrier or secondary
containment around it.
"Repair" means to restore a tank or,UST system component that has a used a
release of product from the UST system.
"Residential tank" is a.taqii located on property used primarily for dwelling
purposes.
"SARA" means the Superfund Amendments and Reauthorization Act of.^986.
"Secondary containment":meant,an impervious layer of matirials-which is
installed around a tank or system of tanks, so that any volume of regulated
substances which may be released fropi a tank will be prevented from contacting
the environment outside said impervious layer for the period of time necessary to
detect and recover released regulated substances. Materials or devices t&ed to
provide a secondary containment may include concrete, impervious liners,.'double-
wall tanks or other materials dr devices, singularly or in combination, which is
approved by the Department.
"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
throifgh the soil and settled solids and scum from the tank are pumped out
periodically and hauled to a treatment facility.
"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 pjrecipitation, or domestic, commercial, or industrial
wastewater to and from retention area* or any areas where.treatment is designated
to occtir. The collection of storm Water and wastewater does not include treatment
except where incidental to conveyance.
"Surface impoundment" .is a natural topographic depression, man-made
excavation, or diked area formed priiharily of earthen materials (although it may
be lined with man-made materials) tK&t is not an injection well.
"Tank" is a stationaty device designed to contain an accumulation of regulated
substances and constructed of non-earthen materials (e.g., concrete, steel, plastic)
that provide structural support.
"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.
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"Underground release" means any belowground release.
"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:
(a) Farm or residential tank of 1,100 gallons or less capacity used for
storing motor fuel for noncommercial purposes;
(b) Tanks 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 (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 seq.), or
(3) Which is an intrastate pipeline facility regulated under state laws
comparable to the provisions of the law referred to in paragraph
(d)(1) or (d)(2) of this definition;
(e) Surface impoundment, pit, pond, or lagoon;
(0 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; 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" or "UST" does not include an pipes
connected to any tank which is described in paragraphs (a) through (i) of this
definition.
"Upgrade" means the addition or retrofit of some systems such as cailiodic
protection, lining, or spill and overfill controls to improve the ability of an
underground storage tank system to prevent the release of product.
"UST system" or "Tank system" means an underground storage tank,
connected underground piping, underground ancillary equipment, and contain-
ment system, if any.
"Wastewater treatment tank" means a tank that is designed to receive and treat
an influent wastewater through physical, chemical, or biological methods.
Subpart B. UST Systems: Design, Construction, Installation,
Notification and Permitting
SECTION 280.20. PERFORMANCE STANDARDS FOR NEW UST SYS-
TEMS.
In order to prevent releases due to structural failure, corrosion, or spills and
overfills for as long as the UST systems is used to store regulated substances, all
owners and operators of new UST systems must obtain permits in accordance
with Section 280.23 and meet the following requirements.
(a) ranis. 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
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I 61-92 Health and Environmental Con irol
developed by a nationally recognized association or independent
testing laboratory as specified below:.
(1) ' The tank is constructed of fiberglass-reinfei red 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- Fib: i-Reinforced Plastic
Underground Storage Tanks for Petroleum I'roducls"; Underwrit-
er's Laboratories of Canada CAN4-S615-M83, "Standard for
Reinforced Plastic Underground Tanks for IVtroleum Products";
or American Society of Testing and Materials Standard D4021-86,
"Standard Specification for Glass-Fiber Reinforced Polyester
Underground Petroleum Storage Tanks."]
(2) The lank is constructed of steel and calhoditally protected in l he
following manner:
(i) The tank is coated with a suitable dielectric material;
(ii) Field-installed cathodic protection systems are designed by a
corrosion expert;
(iii) Impressed current systems are designed to allow determination
of current operating status as required in Section 280-31(c);
and
(iv) Cathodic protection systems are operated and maintained in
accordance with Section 280.31 or according to guidelines
established by the Department; or
[Note: The following codes and standards may be used to comply with
paragraph (a)(2) of this section:
(A) Steel Tank Institute "Specification Tor STI-P3 System of
External Corrosion Protection of Underground Steel Storage
Tanks";
(B) Underwriters Laboratories Standaid 1746, "Corrosion
Protection Systems for Underground Storage Tanks";
(C) Underwriters Laboratories of Canada CAN4-S603-M85,
"Standard for Steel Underground Tanks for Flammable and
Combustible Liquids," and CAN4-G03.1-M85, "Standard for
Galvanic Corrosion Protection Sysieins for Underground
Tanks for Flammable and Combustible Liquids," and CAN4-
S631-M84, "Isolating Bushings for Sicel Underground Tanks
Protected with Coatings and Galvanic Systems"; or
(D) National Association of Corrosion Engineers Standard RP-02-
85, "Control of External Corrosion on Metallic Buried,
Partially Buried, or Submerged Liquid Storage Systems," and
Underwriters Laboratories Standard 58, "Standard for Steel
Underground Tanks for Flammable and Combustible Liq-
uids."] ' •
(3) The tank is constructed of a steel-iiberglass-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 Underground
Storage Tanks," of the Association for Composite Tanks ACT-100,
"Specification for the Fabrication of FRP Clad Underground
Storage Tanks.")
58 For latest statutes or asdstance call 1-800-527-0430
Health and Environmental Control
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(4) The tank is constructed of metal without additional corrosion
protection 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 tha: demonstrate
compliance with the requirements of paragraph (a)(4)(i) or
this section for the remaining life of the tank; or
(5) The lank 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 thai is no
less protective of human health and the environment than
paragraphs (a)(1) through (4) of this section.
(b) Piping. The piping thai 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
[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 4-2(533-
M8I, "Flexible Underground Hose Connectors."]
(2) The piping is constructed of steel and cathodically protected in
the following manner:
(i) The piping is coaled wiih a suitable dielectric material;
(ii) Field-installed cathodic protection systems arc designed by a
corrosion expert;
(iii) Impressed current systems are designed to allow determinaiion
of current operating status as required in Section 280.31(c):
and
(iv) Cathodic protection systems are operated and maintained in
accordance with Section 280.31 or guidelines established by
the Department; 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 Publication 1615, "Installation
of Underground Petroleum Storage Systems";
(C) American Petroleum Institute Publication 1632, "Cathodic
Protection of Underground Petroleum Storage Tanks and
Piping Systems"; and
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Health and Environmental Control
(D) National Association of Corrosion Engineers Standard RP-01-
69, "Control of External Corrosion on Submerged Metallic
Piping Systems.'-']
(3) The piping is constructed of metal without additional corrosion
protection measures provided that:
(i) The piping is installed at a site that is determined by a
corrosion expert to hot 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 paragraph (B)(S)(i) of
this section for the remaining life of the piping; or
[Note: National Fire Protection Association Standard 30, "Flammable
and Combustible Liquids Code"; and National Association of
Corrosion Engineers Standard RP-01-69, "Control of External
Corrosion on Submerged Metallic Piping Systems," may be used to
comply with paragraph (B)(3) of this section.]
(4) 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 nnd the environment
than the requirements'in paragraphs (b)(1) through (3) of this
section.
(c) Spill and ovetfiU prevention equipment.
(1) Except as provided in paragraph (c)(2) of this section, 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;
(i) 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
(ii) Overfill prevention equipment that will:
(A) Automatically shut off flow into the tank, when the tank is
no more thart 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.
(2) Owners and operators are not required to use the spill and overfill
prevention equipment specified in paragraph (c)(1) of this section
if:
(i) 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 paragraph
(c)(l)(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
accordance 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
SO For latest statutes or assistance call 1-800-527-0*30
Health and Environmental Control
R 61-92
described in the following codes may be used to comply with the
requirements of paragraph (d) of this section:
(i) American Petroleum Institute Publication 1615, "Installation of
Underground Petroleum Storage System"; or
(ii) Petroleum Equipment Institute Publication RP100, "Recom-
mended Practices for Installation of Underground Liquid Storage
Systems"; or
(iii) American National Standards Institute Standard B31.S, "Petro-
leum Refinery Piping," and American National Standards Institute
Standard B31.4 "Liquid Petroleum Transportation Piping Sys-
tem."]
(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 to the
Department on the Permit to Operate application form.
(1) The installer has been certified by the tank and piping manufactur-
ers; or
(2) The installer has been certified or licensed by the Department; or
(3) The installation has been inspected and certified by a registered
professional engineer with education and experience in UST system
installation; or
(4) The installation has been inspected and approved by the
Department; or
(5) All work listed in the manufacturer's installation checklists has
been completed; or
(6) The owner and operator have complied with another method for
ensuring compliance with paragraph (d) of this section that is
determined by the Department to be no less protective of human
health and the environment.
(f) Secondary containment required. All new tanks which are installed within
100 feet of an existing water supply well must install an approved
method of secondary containment.
(g) Meui tank filling requirements. Regulated substances shall not be
introduced into a newly installed tank until the tank is tested in
accordance with Section 280.24 and the requirements of (e) above
have been met.
(h) Unpermitled/unregisteredfilling prohibition. No regulated substance may be
introduced into any tank which has not been permitted or registered
with the Department.
SECTION 280.21. UPGRADING OF EXISTING UST SUSTEMS.
(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 Section 280.20;
(2) The upgrading requirements in sections (b) through (d) of this sertion;
or
(3) Closure requirements under Subpart C of this Part, including
applicable requirements for corrective action under Subpart F.
(b) Tank upgrading requirements. Steel tanks must be upgraded io meet one of the
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following requirements in accordance with a code of practice developed by a
nationally recognized association or independent testing laboratory:
(1) Interior lining. A tank may be upgraded by internal lining if:
(i) The lining is installed in accordance with the requirements of
Section 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 meeis the requirements of Section
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 corrosion holes prior to
installing the cathodic protection system; or
(ii) The tank has been installed for less than 10 years and is
monitored monthly for releases in accordance with Section
280.43(d) through (h); or
(iii) The tank has been installed for less thai 10 years and is assessed
for corrosion holes by conducting two (2) tightness tests that meet
the requirements of Section 280.43(c). The first lightness 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
(iv) 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 paragraphs (b)(2)(i) through (iii) of this section.
(3) Internal lining combined with cathodic protection. A tank may be upgraded
by both internal lining and cathodic protection if:
(i) The lining is installed in accordance with the requirements of
Section 280.33; and
(ii) The cathodic protection system meets the requirements of
Section 280.20(a)(2)(ii), (iii), and (iv).
[Note: The following codes and standards may be used to comply with this
American Petroleum Institute Publication 1631, "Recommended
Practice for the Interior Lining of Existing Steel Underground Storage
Tanks";
National Leak Prevention Association'Standard 631, "Spill Prevention,
Minimum 10 Year Life Extension of Existing Steel Underground Tanks
by Lining Without the.Addition of Cathodic Protection";
National Association of Corrosion Engineers Standard RP-02-85,
"Control of External Corrosion on Metallic Buried, Partially Buried,
or Submerged Liquid Storage Systems"; and
American Petroleum Institute Publication 1632, "Cathodic Protection
of Underground Petroleum Storage Tanks and Piping Systems."]
(c) Piping upgrading requirements. Metal piping that routinely contains regulated
substances and is in contact with the ground must be cathodically protected in
62 For latest statutes or assistance call 1-800-527-0430
section:
(A)
(B)
(C)
(D)
Health and Environmental Control
R 61-92
accordance with a code of practice developed by a nationally recognized
association or independent testing laboratory and must meet the requirements o
Section 280.20(b)(2)(ii), (iii), and (iv).
[Note: The codes and standards listed in the note following Section 280.20(b)(2)
may be used to comply with this requirement.]
(d) 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 Section 280.20(c).
SECTION 280.22. NOTIFICATION REQUIREMENTS.
(a) By January 1, 1986 any owner of an existing tank storing or having stored
regulated substances on or before January 1, 1986 shall notify the Department of
the existence of such a lank specifying the type, location, storage capacity, :ige,
and uses of such a lank (i.e., operational status at the time of notification) anrl of
any known past failure(s) and corrective action taken as a result of the failure.
(b) For each underground storage tank taken out of operation after January 1,
1974, the owner of such tank shall, within 12 months after the dale of enactment
of these regulations (R.61-92), notify the Department of the existence of such
tanks (unless the owner knows the tank subsequently was removed from the
ground). The owner of a lank taken out of operation on or before January 1,
1974, shall not be required to notify the Department under this subsection.
(c) Notice under Subparagraph (b) shall specify, to the extent known to the
owner:
(1) The date the tank was taken out of operation;
(2) The age of the lank on the dale taken out of operation;
(3) The capacity, type and location of the tank; and
(4) The type and quantity of substances left stored in such lank on the
date taken out of operation.
(d) Any owner which brings into operation an existing underground storage
tank after the initial notification period specified under paragraph (a), shall notify
the Department within 30 days.
(e) Paragraphs (a) through (d) of this subsection shall not apply to tanks for
which notice was given pursuant lo Section 103(c) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980.
(0 Upon receipt of an approvable notification from existing tank owners, (he
Department will store the notification information for the purpose of managing,
and appropriately cross-referencing and indexing the data.
(g) After January 1, 1986, any owner of an existing lank which has not notified
with Department in accordance with this section shall be in violation of these
regulations.
SECTION 280.23. NEW TANKS—PERMITS REQUIRED
(a) After January I, 1986, all new tanks must be permitted. The person who
proposes to install a new tank must apply for a construction permit, on a form
supplied by the Department or an approved substitute, and possess said permit
prior to tank installation and shall meet the new tank design, construction, and
installation requirements of Section 280.20.
(b) The person who proposes to place a new tank in operation musl apply for
an operating permit, on a form supplied by the Department, and possess said
permit prior to placing the lank in operation.
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R 6-!-92 Health and Environmental Control
(1) The permit to operate application must certify compliance with the
following requirements:
(i) Installation of tanks and piping under Section 280.20(e);
(ii) Cathodic protection of steel tanks and piping under Section
280.20(a) and (b);
(iii) Financial responsibility under Subpart H of this Part;
(iv) Release detection under Sections 280.11 mid 280.42; and
(v) Testing under Section 280.24
(2) All owners and operators of new UST systems must ensure that the
installer certifies in the permit to operate application form that the
methods used to install the tanks and piping complies with the
requirements in Section 280.20(d).
(3) 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 permitting obligations under this section.
(c) After January 1, 1986, any person who installs or operates a new tank withoui
receiving permits will be in violation of these regulations.
(d) The Department may issue, deny, revoke, suspend or modify permits under
such conditions as it may prescribe for the operation of any tank; provided,
however, that no permit shall be revoked withoui first ptoviding an opportunity
for a hearing.
(e) Any person who plans to install a system of two or more tanks at the same
location, may apply for one permit for that system of tanks.
SECTION 280.24. TESTING.
(a) For all newly installed tanks, before being covered, enclosed, or placed in
operation, the piping shall be hydrostalically tested to 150 percent of the
maximum anticipated pressure of the system or pneumatically tested to 100
percent of the maximum anticipated pressure of the system, but not less than 50
pounds per square inch gauge at the highest point of the system. If a pneumatic
test is performed, all joints and connections must be sprayed with a soap solution,
and the lest must be maintained for a time sufficient to complete visual inspection
for all joints and connections, but not less than 10 minutes. The tank shall be
tested for lightness hydrostalically or with air pressure .it not less than 3 pounds
per square inch and nol more than 5 pounds per square inch after installation but
before being covered ot placed in use. Pneumatic tests shall not be performed
after regulated substances have been placed in a lank.
(b) The Department may require the operator to hydrostalically test for
tightness, when accurate release detection system records have not been
maintained as specified in Subpart D.
(c) The Department may require the operator to hydrosiatically test for
tightness, when stored regulated substances and/or their vapors have been
detected in neighboring structures, sewers, wells, or oilier on-or-ofT properly
locations.
Subpart C. General Operating Requirements
SECTION 280.30. SPILL AND OVERFILL CONTROL.
(a) Owners and operators must ensure that releases due to spilling or overfilling
do nol occur. The owner and operator must ensure that the volume available in
the lank 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.
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Health and Environmental Control
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[Note: The transfer procedures described in National Fire Protection Association
Publication 385 may be used to comply with paragraph (a) of this section. Further
guidance on spill and overfill prevention appears in American Petroleum Institute
Publication 1621, "Recommended Practice for Bulk Liquid Stock Control at Retail
Outlets," and National Fire Protection Association Standard 30, "Flammable and
Combustible Liquids Code."]
(b) The owner and operator must report, investigate, and rlean up am1 spills
and overfills in accordance with Section 280.53.
SECTION 280.31. OPERATION AND MAINTENANCE OF CORROSION
PROTECTION.
All owners and operators of steel UST systems with corrosion protection must
comply with the following requirements to ensure thai releases due (o 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 ihe 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 or
according to another reasonable time frame established l>j- the
Department; and
(2) Inspection criteria. The criteria that are used to determine that
cathodic protection is adequate as required by this section must be
in accordance with a code of practice developed by a nationally
recognized association.
[Note: National Association of Corrosion Engineers Standard RP-02-
85, "Control of External Corrosion on Metallic Buried, Partially
Buried, or Submerged Liquid Storage Systems." may be used to
comply with paragraph (b)(2) of this section.]
(c) UST systems with impressed current cathodic protection systems must
also be inspected every 60 days to ensure the equipment is running
properly.
(d) For UST systems using cathodic protection, records of the operation
of the cathodic protection must be maintained (in accordance with
Section 280.34) lo 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 paragraph (c)
of this section; and
(2) The results of testing from the last two inspections required in
paragraph (b) of this section.
SECTION 280.32. COMPATIBILITY.
Owners and operators must use an UST system made of or lined with materials
that are compatible with the substance stored in the UST system.
[Note: Owners and operators storing alcohol blends may use the following
codes to comply with the requirements of this section:
(A) American Petroleum Institute Publication 1626, "Storing and Handling
Ethanol and Gasoline-Ethanol Blends at Distribution Terminals and Service
Stations"; and
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I 61-92 Health and Environmental Control
(B) American Petroleum Institute Publication 1627, "Storage and Handling of
lasoline-Methanol/Cosolvent Blends at Distribution Terminals and Service
itations."]
SECTION 280.3S. REPAIRS ALLOWED.
Owners and operators of UST systems must ensure that repairs will prevent
eleases due to structural failure or corrosion as long as the UST system is used to
;tore 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.
[Note: The following codes and standards may be used to comply with
paragraph (a) of this section: National Fire Protection Association
Standard 30, "Flammable and Combustible 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 Underground Storage Tanks"; and National Leak
Prevention Association Standard 631, "Spill Prevention, Minimum 10
Year Life Extension 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
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
Sections 280.43(c) and 280.44(b) within 30 days following the date of
the completion 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 recognized association
or an independent testing laboratory; or
(2) The repaired portion of the UST system is monitored monthly for
releases in accordance with a method specified in Section 280.43(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.
(e) Within 6 months following the repair of any cathodically protected
UST system, the cathodic protection system must be tested in
accordance with Section 280.31(b) and (c) to ensure that it is operating
, properly.
(0 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.
SECTION 280.34. 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
66 For latest statute* or assistance call 1-800-527-0430
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document submission, testing, and monitoring by the owner or operator pursuant
to Section 9005 of Subtitle 1 of the Resource Conservation and Recovery Act, as
amended.
(a) Reporting. Owners and operators must submit the following information to
the Department:
(1) Notification for all UST systems (Section 280.22), v.hich includes
certification of installation for new UST systems (Section 280.20(c));
(2) Reports of all releases including suspected releases (Section 280.50),
spills and overfills (Section 280.53). and confirmed releases (Section
280.61);
(3) Corrective actions planned or taken including initial abatement
measures (Section 280.62), initial site characterization (Seciion
280.63), free product removal (Section 280.64), investigation of soil
and ground-water cleanup (Section 280.65), and corrective action plan
(Section 280.66); and
(4) A notification before permanent closure or change-in-scrvice (Section
280.71).
(b) Recordkeeping. Owners and operators must maintain the following information:
(1) A corrosion expert's analysis of site corrosion potential if corrosion
protection equipment is not used (Seciion 280.20(a)(4); Section
280.20(b)(3)).
(2) Documentation of operation of corrosion protection equipment
(Section 280.31);
(3) Documentation of UST system repairs (Seciion 280.33(0);
(4) Recent compliance with release detection requirements (Section
280.45); and
(5) Results of the site investigation conducted at permanent closure
(Seciion 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 ilie
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 Section
280.74, owners and operators are also provided with the additional
alternative of mailing closure records to the Department if they rannot
be kept at the site or an alternative site as indicated above.
Subpart D. Release Detection
SECTION 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 condition; and
(3) Meets the performance requirements in Sections 280.43 or 2H0.44,
with any performance claims and their manner of determination
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described in writing by the equipment manufacturer or installer. In
addition, methods used after December 22, 1090, except for methods
permanently installed prior to that date, must be capable of detecting
the leak rate or quantity specified for that method in Section 280.43(b),
(c), and (d) or 280.44(a) and (b) with a probability of detection of 0.95
and a probability of false alarm of 0.05.
(b) When a release detection method operated in accordance with the
performance standards in Sections 280.43 and 280.44 indicates a release may
have occurred, owners and operators must notify the Department in accordance
with Subpart E.
(c) Owners and operators of all UST systems mus( comply with the release
detection requirements of this Subpart by December 22nd of the year listed in the
following table:
SCHEDULE FOR PHASE-IN OF RELEASE DETECTION
YEAR YEAR WHEN RELEASE DETECTION IS REQUIRED
SYSTEM (BY DECEMBER 22 OF THE YEAR INDICATED)
INSTALLED 1989 1990 1991 1992 1993
BEFORE 1965 OR
DATE UNKNOWN
1965 - 1969
1970 - 1974
1975 - 1979
1980- 1988
RD
P
P/RD
P
P
P
RD
RD
RD
NEW TANKS (AFTER DECEMBER
22)
IMMEDIATELY UPON INSTALLATION
P= Must begin release detection for all pressurized piping in accordance with
Sections 280.41 (b) and 280.42(b)(4).
RD= Must begin release detection for tanks and suction piping in accordance
with Sections 280.41(a), 280.41(b), and 280.42.
(d) Any existing UST system that cannot apply a method of release detection
that complies with the requirements of this Subpart must complete the closure
procedures in Subpart C by the date on which release detection is required for
that UST system under paragraph (c) of this section.
SECTION 280.41. REQUIREMENTS FOR PETROLEUM VST SYSTEMS.
Owners and operators of petroleum UST 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 Section 280.43 (d)-(h) except that:
(1) UST systems that meet the performance standards in Sections
280.20 or 280.21, and the monthly inventory control requirements
in Section 280.43(a) or (b) may use tank tightness testing
(conducted in accordance with Section 280.43(c)) at least every 5
years until December 22, 1998, or until 10 years after the tank is
installed or upgraded under Section 280.21(b), whichever is later;
(2) UST systems that do not meet the performance standards in
Section 280.20 or 280.21 may use monthly inventory controls
(conducted in accordance with Section 280.43(a) or (b) and annual
tank tightness testing (conducted in accordance with Section
280.43(c)) until December 22, 1998 when the .ink must be
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upgraded under Section 280.21 or permanently closed under
Section 280.71; and
(3) Tanks with capacity of 550 gallons or less may use weekly tank
gauging (conducted in accordance with Section 280.43(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 Section 280.44(a): and
(ii) Have an annual line tightness lest conducted in accordance
with Section 280.44(b) or have monthly monitoring conducted
in accordance with Section 280.44(c).
(2) Suction piping. Underground piping that conveys reguhncd
substances under suction must either have a line lightness test
conducted at least every 3 years and in accordance with Section
280.44(b), or use a monthly monitoring method conducted in
accordance with Section 280.44(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 lank if the suction is
released;
(iii) Only one check valve is included in each suction line;
(iv) The check valve is located directly 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 determined.
SECTION 280.42. REQUIREMENTS FOR HAZARDOUS SUBSTANCE
UST SYSTEMS.
Owners and 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 Section 280.41. By December 22, 1998,
all existing hazardous substance UST systems must meet the release
detection requirements for new systems in paragraph (b) of this
section.
(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 lime during the operational life of ihc UST system;
and
(iii) Be checked for evidence of a release at least every 30 days.
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[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 designed, constructed, and installed
to:
(i) Contain a release from any portion of the inner lank 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 (he largest tank within
its boundary;
(ii) Prevent the interference of precipitation or ground-water
intrusion with the ability to contain or delect 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 contain-
ment 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 substances
under pressure must be equipped with an automatic line leak
detector in accordance With Section 280.44(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 Sections 280.43(b)-(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 - 1
(iii) Obtain approval from the Department to use the alternate
release detection method before the installation and operation
of the new UST system.
SECTION 280.43. METHODS OF RELEASE DETECTION FOR TANKS.
Each method of release detection for tanks used to meet the requirements of
Section 280.41 must be conducted in accordance with the following:
(a) Inventory control. Product inventory control (or another test of 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
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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 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
1621, "Recommended Practice for Bulk Liquid Slock Control at Retail
Outlets," may be used, where applicable, as guidance in meeting the
requirements of this paragraph.]
(b) Manual tank gauging. Manual lank gauging must meel the following
requirements:
(1) Tank liquid level measurements are taken at the beginning and
ending of a period of a( least 30 hours during wliirli no li<|ui
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(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 diffusion 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 monitoring devices located in
the excavation zone in the event of a release frum the tank;
(3) The measurement of vapors by the monitoring device is not
rendered inoperative by the ground water, rainfall, or soil moisture
or other known interferences so that a release could go undetected
for more than 30 days;
(4) The level of background contamination in the excavation zone will
not 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 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;
(6) In the UST excavation zone, the site is assessed to ensure
compliance with the requirements in paragraphs (e)(I)-(4) of this
section 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; and
(7) Monitoring wells are clearly marked and secured to avoid
unauthorized access and tampering.
(0 Ground-water monitoring. Testing or monitoring for liquids on the ground
water must meet the following requirements;
(1) The regulated substance stored is immisrible 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 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 monitoring 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 filler pack;
(5) Monitoring wells or devices intercept the excavation zone or are
as close to it as is technically feasible;
(6) 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 ground water in the monitoring wells;
(7) Within and immediately below the UST system excavation zone,
the site is assessed to ensure compliance wilh the requirements in
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paragraphs (f)(l)-<5) of this section and to establish the number
and positioning of monitoring wells or devices that will detect
releases from any portion of the tank thai routinely contains
product; and
(8) Monitoring wells are clearly marked and secured to avoid
unauthorized 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, constructed and installed to
detect a leak from 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;
[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 secondary 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 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;
(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 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 cathodic 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 floor
plain, unless the barrier and monitoring designs are for use
under such conditions; and
(vi) Monitoring wells are clearly marked and secured to avoid
unauthorized access and tampering.
(3) For tanks with an internally fitted liner, an automated device can
delect a release between ihe inner wall of the lank and the liner,
and the liner is compatible with the substance stored.
(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 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 Department may approve another method if the owner and
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operator can demonstrate that the method can detect a release as
effectively as any of the methods allowed in paragraphs (c)-(h) of
this section. In comparing methods, the Department shall consider
the size of release that the method can delect and the frequency
and reliability with which it can be delected. If the method is
approved, the owner and operator must comply with any conditions
imposed by the Department on its use to ensure the protection of
human health and the environment.
SECTION 280.44. METHODS OF RELEASE DETECTION FOR PIPING.
Each method of release detection for piping used to meet the requirements of
eciion 280.41 must be conducted in accordance with the following:
(;i) Automatic line leak detectors. Methods which alert the operator to the
presence of a leak 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 lightness testing. A periodic test of piping may be conducted only if
it can delect 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 Section 280.43(e)-(h) may
be used if they are designed to detect a release from any portion of
the underground piping that routinely contains regulated substances.
SECTION 280.45. RELEASE DETECTION RECORDKEEPING.
All UST system owners and operators must maintain records in accordance with
iection 280.34 demonstrating compliance with all applicable requirements of this
iubpart. 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 Department, from the date of installation;
(b) The results of any sampling, testing, or monitoring must be maintained
for at least 1 year, or for another reasonable period of time determined
by the Department, except that the results of tank tightness testing
conducted in accordance with Section 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 permanently located on-site must be
maintained for at least one year after the servicing work is completed,
or for another reasonable time period determined by the Department.
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.
Subpart E. Release Reporting, Investigation, and
Confirmation
SECTION 280.50. REPORTING OF SUSPECTED RELEASES.
Owners and operators of UST systems must report to the Department within 72
hours and follow the procedures in Section 280.52 for any of the following
conditions:
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(a) The discovery by owners and operators 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, basements, sewer and
utility lines, and nearby surface water).
(b) Unusual operating conditions observed by owners and operators (such
as 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 system equipment is found to be defective
but not leaking, and is immediately repaired or replaced; and
(c) Monitoring results from a release detection method required under
Sections 280.41 and 280.42 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 result; or
(2) In the case of inventory control, a second month of data docs not
confirm the initial result.
SECTION 280.51. INVESTIGATION DUE TO OFF-SITE IMPACTS.
When required by the Department, owners and operators of UST systems must
follow the procedures in Section 280.52 to determine if the UST system is the
source of off-site impacts. These impacts include the discovery 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
observed by the Department or brought to its attention by another party.
SECTION 280.52. RELEASE INVESTIGATION AND CONFIRMATION
STEPS.
Unless corrective action is initiated in accordance with Subpart F, owners and
operators must immediately investigate and confirm all suspected releases of
regulated substances requiring reporting under Section 280.50 within 7 days, or
another reasonable time period specified by the Department, 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 Sections 280.43(c) and 280.44(b))
that determine whether a leak exists in that portion of the tank that
routinely contains 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 delivery piping indicate that
a leak exists.
(2) 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 lor suspecting
a release.
(3) Owners and operators must conduct a site check as described in
paragraph (b) of this section if the test results for the system, tank,
and delivery piping do not indicate that a leak exists but environ-
mental contamination is the basis for suspecting a release.
(b) Site check. 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
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substance, the type of initial alarm or cause for suspicion, the type of
backfill, the depth of ground water, and other factors appropriate for
identifying the presence and.source of the release.;, .
(1) If the lest results for the excavation 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 excavation zone or the UST site do not
indicate that a release has occurred, further investigation is not
required.
SECTION 280.53. REPORTING AND CLEANUP OF SPILLS AND
•VERFILLS.
(a) Owners and operators of UST systems must contain and immediately clean
p a spill or overfill and report to the Department within 72 hours and begin
irrective action in accordance with Subpart F in the following cases:
(1) 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
(2) Spill or overfill of a hazardous substance that results in a release to the
environment that equals exceeds its reportable quantity under
CERCLA (40 CFR 502). VI ' -i ....
(b) Owners and operators of UST systems must contain and immediately, clean
p a spill or overfill of petroleum that it less than 25 gallons or another reasonable
mount specified by the Department; and .a spill or overfill of .a hazardous
ubstance that is less than the reportable quantity. If cleanup cannot be
ccornplished within 72 hours ownei? and operators must immediately notify the
•epariment. 1:
[Note: A release of a hazardous substance equal to or in excess of its reportable
luantity must also be reported .immediately (rather than within 72 hours) to' (he
National Response Center under Sections 102 and 103 of the Comprehensive
Environmental Response, Comperiiation, and Liability Act of 1980 (40 CFR
¦ 02.6) and to appropriate state and local authorities under Title III of the
¦upcrfund Amendments and Reauthorization Act of 1986 (40 CFR 355.40).]
Subpart F. Release Response and Corrective Action for UST
Systems Containing Petroleum or Hazardous Substances
SECTION 280.60. GENERAL.
Owners and operators of petroleum or hazardous substance UST systems must,
n response to a confirmed release from the UST system, comply with the
equireiiients of this subpart except ftr USTs excluded under Section 280.10(b)
ind UST systems subject to RCRA Subtitle C corrective action requirements
irider Section S004(u) of the'iResdurce Conservation and Recovery Act, as
intended.
SECTION1 28(161. INITIAL "RESPONSE.
Upon confirmation of a release in accordance with Section 280.52 or after a
release from the UST system is identified in any other manner, owners and
aperators must perform the following initial response actions within 72 hours of a
release:
(a) Report the release to the Department (e.g., by telephone or electronic
mail);
(b) Take immediate action to prevent any further release of the regulated
substance into the environment; and
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(c) Identify and mitigate fire, explosion, and vapor hazards.
SECTION 280.62. INITIAL ABATEMENT MEASURES AND SITE CHECK.
(a) Unless directed to do otherwise by the Department, owners and operators
must perform the following abatement measures:
(I) Remove as much of the regulated substance from the UST system as is
necessary to prevent further release to the environment;
(12) Visually inspect any aboveground releases or exposed belowground
releases and prevent further migration of the released substance into
surrounding 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
excavation zone and entered into subsurface structures (such as sewers
or basements);
(4) 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 state and local requirements;
(5) Measure for the presence of a release where contamination is most
likely to be present at the UST site, unless the presence and source of
the release have been confirmed in accordance with-the site check
required by Section 280.52(b) or the closure site assessment of Section
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 presence and source of
the release; and
(6) Investigate to determine the possible presence of free product, and
begin free product removal as soon as practicable and in accordance
with Section 280.64.
(b) Within 20 days after release confirmation, or within another reasonable
period of time determined by the Department, owners and operators must submit
a report to the Department summarizing the initial abatement steps taken under
paragraph (a) of this section and any resulting information or data.
SECTION 280.63. INITIAL SITE CHARACTERIZATION.
(a) Unless directed to do otherwise by the Department, owners and operators
must assemble information about the site and the nature of the release, including
information gained while confirming the release or completing the initial
abatement measures in Sections 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 populations, water quality, use and
approximate locations of wells potentially affected by the release,
subsurface soil conditions, locations of subsurface sewers, climatologi-
cal conditions, and land use;
(3) Results of the site check required under Section 280.62(a)(5); and
(4) Results of the free product investigations required under Section
280.62(a)(6), to be used by owners and operators to determine
whether free product must be recovered under Section 280.64.
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(b) Within 45 days of release confirmation or another reasonable period of time
determined by the Department, owners and operators must submit the information
:ollected in compliance with paragraph (a) of this section to the Department in a
manner that demonstrates its applicability and technical adequacy, or in a format
ind according to the schedule required by the Department.
SECTION 280.64. FREE PRODUCT REMOVAL.
At sites where investigations under Section 280.62(a)(0) indicate the presence
af 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 Sections 280.61 through 280.63, or
preparing for actions required under Sections 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 unconlaminated 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, slate 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 lo
prevent fires of explosions; and
(d) Unless directed to do otherwise by the Department, prepare and
submit to the Department, within 45 days after confirming a release, a
free product removal report (hat provides
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SECTION 280.67. PUBLIC PARTICIPATION.
(a) For each confirmed release that requires a corrective action plan, the
Department must provide notice to the public by means '' signed 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 personal rontacts by field staff.
(b) 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.
(c) Before approving a corrective action plan, the Depai imenl 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.
r confirmed. However,
release detection is not required as long as the UST sysn in 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.
(b) When an UST system is temporarily closed for 3 months or more, owners
and operators must also comply with the following requii ements:
(1) Leave vent lines open and functioning; and
(2) 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 Section 280.20 for new UST systems or the upgrading
requirements in Section 280.21, except that the spill and overfill equipment
requirements do not have to be met. Owners and operators must permanently
close the substandard UST systems at the end of this 12-month period in
accordance with Sections 280.71-280.74, unless the Department provides an
extension of the 12-month temporary closure period. Owners and operators must
complete a site assessment in accordance with Section 280.72 before such an
extension can be applied for.
SECTION 280.71. PERMANENT CLOSURE AND CHANGES-IN-
SERVICE.
(a) At lease 30 days before beginning either permanent closure or a change-in-
service under paragraphs (b) and (c) of this section, or within another reasonable
lime period determined by the Department, owners and operators must notify the
Department of their intent to permanently close or make the change-in-service,
unless such action is in response to corrective action. The required assessment of
the excavation zone under Section 280.72 must be performed after notifying the
80 For latest statutes or nalstancc call 1-800-527-0430
Health and Environmental Control
R 61-92
Department 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 accumulated sludges. All tanks taken out of service
permanently must also be either removed from the ground or filled with an inert
solid material.
(c) 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 opeiators
must empty and clean the tank by removing all liquid and accumulated sludge and
conduct a site assessment in accordance with Section 280.72.
(Note: The following cleaning and closure procedures may be used to comply
with this section:
(A) American Petroleum Institute Recommended Practice 1604, "Removal
and Disposal of Used Underground Petroleum Storage Tanks";
(B) American Petroleum Institute Publication 2015, "Cleaning Petroleum
Storage Tanks";
(C) American Petroleum Institute Recommended Practice lf>31, "Interior
Lining of Underground Storage Tanks," may be used as guidance for
compliance with this section; and
(D) The National Institute for Occupational Safety and Health "Criteria
for a Recommended Standard. . .Working in Confined Space" may be
used as guidance for conducting safe closure procedures at some
hazardous substance tanks.]
SECTION 280.72. ASSESSING THE SITE AT CHANGE-1N-OWNER,
CLOSURE OR CHANGE-IN-SERVICE.
(a) Before permanent change-in-owner, 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. 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 ground water, and other factors appropriate for identifying
the presence of a release. The requirements of this section arc satisfied if one of
the external release detection methods allowed in Section 280.43(e) and (f) is
operating in accordance with the requirements in Section 280.43 at the time of
closure, and indicates no release has occurred.
(b> If contaminated soils, contaminated ground water, or free product as a
liquid or vapor is discovered under paragraph (a) of this section, or by any other
manner, owners and operators must begin corrective action in accordance with
Subpart F.
SECTION 280.73. APPLICABILITY TO PREVIOUSLY CLOSED UST
SYSTEMS.
When directed by the Department, the owner and operator of an UST system
permanently closed before December 22, 1988, must access the excavation zone
and close the UST system in accordance with this Subpart if releases from the
UST may, in the judgment of the Department, pose a current or potential threat
to human health and the environment.
SECTION 280.74. CLOSURE RECORDS.
Owners and operators must maintain records in accordance with Section 280.34
that are capable of demonstrating compliance with closure requirements under
this Subpart. The results of the excavation zone assessment required in Section
For latest itatutes or assistance call 1-800-527-0430 81
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R 61-92 Health and Environmental Control
280.72 must 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 US I' system out of
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PETROLEUM UNDERGROUND STORAGE 68-215-101
of environmental quality, pollution monitoring and environmental
quality regulation enforcement;
(3) Establish a technical advisory service for industries and municipalities
to advise and assist, in coordination with state regulatory agencies, in the
technical problems arising from the compliance with environmental quality
control regulations and from self-initiated pollution abatement programs; and
(4) Develop and coordinate educational engineering programs for in-service
training of technical, professional and managerial personnel needed for the
control and improvement of the environment. [Acts 1972, ch. 851, § 2; T.C.A.,
§§ 53-4902, 68-37-102.]
68- 14-103. [Reserved.]
Compiler's Notes. Former § 68-37-103
iActs 1972, ch. 851. § 3; T.C.A., $ 53-4903),
concerning the environmental engineering
project advisory board, was repealed by Acts
1985, ch. 184, § 7. Upon the transfer of this
chapter in 1992. this location was reserved to
preserve the relationship of the code sections in
this part.
CHAPTER 215
PETROLEUM UNDERGROUND STORAGE
SECTION.
68-215-101. Short title.
68-215-102. Legislative intent.
68-215-103. Definitions.
-215-104. Unlawful actions.
-215-105. Minimum requirements for tanks.
do-215-106. Notification as to tank3 in use and
tanks taken out of operation —
Certification.
68-215-107. Supervision, inspection, and en-
forcement responsibilities.
68-215-108. Proprietary information.
68-215-109. Annual fees — failure to pay.
68-215-110. Petroleum underground storage
tank fund — Environmental as-
surance fee.
68-215-111. Use of fund.
68-215-112. Petroleum underground storage-
tank board.
68-215-113. Public hearings and meetings of
board — Compensation.
68-215-114. Order for correction — Liability.
SECTION.
68-215-115. Recovery of costs by state — Ap-
portionment of liability. ,
68-215-116. Failure to take proper action.
68-215-117. Immunity from liability — Excep-
tions.
68-215-118. Compliance by governmental en-
tities.
68-215-119. Review of orders and revocations.
68-215-120. Criminal penalties — Suspension
of certificates.
68-215-121. Civil penalty — Assessment.
68-215-122. Injunctions.
68-215-123. Complaints — Hearings — Ap-
peals.
68-215-124. Exemptions.
68-215-125. Fund not deemed to be insurance.
68-215-126. Preemption of local regulation —
Exception.
68-215-127. Exclusivity of provisions.
68-215-128. Evaluation of program in 1995 —
Report to general assembly.
68-215-101. Short title. — This chapter shall be known and may be cited
the "Tennessee Petroleum Underground Storage Tank Act." [Acts 1988, ch.
984, § 2; T.C.A., § 68-53-101.]
Compiler's Notes. For transfer of the bu-
reau of environment in the department of
health and its related functions and the admin-
istration of the Tennessee environmental stat-
utes texcluding chs. 14, 110 (formerly ch. 28)
112 (formerly ch. 42) of this title) from the
department of health to the department of en-
vironment and conservation, see Executive Or-
der No. 42 i February 4, 1991).
Former ch. 53 of this title, §§ 68-53-101 —
68-53-128, were transferred to §§ 68-215-101
— 68-215-128 in 1992.
Acts 1992, ch. 693, § 1 provided that
throughout this chapter, references to the com-
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-«ew. ggy.. L"
68-215-102 ENVIRONMENTAL PROTECTION 638
missioner or the department of health, health Comparative Legislation. Petroleum un-
and environment, or public health, are derground storage,
amended to become references to the commis- Ala. Code § 8-17-85.
sioner or department of environment and con- Ark. Code § 15-72-601 et seq.
servation. Ga. O.C.G.A. 5 46-4-50 et seq.
Section to Section References. This chap- Mo. Rev. Stat. § 393.410 et seq.
ter is referred to in § 67-3-905. Va. Code 3 62.1-44.34.10 et seq.
Textbooks. Tennessee Jurisprudence, 4
Tenn. Juris., Automobiles, § 23. j
68-215-102. Legislative intent. — (a) In order to protect* the public
health, safety and welfare, to prevent degradation of the environment, con-
serve natural resources and provide a coordinated statewide underground
storage tank program, it is declared to be the public policy of the state of
Tennessee to regulate underground storage tanks and to:
(1) Provide safe storage for petroleum products;
(2) Provide a coordinated statewide program for petroleum products stored
in underground storage tanks in cooperation with federal, state, and local
agencies responsible for the prevention, control, or abatement of air, water,
and land pollution such that adequate control is achieved without unneces-
sary duplication of regulatory programs;
(3) Develop long range plans for adequate petroleum underground storage
tank systems to meet future demands;
(4) Provide a mechanism for the remediation of environmental pollution
due to releases from petroleum underground storage tank systems; and
(5) Provide a comprehensive investigation and clean-up fund to address the
problems caused by releases from petroleum underground storage tanks, in-
cluding remediation of imminent and substantial threats to public health
and/or the environment, and to provide a mechanism to assist the financial
responsibility requirements for owners/operators of petroleum underground
storage tanks.
(b) It is the intent of this legislation to enable the state lo obtain primacy
for the petroleum underground storage tank program from the United States
environmental protection agency.
(c) It is the intent of the general assembly that this chapter shall not apply
retroactively to releases or other events that occurred prior to July 1, 1988.
[Acts 1988, ch. 984, § 3; 1990, ch. 855, § 1; T.C.A., § 68-53-102.]
68-215-103. Definitions. — As used in this chapter, unless the context
clearly indicates otherwise:
(1) "Board" means the petroleum underground storage tank board estab-
lished in this chapter;
(2) "Commissioner" means the commissioner of environment and conserva-
tion, the commissioner's authorized representatives, or in the event of the
commissioner's absence or a vacancy in the commissioner's office, the deputy
commissioner;
(3) "Department" means the department of environment and conservation;
(4) "Flow through process tank" means a tank whose principal use is not for
storage but is primarily used in the manufacture of a product or in a treat-
ment process;
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PETROLEUM UNDERGROUND STORAGE
68-215-103
(5) "Inactive petroleum site" means a site that is no longer in operation, is
abandoned, or the responsible party has filed a bankruptcy petition;
(6) "Notification form" means the petroleum underground storage tank no-
tification form completed by the owner for the petroleum underground storage
tanks at each facility and required by this chapter;
(7) "Occurrence" means the discovery of environmental contamination at a
specific time and date, due to the release of petroleum products from petro-
leum underground storage tanks;
"Operator" means any person in control of, or having responsibility for,
the daily operation of the petroleum underground storage tank;
(9) "Owner" means:
(A) For petroleum storage tanks in use or brought into use on or after
November 8, 1984, any person who owns a petroleum underground storage
tank used for the storage, use, or dispensing of petroleum products;
(B) For petroleum underground storage tanks used prior to November 8,
1984, but no longer in use after that date, the person who last owned the
petroleum underground storage tank used for storage, use, or dispensing of
petroleum immediately before discontinuation of its use;
(10) "Person" means any and all persons, including individuals, firms, part-
nerships, associations, public or private institutions, state and federal agen-
cies, municipalities or political subdivisions, or officers thereof, departments,
Lcies or instrumentalities, or public or private corporations or officers
eof, organized or existing under the laws of this or any other state or
country;
(11) "Petroleum" means crude oil or any fraction of crude oil which is a
liquid at standard temperature and pressure (sixty degrees Fahrenheit (60°F)
and fourteen and seven tenths pounds per square inch (14.7 p.s.i.) absolute);
(12) "Petroleum site" means any site or area where a petroleum under-
ground storage tank is located;
(13) "Petroleum underground storage tank" means any one (1) or combina-
tion of tanks (including the underground lines connected thereto) which are
used or have been used to contain an accumulation of petroleum 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. "Petroleum underground storage tank" does not include any tank
exempted from this chapter pursuant to § 68-215-124;
(14) "Petroleum underground storage tank fund" means the fund estab-
lished by this chapter to provide for the cleanup of releases from petroleum
underground storage tanks and assist with the financial responsibilities of
owner/operators of petroleum underground storage tanks;
(15) "Release" means any spilling, overfilling, leaking, emitting, discharg-
ing, escaping, leaching or disposing of a petroleum substance from a petro-
leum underground storage tank or its associated piping into groundwater,
surface water, or subsurface soils;
(16) "Responsible party" means:
(A) The owner and/or operator of a petroleum site; or
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68-215-104
ENVIRONMENTAL PROTECTION
640
(B) Any person who at the time of the release which caused the contami-
nation was an owner and/or operator of a petroleum underground storage
tank;
(17) "State" means the state of Tennessee; and
(18) "Tank" means a stationary device, designed to contain an accumula-
tion of petroleum substances which is constructed primarily of non-earthen
materials (e.g. wood, concrete, steel, fiberglass) which provide structural sup-
port. [Acts 1988, ch. 984, § 5; T.C.A., § 68-53-103.]
68-215-104. Unlawful actions. — It is unlawful to:
(1) Cause or permit the release of a petroleum substance from a petroleum
underground storage tank into the environment;
(2) Construct, alter or operate a petroleum underground storage tank in
violation of this chapter or the rules or regulations established pursuant
thereto;
(3) Refuse or fail to pay to the department fees, including the annual fee per
tank, assessed pursuant to the provisions of this chapter and in violation of
the rules, regulations, or orders of the commissioner or board; or
(4) Install petroleum underground storage tanks that do not meet the mini-
mum standards pursuant to this chapter. [Acts 1988, ch. 984, § 6; 1990, ch.
855, § 2; T.C.A., § 68-53-104.]
Cross-References. Provisions not retroac-
tive, § 68-215-102.
68-215-105. Minimum requirements for tanks. — All petroleum under-
ground storage tanks shall at a minimum:
(1) Prevent releases due to structural failure for the operational life of the
tank;
(2) Be cathodically protected against corrosion, constructed of noncorrosive
material, steel clad with a noncorrosive material, or designed in a manner to
prevent the release or the threatened release of any petroleum substance; and
(3) The material used in construction or lining of the tank shall have com-
patibility between the substance stored in the petroleum underground storage
tank and the interior of the petroleum underground storage tank. [Acts 1988,
ch. 984, § 7; T.C.A., § 68-53-105.]
68-215-106. Notification as to tanks in use and tanks taken out of
operation — Certification. — (a)(1) Within one (1) year after the enactment
of this chapter, each owner of a petroleum underground storage tank in use on
July 1, 1988, shall notify the commissioner of the existence of such tank,
specifying the age, size, type, location, and uses of such tank. The commis-
sioner shall accept as formal notification the United States environmental
protection agency underground storage tank notification form filed with the
department by the owner of the petroleum underground storage tank before
July 1, 1988.
(2) For each petroleum underground storage tank taken out of operation
after January 1, 1974, the owner of such tank shall within one (1) year after
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rcaii*
.41 PETROLEUM UNDERGROUND STORAGE 68-215-106
July 1, 1988, notify the commissioner of the existence of such tanks (unless
the owner knows such tanks were removed from the ground). The owner of
petroleum underground storage tanks taken out of operation on or before
January 1, 1974, shall not be required to notify the commissioner. The com-
missioner shall accept as formal notification the United States environmental
protection agency underground storage tank notification form filed with the
department by the owner of the petroleum underground storage tank before
July 1, 1988.
(3) Notice under subdivision (a)(2) shall specify to the extent known to the
owner:
(A) The date the tank was taken out of operation;
(B) The age of the tank on the date taken out of operation;
(C) The size, type and location of the tank; and
(D) The type and quantity of petroleum substances left stored in such
tank on the date taken out of operation.
(4) Any owner who brings into use petroleum underground storage tanks
after the initial notification period specified under subdivision (a)(1) shall
notify the commissioner at least fifteen (15) days in advance of the date the
tank is installed for storage of petroleum substances, specifying the age, size,
type, location, and uses of such tank.
(5) Subdivisions (a)(l)-(3) shail not apply to tanks for which notice was
given pursuant to § 103(c) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
(6) Beginning thirty (30) days after the commissioner prescribes the form of
notice pursuant to subdivision (b)(2) and for twelve (12) months thereafter,
any person who deposits petroleum substances into a petroleum underground
storage tank shall reasonably notify the owner or operator of such tank of the
owner's notification requirements pursuant to this subsection.
(71* Beginning thirty (30) days after the board promulgates new tank perfor-
mance standards pursuant to this chapter, any person who sells a tank in-
tended to be used as a petroleum underground storage tank in Tennessee shall
notify the purchaser of such tank of the owner's notification requirements
pursuant to this subsection.
(b)(1) Within ninety (90) days after July 1, 1988, the commissioner shall
designate the appropriate division within the department to receive the notifi-
cation required by subdivision (a)(1), (2) or (3).
(2) Within ninety (90) days after July 1, 1988, the commissioner, in consul-
tation with state officials designated pursuant to subdivision (b)(1), and after
notice and opportunity for public comment, shall prescribe the form of the
notice and the information to be included in the notification under subdivision
(a)(1), t2) or (3).
(3) Any change in the status of the tanks at a petroleum underground
storage tank facility must be reported within thirty (30) days of such change.
This includes, but is not limited to, changes of ownership, upgrading or re-
placement of tanks and changes in service. Such reports shall be made using
an amended notification form. In the case of a sale of tanks, the seller must
submit the amended notification form and must also inform the buyer of the
notification requirement.
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68-215-107
ENVIRONMENTAL PROTECTION
642
(c)(1) The commissioner shall issue a certificate to the owner/operator of
each petroleum underground storage tank who has submitted his petroleum
underground storage tank notification forms. The certificate shall contain
pertinent information relative to that petroleum underground storage tank.
The certificate shall be issued annually by the commissioner. The certificate
for each petroleum underground storage tank at a facility must be conspicu-
ously posted at the facility.
(2) It is unlawful for any person to place or cause to be placed petroleum
substances in a petroleum underground storage tank without a certificate
required pursuant to subdivision (c)(1).
(3) The commissioner may revoke and remove the petroleum underground
storage tank certificate from any petroleum underground storage tank owner
or operator who violates any provision of this chapter, the rules and regula-
tions promulgated pursuant to this chapter, or any order issued by the com-
missioner or board. [Acts 1988, ch. 984, § 8; 1990, ch. 855, § 3; T.C.A.,
§ 68-53-106.]
Compiler's Notes. The Comprehensive En-
vironmental Response, Compensation and Lia-
bility Act of 1980, referred to in this section, is
codified primarily as 42 U.S.C. §§ 6911, 6911a,
9601 et seq.
Cross-References. Provisions not retroac-
tive, 3 68-215-102.
68-215-107. Supervision, inspection, and enforcement responsibili-
ties. — (a) The commissioner shall exercise general supervision over the re-
lease prevention, release detection, release correction, closure, and where ap-
plicable, post closure care of petroleum underground storage tanks through-
out the state. Such supervision shall apply to all features of the installation of
the petroleum underground storage tanks, the standards for permissible pe-
troleum underground storage tanks, release prevention requirements, release
detection requirements, release correction requirements, facility financial re-
sponsibility requirements, facility closure requirements, and facility post clo-
sure requirements which do or may affect the public health, safety or quality
of the environment and which do or may affect the proper storage of petro-
leum substances.
(b) The commissioner is authorized to issue an order to any responsible
party requiring such party to investigate, identify, contain and clean up,
including monitoring and maintenance, any petroleum substance sites which
pose or may pose a danger to public health, safety, or the environment be-
cause of release or threatened release of petroleum substances. Any person
failing, neglecting or refusing to comply with any final order after a hearing
shall be subject to the penalties provided in this chapter.
(c) In the event that any identified responsible party or parties are unable
or unwilling to provide for the investigation, identification, or for the reason-
able and safe containment and cleanup, including monitoring and mainte-
nance, pursuant to an order issued under this section, or no such liable party
can reasonably be identified by the commissioner, the commissioner may pro-
vide for such actions.
(d) If, at any time, the commissioner, after investigation, finds that a petro-
leum site constitutes an imminent, substantial danger to the public health,
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PETROLEUM UNDERGROUND STORAGE 68-215-107
safety or environment, the commissioner may undertake such actions as are
necessary to abate the imminent and substantial danger.
(e) For the purpose of developing or enforcing any rule or regulation autho-
rized by this chapter, or enforcing any requirement of this chapter or order
issued by the commissioner or board pursuant to this chapter, the commis-
sioner or the commissioner's agent is authorized to:
(1) Enter at reasonable times any establishment or other place where a
petroleum underground storage tank is located;
(2) Inspect and obtain samples of any petroleum substance contained in
such tank and allow for testing of samples by both the commissioner or the
commissioner's agent and the owner/operator;
13) Conduct monitoring or testing of the tanks, associated equipment, con-
tents, or surrounding soils, air, surface water or groundwater; and
(4) Require the owner/operator of a petroleum underground storage tank to
prove the petroleum underground storage tank is not leaking, if there has
been the release of petroleum substances in the area, including tightness
testing of petroleum underground storage tank if deemed necessary.
If) The board may promulgate and adopt such rules and regulations in
accordance with the provisions of the Uniform Administrative Procedures
Act, compiled in title 4, chapter 5, as are required elsewhere in this chapter or
are otherwise necessary or desirable to implement the provisions of this chap-
ter. Such rules and regulations shall include, but not be limited to: .
'1) Requirements for maintaining a leak detection system, an inventory
litrol system, together with tank testing, including a tank tightness testing
certification program if deemed necessary, or a comparable system or method
designated to identify releases in a manner consistent with the protection of
human health and environment;
12) Requirements for maintaining records of any monitoring or leak detec-
tion system or inventory control system or tank testing or comparable system;
(3) Requirements for reporting releases and corrective actions taken in re-
sponse to a release from a petroleum underground storage tank;
(4) Requirements for taking corrective action in response to a release from
a petroleum underground storage tank;
(5) Requirements for the closure of petroleum underground storage tanks to
prevent future releases of petroleum substances into the environment;
(6) Requirements that new petroleum underground storage tanks meet de-
sign standards promulgated by the board before such tanks may be installed;
17) Requirements that existing petroleum underground storage tanks ei-
ther be retrofitted to meet new petroleum tank standards or replaced with
new petroleum tanks over a scheduled time period;
iS)(A) Requirements for maintaining evidence of financial responsibility
for taking corrective action and compensating third parties for bodily injury
and property damage caused by sudden and nonsudden accidental releases
arising from operation of a petroleum underground storage tank, the mech-
anism by which the fund may provide relief of third party damages incurred
by the owner and/or operator at a petroleum site, and the mechanism by
which the fund may provide relief for the costs of corrective action at fund
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68-215-108 ENVIRONMENTAL PROTECTION 644
eligible sites exceeding the financial responsibility requirements of the
owner and/or operator at the petroleum site; and
(B) Requirements to authorize any class or category of petroleum under-
ground storage tank owners and/or operators to petition for changes in the
foregoing financial responsibility requirements pursuant to § 4-5-201. In
ruling on any request, the board may not allow the financial responsibility
requirements to be less stringent than the federal financial responsibility
requirements for enforcement;
(9) Requirements providing for the assessment and collection of fees as
provided in this chapter; and
(10) Provisions exempting certain classes of petroleum underground stor-
age tanks from certain parts of the regulations; provided, that such exemp-
tions do not make the regulations less stringent than federal law and regula-
tion.
(g)(1) The commissioner or board shall approve the clean-up plan only if it
assures that implementation of the plan will provide adequate protection of
human health, safety, and the environment. In making this determination,
the commissioner or board shall consider:
(A) The physical and chemical characteristics of petroleum, including its
toxicity, persistence, and potential for migration;
(B) The hydrogeologic characteristics of the petroleum site and the sur-
rounding land;
(C) The proximity, quality, and current and future uses of groundwater;
(D) An exposure assessment; and
(E) The proximity, quality, and current and future uses of surface waters.
(2) Upon approval of the clean-up plan, the owners and/or oporators shall
implement the plan and monitor, evaluate, and report the results of imple-
mentation, as required by the commissioner or board. [Acts 1988, ch. 984, § 9;
1990, ch. 855, § 4; T.C.A., § 68-53-107.]
Cross-References. Provisions not retroac-
tive. § 68-215-102.
68-215-108. Proprietary information. — The board shall establish pro-
cedures to ensure that information supplied to the department as required by
this chapter, and as defined as proprietary by regulation, is not revealed to
any person, except as provided in this section. Proprietary information shall
not include the name and address of the owner and/or operator of petroleum
underground storage tanks. Proprietary information may be utilized by the
commissioner, the board, the department, the United States environmental
protection agency, or any authorized representative of the commissioner or
board in connection with the responsibilities of the department or board pur-
suant to this chapter or as necessary to comply with federal law. [Acts 1988,
ch. 984, § 10; T.C.A., § 68-53-108.]
68-215-109. Annual fees — Failure to pay. — (a) The board shall levy
and collect annual fees from the owners and/or operators of petroleum under-
ground storage tanks containing petroleum substances. The board shall pro-
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645
PETROLEUM UNDERGROUND STORAGE
68-215-110
mulgate regulations stipulating which petroleum underground storage tanks
are subject to fees, the due date of such fees, and the amount of such fees,
annually in an amount not to exceed one hundred twenty-five dollars ($125)
per tank. The fee for each petroleum underground storage tank shall be one
hundred twenty-five dollars ($125) per tank starting April 30, 1990. This fee
shall be paid by the party designated in an agreement between the owner and
the operator of the petroleum underground storage tank.
(b) The board shall promulgate and adopt rules and regulations providing
for a fee based upon the financial requirements to operate the petroleum
underground storage tank fund established pursuant to this chapter. The fee
may be reviewed and revised as needed by the board based on changes in
anticipated fee collections and projected program or fund expenditures.
(c) Upon failure or refusal of an owner and/or operator of a petroleum un-
derground storage tank, subject to fees by regulation, to pay a fee lawfully
levied within a reasonable time allowed by the commissioner, the commis-
sioner may proceed in the chancery court of Davidson County to obtain judg-
t and seek execution of such judgment.
(d) Any person who fails or refuses to pay a lawfully levied fee or any part
of that fee by its due date shall be assessed a penalty of five percent (5%) of the
amount due, which shall accrue on the first day of delinquency and be added
thereto. Thereafter, on the last day of each month during which any part of
any fee or any prior accrued penalty remains unpaid, an additional five per-
ent (5%) of the then unpaid balance shall accrue and be added thereto. Noth-
ng in this section shall be construed as requiring the issuance of a commis-
sioner's order for the payment of a fee or a late payment penalty. [Acts 1988,
ch. 984, § 11; 1990, ch. 1012, § 8; T.C.A., § 68-53-109.]
Section to Section References. This sec-
is referred to in 9 68-215-110.
68-215-110. Petroleum underground storage tank fund — Environ-
mental assurance fee. — (a) There is hereby established within the general
fund a special agency account to be known as the "petroleum underground
storage tank fund" referred to in this chapter as the "fund."
(b) All fees, civil penalties and damages collected pursuant to this chapter
shall be deposited in the fund. Any deposits to the fund which would result in
the balance of the fund exceeding fifty million dollars ($50,000,000) shall be
transferred to the highway fund.
(c) Any unencumbered funds and any unexpended balance of the fund re-
maining at the end of any fiscal year shall not revert to the general fund, but
shall be carried forward until expended in accordance with the provisions of
this chapter.
(d) Interest accruing on investments and deposits of the fund shall be re-
turned to the fund and remain a part of the fund.
(e) For fiscal years subsequent to 1988-1989, the board shall, by regulation,
adjust underground storage tank fees to a level necessary to maintain a mini-
mum unobligated balance of two million dollars ($2,000,000) and a maximum
unobligated balance of fifty million dollars ($50,000,000) in the fund.
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68-215-111
ENVIRONMENTAL PROTECTION
646
(f) There is hereby appropriated, subject to revenues provided pursuant to
§ 68-215-109(a), the sum of three million dollars ($3,000,000) for fiscal year
1988-1989; and for fiscal years thereafter, there is appropriated a sum suffi-
cient from the fund to provide for the administrative costs of the underground
storage tank program.
(g) Moneys in the account shall be invested by the state treasurer for the
benefit of the fund pursuant to § 9-4-603. The fund shall be administered by
the commissioner.
(h)(1) To provide for the stability of the petroleum underground storage
tank fund, there is hereby levied, in addition to all other fees or taxes, an
environmental assurance fee of four tenths of one cent (0.4) per gallon on each
gallon of petroleum products imported into the state and petroleum products
manufactured in this state. For the purpose of this levy, petroleum products
are those defined in § 67-3-903.
(2) The environmental assurance fee is for the purpose of assuring suffi-
cient funding of emergency, preventive, or corrective actions necessary when
public health or safety is, or potentially may be, threatened from any release
of regulated substances from an underground storage tank or the use and
service thereof.
(3) This environmental assurance fee? shall be paid and remitted to the
department of revenue for the board on a monthly basis at the same time and
in the same manner that the special tax on petroleum products is paid and
remitted pursuant to title 67, chapter 3, part 9. [Acts 1988, ch. 984, § 12;
1990, ch. 1012, §§ 1-3; 1991, ch. 68, §§ 1, 2; T.C.A., § 68-53-110.]
Section to Section References. This sec-
tion is referred to in §§ 67-3-904, 67-3-905.
68-215-111. Use cf fund. — (a) The fund shall be available to the board
and the commissioner for expenditures for the purposes of providing for the
investigation, identification, and for the reasonable and safe cleanup, includ-
ing monitoring and maintenance of petroleum sites within the state as pro-
vided in this chapter.
(b) The fund may also be used by the commissioner as a source of federal
matching funds for the state in the petroleum underground storage tank pro-
gram.
(c) The commissioner may enter into contracts and use the fund for those
purposes directly associated with identification, investigation, containment
and cleanup, including monitoring and maintenance prescribed above, includ-
ing;
(1) Hiring consultants and personnel;
(2) Purchase, lease or rental of necessary equipment; and
(3) Other necessary expenses.
(d) Such fund may be used to provide funding of at least seven hundred fifty
thousand dollars ($750,000) for the administrative costs of the underground
storage tank program, including twenty (20) new positions, equipment, labo-
ratory costs, and other expenses as reasonably incurred by the program for
fiscal year 1988-1989. Funding levels in subsequent years shall be subject to
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647
PETROLEUM UNDERGROUND STORAGE
68-215-111
review of the board and shall be included in the department's budget request
to the general assembly.
(e) Such fund may be used to provide a mechanism to assist with the finan-
cial responsibility requirements for owners and/or operators of petroleum un-
derground storage tanks, including cleanup of contamination and third party
claims due to bodily injury and/or property damage caused by leaking petro-
leum underground storage tanks.
(1) The fund shall provide for cleanup of contamination caused by leaking
petroleum underground storage tanks whose owners and/or operators have
paid the required petroleum underground storage tank fee. The board shall
promulgate and adopt rules and regulations stipulating the initial owner
and/or operator financial responsibility requirements for cleanup before the
owner and/or operator is eligible to receive financial assistance from the fund.
The initial owner and/or operator financial responsibility for cleanup for any
petroleum site for an occurrence shall be as follows:
Number of tanks Amt. of responsibility
1 to 12 $10,000
13 to 999 20,000
1,000 and above 50,000
"He fund shall be responsible for cleanup costs above the entry level to the
id in an amount not to exceed one million dollars ($1,000,000). The fund
^nall be responsible for cleanup of contamination due to leaking petroleum
underground storage tanks on a per site per occurrence basis.
(2)(A) The fund shall provide coverage for third-party claims involving bod-
ily injury and/or property damage caused by leaking petroleum under-
ground storage tanks whose owners and/or operators have paid the required
petroleum underground storage tank fee. The board shall promulgate and
adopt rules and regulations stipulating the initial owner and/or operator
financial responsibility requirements for third-party claims involving bod-
ily injury anchor property damage before the owner and/or operator is eligi-
ble to receive expenditures from the fund.
(B) The initial owner's and/or operator's financial responsibility for third
party claims for any petroleum site for an occurrence shall be as follows:
Number of tanks Amt. of responsibility
1 to 12 $10,000
not less than nor more than
13 to 999 $25,000 $50,000
1,000 and above 150,000 300,000
(C) The board shall review the entry level to the fund annually and will
set the entry level based on the median award for settlement of third party
claims involving bodily injury and/or property damage caused by leaking
petroleum underground storage tanks in Tennessee.
(D) The fund shall be responsible for court awards involving third party
claims above the entry level into the fund in an amount not to exceed one
million dollars ($1,000,000). The fund shall be responsible for third party
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68-215-111
ENVIRONMENTAL PROTECTION
648
claims involving bodily injury and/or property damage caused by leaking
petroleum underground storage tanks on a per site per occurrence basis. All
claims against the fund for third party damages must have been awarded in
a court of suitable jurisdiction.
(3) Neither the fund nor the initial level of owner and/or operator financial
responsibility for cleanup shall be used for the repair, replacement, or mainte-
nance of petroleum underground storage tanks or property improvement on
which the petroleum underground storage tanks are located, including, but
not limited to: i
(A) Underground storage tank repair;
(B) Underground storage tank replacement;
(C) Repair or maintenance of associated lines; and
(D) Replacement of asphalt or concrete.
(4) In addition to any other applications, the financial responsibility limits
set forth in this subsection shall also apply to occurrences involving local
governmental agencies which were discovered after April 11, 1990, the date of
final legislative action on Acts 1990, chapter 1012, but before April 30, 1990,
the date of gubernatorial approval of Acts 1990, chapter 1012.
(f) All claims against the fund are clearly obligations only of the fund and
not of the state, and any amounts required; to be paid under this part are
subject to the availability of sufficient moneys in the fund. The full faith and
credit of the state shall not in any way be pledged or considered to be avail-
able to guarantee payment from such fund.
(g)(1) Notwithstanding any provision of this section to the contrary, to
achieve parity in reimbursement of claims under this chapter, claims which
have a deductible level greater than ten thousand dollars ($10,000) shall be
reimbursed only when the net value of the fund exceeds twency-eight million
dollars (§28,000,000) for three (3) consecutive months. For the purposes of this
section, "'net value" is defined as cash balance minus any submitted claims,
regardless of their status. Any payments due under this subsection shall be
discontinued when the net fund balance is less than twenty-eight million
dollars ($28,000,000).
(2) Reimbursements made pursuant to this subsection shall be made as
provided by subdivisions (3)(A)-(C). Payments shall be made in the same
sequence in which claims are received for such entry level.
(3) Payments shall be made in the following order:
(A) Payments to reduce the entry level from seventy-five thousand dol-
lars ($75,000) to fifty thousand dollars ($50,000);
(B) Payments to reduce the entry level from fifty thousand dollars
($50,000) to twenty thousand dollars ($20,000); and
(C) Payments to reduce the entry level from twenty thousand dollars
($20,000) to ten thousand dollars ($10,000).
(4) Prior to any reimbursements made pursuant to this section, the commis-
sioner of environment and conservation shall certify in writing to the commisr
sioner of finance and administration and the comptroller of the treasury that
the fund balance fully meets the provisions of this section. Such reimburse-
ments shall be subject to the approval of the commissioner of finance and
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49
PETROLEUM UNDERGROUND STORAGE
68-215-112
.dministration. [Acts 1988, ch. 984, § 13; 1990, ch. 855, § 5; 1990, ch. 1012,
§ 4-6; 1991, ch. 483, § 1; T.C.A., § 68-53-111; Acts 1992, ch. 906, § 1.]
Compiler's Notes. Acts 1992. ch. 906, § 2
rovided that the amendment by that act ap-
lies to all'claims received after July 1, 1988.
Cross-References. Provisions not retroac-
tive, § 68-215-102.
68-215-112. Petroleum underground storage tank board. — (a) There
s c ;ed a petroleum underground storage tank board which shall be com-
j " of nine C9) members as follows:
(1) One (1) person who is employed by a private business concern with
:xperience in management of petroleum to be appointed by the governor from
i list of three (3) names submitted by the Tennessee Association of Business;
(2) One (1) person who is employed by a private petroleum concern with
experience in the management of petroleum to be appointed by the governor
"rom a list of three (3) names submitted by the Tennessee Petroleum Council;
(3) One (1) person who is employed by a private petroleum concern with
experience in the management of petroleum to be appointed by the governor
Tr i a list of three (3) names submitted by the Tennessee Oil Marketers
Association;
(4) One (1) person who is employed by a private petroleum concern with
experience in the management of petroleum to be appointed by the governor
fr ~ i list of three (3) names submitted by the Tennessee Retail Gasoline
I I
D "s Association;
(5) One ll) person who is a representative of environmental interests
knowledgeable of the management of petroleum products and/or hazardous
substances to be appointed by the governor from a list of three (3) names
submitted by the Tennessee Environmental Council;
(6) One (1) person who is to He appointed by the governor from a list of
three (3) names submitted by the Tennessee Municipal League;
(7) One U) person shall be an ex officio member and shall be the commis-
sioner of environment and conservation or the commissioner's designee;
tS) Two (2) citizens, to be appointed by the governor, who are consumers of
petroleum products and are not affiliated with the Tennessee Association of
B '.r the Tennessee Petroleum Council, the Tennessee Oil Marketers
Association, the Tennessee Retail Gasoline Dealers Association, the Tennes-
see Environmental Council, or the Tennessee Municipal League;
(9) The director, or the director's designee, of the division designated as
ponsible for the petroleum underground storage tank program shall serve
as the technical secretary of the board but shall have no vote at board meet-
ings; and
110) If the governor does not choose to appoint one (1) of the persons recom-
mended to the governor under the terms of subdivisions (a)(l)-(5) or (6), the
appropriate organization(s) shall submit new lists until such appointment is
made.
(b) The members appointed by the governor shall serve four-year terms and
until their successors are appointed; provided, that the first appointments
ie as follows: The representatives named in subdivisions (a)(2) and (6)
-------
68-215-113
ENVIRONMENTAL PROTECTION
650
shall be appointed for a term of one (1) year, the representatives named in
subdivisions (a)(3) and (5) shall be appointed for a term of two (2) years, the
representative named in subdivision (a)(4) shall be appointed for a term of
three (3) years, and the representative named in subdivision (a)(1) shall be
appointed for a term of four (4) years.
The members named in subdivision (a)(8) shall be appointed for a term of
three (3) years.
(c) All vacancies in appointed positions shall be filled by the governor from
the recommendations of the appropriate organizations in the same manner as
the original appointment to serve the remainder of the unexpired term. [Acts
1988, ch. 984, § 14; T.C.A., § 68-53-112.]
Compiler's Notes. The petroleum under- Section to Section References. This sec-
ground storage tank board, created by this sec- tion is referred to in § 4-29-220.
tion, terminates June 30, 1999. See
§§ 4-29-112, 4-29-220.
68-215-113. Public hearings and meetings of board — Compensa-
tion. — (a) Reasonable notice of any public hearing shall be given before the
date of such hearing and shall state the date, time, place of hearing, and
subject of the hearing. Any person who desires to be heard relative to petro-
leum underground storage tank matters kt any such public hearing shall give
notice thereof in writing to the board on or before the First date set for the
hearing. The board is authorized to set reasonable time limits for the oral
presentation of views by any person at any such public hearing.
(b) After opportunity for notice and comment, the board shall promulgate
rules and regulations governing petroleum underground storage tanks and
shall make such modifications or amendments as the board deems necessary.
It shall also be the duty of the board to act as a board of appeals as provided in
this chapter.
(c) The board shall hold at least two (2) regular meetings each calendar
year at a place and time to be fixed by the board. The board shall also meet at
the request of the commissioner or the chairperson of the board, or upon a
written request of three (3) members of the board. Five (5) members constitute
a quorum, and a quorum may act for the board in all matters. The board shall
select annually a chairperson from its members. The department shall provide
all necessary staff for the board.
(d) Each member of the board, other than the ex officio member, shall be
entitled to be paid fifty dollars ($50.00) for each day actually and necessarily
employed in the discharge of official duties, and each member shall be entitled
to receive the amount of such member's travel and other necessary expenses
actually incurred while engaged in the performance of any official duties
when so authorized by the board. Such expenses shall be reimbursed in accor-
dance with the comprehensive state travel regulations promulgated by the
commissioner of finance and administration and approved by the attorney
general and reporter.
(e) No member of the board shall participate in making any decision on a
certificate or upon a case in which the municipality or firm, which that mem-
ber represents, or by which that member is employed, or in which that mem-
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651
PETROLEUM UNDERGROUND STORAGE
68-215-115
ber has a direct substantial financial interest, is involved. [Acts 1988, ch. 984,
§ 15; T.C.A., § 68-53-113.]
68-215-114. Order for correction — Liability. — (a) When the commis-
sioner finds upon investigation that any provisions of this chapter are not
being carried out, and that effective measures are not being taken to comply
with provisions of this chapter, the commissioner may issue an order for
correction to the responsible person, and this order shall be complied with
within the time limit specified in the order. Such order shall be made by
personal service or shall be sent by certified mail. Investigations made in
accordance with this section may be made on the initiative of the commis-
sioner, including any violation of this chapter or regulations promulgated
pursuant to this chapter. Prior to the issuance of any order or the execution of
any other enforcement action, the commissioner or the commissioner's desig-
nee may request the presence of an alleged violator of this chapter to a meet-
ing to show cause why enforcement action ought not be taken by the depart-
ment. Any person may request a meeting with the department to discuss
matters pertaining to petroleum underground storage tanks.
(b) Responsible parties shall be liable to the state for costs of investigation,
identification, containment and cleanup, including monitoring and mainte-
nance, as provided herein. Owners and/or operators of petroleum underground
'orage tanks who have paid the required fees shall be liable for all costs up to
try level into the fund. All other owners and/or operators of petroleum
underground storage tanks shall be liable for all costs. [Acts 1988, ch. 984,
§ 16; T.C.A., § 68-53-114.]
Section to Section References. Sections
68-215-114 — 68-215-117 are referred to in
§ 68-215-118.
68-215-115. Recovery of costs by state — Apportionment of liability.
— (a) Making use of any and ail appropriate existing state legal remedies, the
commissioner may commence court action to recover the amount expended by
the state from any and ail responsible parties for each site investigated, iden-
tified, contained or cleaned up, including up to the limits of financial responsi-
bility for owners and/or operators of petroleum underground storage tanks
covered by the fund and the entire amount from owners and/or operators of
petroleum underground storage tanks not covered by the fund.
(b) In any action under this chapter or any other law, no responsible party
shall be liable for more than that party's apportioned share of the amount
expended from the fund for such site. The responsible party has the burden of
proving such party's apportioned share. Such apportioned share shall be based
solely on the liable party's portion of the total volume of the petroleum at the
petroleum site at the time of action under this chapter. Any expenditures
required by the provisions of this chapter made by a responsible party (before
or after suit) shall be credited toward any such apportioned share.
(c) In no event shall the total moneys recovered from the responsible party
r parties exceed the total expenditure from the fund for each site.
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68-215-116 ENVIRONMENTAL PROTECTION 652
(d) Any party found liable for any costs or expenditures recoverable under
this chapter who establishes by a preponderance of evidence that only a por-
tion of such costs or expenditures axe attributable to such party's actions shall
be required to pay only for such portion.
(e) If the trier of the fact finds evidence insufficient to establish such party's
portion of costs or expenditures in such a cost recovery, the court shall appor-
tion such costs or expenditures among the defendants, to the extent practica-
ble, according to equitable principles. [Acts 1988, ch. 984v § 17; T.C.A.,
§ 68-53-115.]
Section to Section References. This sec-
tion is referred to in § 68-215-1L6.
68-215-116. Failure to take proper action. — Any responsible party
who fails without sufficient cause to properly provide for removal of petroleum
or remedial action upon order of the commissioner pursuant to this chapter
may be liable to the state for a penalty in an amount equal to one hundred
fifty percent (150%) of the amount of any costs incurred by the fund as a result
of such failure to take proper action. The commissioner may recover this
penalty in an action commenced under § 68-215-115 or in a separate civil
action, and such penalty shall be in addition to any costs recovered from such
responsible party pursuant to this chapter. Any penalty awarded pursuant to
this section shall be deposited into the fund. [Acts 1988, ch. 984, § 18; T.C.A.,
§ 68-53-116.]
68-215-117. Immunity from liability — Exceptions. — No person shall
be liable under this chapter for damages as a result of actions taken or omit-
ted in the course of rendering care, assistance or advice at the direction of an
on-scene coordinator appointed by the commissioner, with respect to an inci-
dent creating a danger to the public health or welfare or the environment as a
result of any release of petroleum substances or the threat thereof. This sec-
tion shall not preclude liability for damages as the result of gross negligence
or intentional misconduct on the part of such person or for reckless, willful, or
wanton misconduct. [Acts 1988, ch. 984, § 19; T.C.A., § 68-53-117.]
68-215-118. Compliance by governmental entities. — Each depart-
ment, agency or instrumentality of the executive, legislative, and judicial
branches of the federal government and the state government shall be subject
to, and comply with, this chapter in the same manner and to the same extent,
both procedurally and substantively, as any non-governmental entity, includ-
ing liability under §§ 68-215-114 — 68-215-117. [Acts 1988, ch. 984, § 20;
T.C.A., § 68-53-118.]
68-215-119. Review of orders and revocations. — (a)(1) Any person
against whom an order is issued may secure a review of such order by filing
with the commissioner a written petition, setting forth the grounds and rea-
sons for such person's objections and asking for a hearing in the matter in-
volved before the board. Any such order shall become final and not subject to
-------
PETROLEUM UNDERGROUND STORAGE
68-215-120
review unless the person or persons therein file such petition for hearing
before the board no later than thirty (30) days after the date such order is
served.
(2) Any owner of an underground storage tank certificate revoked by the
c iriissioner, in any manner other than that for summary suspension under
the Uniform Administrative Procedures Act, compiled in title 4, chapter 5,
may secure a review of the commissioner's revocation by filing with the com-
missioner a written petition setting forth the grounds and reasons for such
owner's objections to the commissioner's revocation and requesting a hearing
before the board. Any revocation of a certificate, other than a summary sus-
sion, shall become final and not subject to review unless such petition for a
1 ring before the board is filed no later than thirty (30) days after notice of
revocation is served.
(b) The hearing before the board shall be in accordance with the rules and
procedures adopted by the board pursuant to the Uniform Administrative
Procedures Act, compiled in title 4, chapter 5.
(c) An appeal may be taken from any final order or other final determina-
tion of the board by any party, including the department, who is or may be
adversely affected thereby to the chancery court of Davidson County. The
chancery court of Davidson County shall have exclusive original jurisdiction
of all review proceedings instituted under the authority and provisions of this
chapter; provided, that the judicial review of any final decision of the board
shall be made pursuant to the procedures established and set forth in the
Uniform Administrative Procedures Act, compiled in title 4, chapter 5. [Acts
1988, ch. 984, § 21; T.C.A., § 68-53-119.]
Section to Section References. This sec-
is referred to in § 68-215-121.
68-215-120. Criminal penalties — Suspension of certificates. —
(a) Any person who endangers the public health or safety by willfully and
wantonly releasing petroleum in violation of this chapter, rules, regulations
or orders of the commissioner or board commits a Class A misdemeanor. Each
day of continued violation constitutes a separate punishable offense.
(b) In addition to such penalties, the department, court or board may sus-
pend the certificate to store petroleum substances in a petroleum underground
storage tank at the petroleum site at which the violations occurred if the
owner of such site has been convicted of two (2) such misdemeanors as defined
in subsection (a) within a three-year period. No person who has had such
person's certificate suspended pursuant to this subsection shall be eligible to
apply for another certificate at the same site until the period of time for which
the certificate was suspended has expired. Nothing in this subsection shall
preclude the suspension, revocation, or withdrawal of a certificate by the
commissioner or board when such action is authorized by law. [Acts 1988, ch.
984, § 22; T.C.A., § 68-53-120; Acts 1989, ch. 591, §§ 1, 6.]
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68-215-121
ENVIRONMENTAL PROTECTION
654
Cross-References. Penalty for Class A mis-
demeanor, § 40-35-Lll.
68-215-121. Civil penalty — Assessment. — (a)(1) Any person who vio-
lates or fails to comply with any provision of this chapter, any order of the
commissioner or board, any rule, regulation, or standard pursuant to this
chapter shall be subject to a civil penalty not to exceed ten thousand dollars
($10,000) per day for each day of violation. This civil penalty may be assessed
by the commissioner, the board or the court. Each day such violation con-
tinues constitutes a separate punishable offense, and such person is also liable
for any damages to the state resulting therefrom.
(b) Any civil penalty or damages shall be assessed in the following manner:
(1) The commissioner may issue an assessment against any person respon-
sible for the violation or damages. Such person shall receive notice of such
assessment by certified mail, return receipt requested;
(2) Any person against whom an assessment has been issued may petition
the board for a review of the assessment;
(3) The manner of review for an assessment shall be the same as that for an
order as set out in § 68-215-119;
(4) If a petition for review of the assessment is not filed within thirty (30)
days after the date the assessment is served, the violator shall be deemed to
have consenced to the assessment and it shall become final;
(5) Whenever any assessment has become final because of a person's failure
to appeal either the commissioner's assessment or the board's order, the com-
missioner may apply to the appropriate court for a judgment and seek execu-
tion on such judgment in a summary proceeding. The court, in such proceed-
ings, shall treat the failure to appeal such assessment as confession of judg-
ment in the amount of the assessment; and
(6) The commissioner may institute proceedings for assessment in the
chancery court of Davidson County or in the chancery court of the county in
which all or part of the violation or failure to comply occurred.
(c) In assessing a civil penalty, the following factors may be considered:
(1) The harm done to the public health and/or the environment;
(2) The economic benefit gained by the violator through noncompliance;
(3) The amount of effort put forth by the violator to obtain compliance; and
(4) Any unusual or extraordinary enforcement costs incurred by the com-
missioner, including compensation for loss or destruction of wildlife, fish, and
any aquatic life resulting from the violation.
(d) Damages to the state may include any reasonable expenses incurred in
investigating and enforcing violations of this chapter and in restoring the air,
water, land, and other property, including the replacement of animal, plant,
and aquatic life destroyed due to the violation.
(e) Any person qualified under the Tennessee Rules of Civil Procedure may
intervene in any court action brought by the commissioner or board pursuant
to this chapter. {Acts 1988, ch. 984, § 23; T.C.A., § 68-53-121.]
68-215-122. Injunctions. — In addition to the penalties provided else-
where in this chapter, the commissioner may cause the enforcement of any
-------
ffHlff jBWTWIh m rfSnffVUC V'iTf *,** rtfi m
I
655
PETROLEUM UNDERGROUND STORAGE
68-215-124
orders, rules, or regulations issued by the commissioner or the board to carry
out the provisions of this chapter by instituting legal proceedings to enjoin the
actual or threatened violation of the provisions of this chapter, and the order,
and regulations of the commissioner or orders of the board in the chancery
court of Davidson County or in the county where all or part of the violation
has or is about to occur, in the name of the department, by a staff attorney and
under the supervision of the attorney general and reporter. In such suits, the
court may grant temporary or permanent injunctions or restraining orders.
Such proceedings will not be tried by jury. [Acts 1988, ch. 984, § 24; T.C.A.,
§ 68-53-122.]
68-215-123. Complaints — Hearings — Appeals. — (a) Any person
may file with the commissioner or board a signed sworn complaint against
any person allegedly violating any provisions of this chapter. Unless the com-
missioner or board determines that such complaint is duplicitous or frivolous,
the commissioner or board shall immediately serve a copy of it upon the
person or persons named therein, promptly investigate the allegations con-
tained therein and shall notify the alleged violator what action, if any, the
commissioner or board will take. In all cases, the commissioner or board shall
notify the complainant of the commissioner's or board's action or determina-
tion within ninety (90) days from the date of the commissioner's or board's
Nceipt of the written complaint. If either the complainant or the alleged
jlator believes the commissioner's or board's action or determination is or
will be inadequate or too severe, such complainant or alleged violator may
appeal to the board for a hearing. Such appeal must be made within thirty
(30) days after receipt of the notification sent by the commissioner or board. If
the commissioner fails to take the action stated in the commissioner's notifica-
tion, the complainant may make an appeal to the board within thirty (30)
days from the time at which the complainant knows or has reason to know of
such failure. The department shall not be obligated to assist a complainant in
gathering information or making investigations or to provide counsel for the
purpose of drawing the complainant's complaint.
(b) The board, department, its officials and employees acting in their offi-
cial capacity shall not be considered "persons" pursuant to this section. [Acts
1988, ch. 984, § 25; T.C.A., § 68-53-123.]
68-215-124. Exemptions. — Exempted from the provisions of this chapter
are:
(1) Septic tanks;
(2) Farm or residential tanks of one thousand one hundred (1,100) gallons
or less used for storing motor fuel for noncommercial purposes;
(3) Tanks used for storing heating oil for consumption on the premises
where stored;
(4) Pipeline facilities (including gathering lines) regulated under:
(A) The Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. App. § 1671
et seq.;
(B) The Hazardous Liquid Pipeline Safety Act of 1979, 49 U.S.C. App.
§ 2001 et seq.; or
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68-215-125
ENVIRONMENTAL PROTECTION
656
(C) State laws comparable to the provisions of the law referred to in
subdivision (4)(A) or (B) if it is an intrastate pipeline;
(5) Surface impoundments, pits, ponds, or lagoons;
(6) Storm water or waste water collection systems;
(7) Flow-through process tanks;
(8) Liquid traps or associated gathering lines directly related to oil or gas
production and gathering operations;
(9) Petroleum 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; and
(10) Pipes or connections connected to exempted tanks. [Acts 1988, ch. 984,
§ 4; T.C.A., § 68-53-124.]
68-215-125. Fund not deemed to be insurance. — Notwithstanding any
other provisions of law to the contrary, the Tennessee comprehensive under-
ground storage tank fund shall not be considered an insurance company or
insurer under the laws of this state and shall not be a member of nor be
entitled to claim against the Tennessee insurance guaranty association cre-
ated under title 56, chapter 12. [Acts 1988, ch. 984, § 27; T.C.A., § 68-53-125.]
68-215-126. Preemption of local regulation — Exception. — The Ten-
nessee Petroleum Underground Storage Tank Act and the regulations pro-
mulgated pursuant to this chapcer shall take precedence over all existing
county, city, and/or municipal laws and/or regulations concerning petroleum
underground storage tanks, except in situations where local laws/regulations
are both more stringent and in effect on July 1, 1988. [Acts 1988, ch. 984,
§ 28; T.C.A., § 68-53-126.]
68-215-127. Exclusivity of provisions. — Notwithstanding any provi-
sion of law to the contrary, all releases of petroleum or petroleum products
from petroleum underground storage tanks shall be solely and exclusively
regulated pursuant to the provisions of this chapter and rules and regulations
promulgated to implement the provisions of this chapter. [Acts 1988, ch. 984,
§ 29; T.C.A., § 68-53-127.]
68-215-128. Evaluation of program in 1995 — Report to general as-
sembly. — The department shall, during 1995, reevaluate the petroleum
underground storage tank program pursuant to the provisions of this part and
report its findings and recommendations to the general assembly on or before
December 31, 1995. [Acts 1990, ch. 1012, § 7; T.C.A., § 68-53-128.]
CHAPTERS 216-220
[RESERVED]
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RULES
OF
THE DEPARTMENT OF HEALTH AND ENVIRONMENT
DIVISION OF UNDERGROUND STORAGE TANKS
CHAPTER 1200—1—15
UNDERGROUND STORAGE TANK PROGRAM
TABLE OF CONTENTS
1200—1—15—.01 Program Scope and Minimum Requirement! for Tanks
1200—1—15—.02 UST Systems: Design, Construction, Installation
and Notification
1200—1 —15—.03 General Operating Requirements
1200—1—15—.04 Release Detection
1200—1—15—.05 Release Reporting, Investigation, and Confirmation
1200—1—15—.06 Release Response and Corrective Action for UST
Systems Containing Petroleum
1200—1—15—.07
1200—1—15—.08
1200-1-15-.09
1200-1-15—10
1200—1—15—.11
Out-of-Service UST Systems and Closure
Financial Responsibility
Administrative Guidelines and Procedures for
the Tennessee Petroleum Underground
Storage Tank Fund
Fee Collection and Certificate Issuance
Regulations
Underground Storage Tank Program
1200—1—15—.01 PROGRAM SCOPE AND MINIMUM REQUIREMENTS FOR TANKS.
(1) Applicability.
(a) The requirements of this chapter apply to all owners and operators of an UST system as defined in
rule 1200—1—15—.01(3) except as otherwise provided in subparagraph (b) and (c) of rule
1200—1—15—.01(1).
Any new UST systems listed in subparagraph (b) of rule 1200—1—15—.01(1) must meet the re-
quirements of rule 1200—I —15—.01(2).
(b) Deferrals. Rules 1200—1 — 15—.02 through 1200—1 — 15—.05 and 1200—1 — 15—.07 through
1200—1 —15—.11 do not apply to any of the following types of UST systems:
1. Wastewater treatment tank systems;
2. Any UST systems containing radioactive material that are regulated under the Atomic Energy
Act of 1954 (42 USC 2011 and following);
3. 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;
4. Airport hydrant fuel distribution systems; and
5. UST systems with field-constructed tanks.
6. Equipment or machinery that contains petroleum for operational purposes such as hydraulic
lift tanks and electrical equipment tanks.
7. Any UST system whose capacity is 110 gallons or less.
8. Any UST system that contains a de minimis concentration of petroleum.
9. Any emergency spill or overflow containment UST system that is expeditiously emptied after use.
(c) Deferrals. Rule 1200—1—15—.04 does not apply to any UST system that stores fuel solely for use
by emergency power generators.
(2) Minimum Requirements for Tanks.
(a) No person may install an UST system for the purpose of storing petroleum unless the UST system
(whether of single or double-wall construction):
August, 1991 (Revised)
84.192
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1-15
(RuJc 1200—1—15—.01, continued)
1. Wilt prevent releases due to corrosion or structural failure for the operational life of the UST
system;
2. Is cathodically protected against corrosion, constructed of noncorrodible material, steel clad
with a noncorrodible material, or designed in a manner to prevent the release or threatened release
of any petroleum; and
3. Is constructed or lined with material that is compatible with the petroleum.
(b) Notwithstanding subparagraph (a) of this paragraph, an 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. Owners and operators must maintain
records that demonstrate compliance with the requirements of this subparagraph for the remaining
life of the tank.
(Note: The National Association of Corrosion Engineers Standard RP—02—85 (March 19M5) Con-
trol of Externa! Corrosion on Metallic Buried, Partially Buried, or Submerged Liquid Storage Systems,
may be referred to for additional information.]
(3) Definilions.
(a) "Abovcground release" means any release to the surface of the land or to surface water. This in-
cludes, but is not limited to, releases from the above-ground portion of an UST system and abo cground
releases associated with overfills and transfer operations as the petroleum moves to or from an UST
system.
(b) "Ancillary equipment" means any devices including, but not limited to, such devices as pi ring, fit-
tings, flanges, valves, and pumps used to distribute, meter, or control the flow of petroleun to and
from an UST.
(c) "Asymptotic level" means a graphical representation of the level of contaminant remaining in soil
and/or ground water, where the y-axis of the graph indicates contaminant level and the x-axis r :presents
length of treatment. Samples of the soil and/or ground water shall be taken quarterly. After the slope
of the graph approximates the slope of the x-axis, using the data from four consecutive quarters,
an asymptotic level of treatment would have been reached; provided that the contaminant treatment
system has been properly designed and operated.
(d) "Bedrock" means any rock, solid and continuous, which is exposed at the surface of the earth or
overlain by unconsolidated material.
(e) "Belowground release" means any release to the subsurface of the land or to ground witer. 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 j etroleum
movds to or from an underground storage tank.
(0 "Beneath the surface of the ground" means beneath the ground surface or otherwise covered with
earthen materials.
(g) "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.
April, 1990 (Revised)
84.193
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.01, continued)
(h) "Cathodic protection tester" means a person who can demonstrate an understanding of the prin-
ciples 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 must have education and
experience in soil resistivity, stray current, structure-to-soil potential, and component electrical isola-
tion measurements of buried metal piping and tank systems.
(i) "CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended.
(j) "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 condi-
tions likely to be encountered in the UST.
(k) "Connected piping" means all underground piping including valves, elbows, joints, flanges, and flexible
connectors attached to a tank system through which petroleum flows. 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.
(1) "Consumption" with respect to heating oil means consumed on the premises where stored.
(m) "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 submerg-
ed metal piping systems and metal tanks. Such a person must submit documentation for review by
the Division that they have accreditation or certification as a corrosion specialist or senior corrosion
technologist by the National Association of Corrosion Engineers or have education and a minimum
of 4 years responsible charge work experience in the corrosion field. If it is determined by the Divi-
sion that a person has sufficient experience and education to be qualified to take responsible charge
in corrosion control of buried or submerged metal piping systems and metal tanks, then that person
shall be classified by the Division as a Corrosion Expert for the purposes of this rule.
(n) "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).
(o) "Division" means the Division designated by the Commissioner of the Department of Health and
Environment as the agency to implement the Underground Storage Tank Program in Tennessee.
(p) "Drinking water supply" means any aquifer or water source whose chemical characteristics meet the
primary and secondary drinking water standards as defined under rule 1200—5—1 and provides a
yield of at least one-half gallon per minute. This shall also include any water supply used for drinking
by the citizens of the state.
(q) "Electrical equipment" means underground equipment that contains dielectric fluid that is necessary
for the operation of equipment such as transformers and buried electrical cable.
(r) "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.
(s) "Existing lank system" means a tank system used to contain an accumulation of petroleum or for
which installation had commenced on or before December 22, 1988. Installation is considered to have
commenced if:
April, 1990 (Revised)
84.194
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.01, continued)
1. the owner or operator has obtained ajl federal, state, and local approvals or permits necessary
to begin physical construction of the site or installation of the tank system; and if,
2. (i) . cither a continuous on-site physical construction or installation program has begun; or,
(ii) 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.
(l) "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.
(u) "Flow-through process tank" means a tank whose principle use is not for storage but is primarily
used in the manufacture of a product or in a treatment process. Flow-through process tanks form
an integral part of a production process through which there is a steady, variable, recurring, or inter-
mittent 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 th.. production process
or for the storage of finished products or by-products from the production process.
(v) "Free product" refers to petroleum that is present as a nonaqueous phase liquid (e.g., liquid not dissolv-
ed in water.)
(w) "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.
(x) "Ground water" means water below the land surface in a lone of saturation.
(y) "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.
(z) "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.
(aa) "Liquid trap" means sumps, well cellars, and other traps used in association with oil and gas produc-
tion, gathering, and extraction operations (including gas production plants), for the purpose of col-
lecting 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.
(bb) "Maintenance" means the normal operational upkeep to prevent an underground storage tank system
from releasing petroleum.
(cc) "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.
(dd) "New tank system" means a tank system that will be used to contain an accumulation of petroleum
and for which installation has commenced after December 22,1988. (See also "Existing Tank System").
(ee) "Noncommercial purposes" with respect to motor fuel means not for resale.
April, 1990 (Revised)
84.195
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1-15
(Rule J200—1—15—.01, continued)
(ff) "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.
(gg) "Operational life" refers to the period beginning when installation of the tank system has com-
menced until the time the tank system is properly closed under rule 1200—1—15—.07.
(hh) "Operator" means any person in control of, or having responsibility for, the daily operation of
the UST system.
(ii) "Overfill release" is a release that occurs when a tank is filled beyond its capacity, resulting in
a discharge of the petroleum to the environment.
0'j) "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
petroleum; 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.
(kk) "Person" means any and all persons, including individuals, firms, partnerships, associations, public
or private institutions, state and federal agencies, municipalities or political subdivisions, or of-
ficers thereof, departments, agencies or instrumentalities, or public or private corporations or of-
ficers thereof, organized or existing under the laws of this state or any other state or country.
(11) "Petroleum" means crude oil or any fraction thereof that is liquid at standard temperature and
pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute).
(mm) "Petroleum UST system" means an underground storage tank system that contains petroleum or
a mixture of petroleum with de minimis quantities of other hazardous substances. Such systems
include those containing motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants,
petroleum solvents, and used oils.
(nn) "Pipe" or "Piping" means a hollow cylinder or tubular conduit that is constructed of non-earthen
materials.
(oo) "Pipeline facilities (including gathering lines)" are new and existing pipe rights-of-way and any
associated equipment, facilities, or buildings.
(pp) "Release" means any spilling, overfilling, leaking, emitting, discharging, escaping, leaching or
disposing of a petroleum substance from an UST including its associated piping, into ground water,
surface water, or subsurface soils.
(qq) "Release detection" means determining whether a release of petroleum has occurred from the UST
system into the environment or into the interstitial space between the UST system and its secon-
dary barrier or secondary containment around it.
(rr) "Repair" means to restore a tank or UST system component that has caused a release of petroleum
from the UST system.
(ss) "Residential tank" is a tank located on property used primarily for dwelling purposes.
(tt) "SARA" means the Superfund Amendments and Reauthorization Act of 1986.
April, 1990 (Revised)
84.196
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*tOUND STORAGE TANK PROGRAM
CHAPTER 1200-1—15
:00—1—15—.01, continued)
(uu) "Septic tank" is a watertight covered receptacle designed to receive or process, through liquid separation
or biological digestion, the sewage discharged from a building sewer. The effluent from such recep-
tacle is distributed for disposal through the soil and settled solids and scum from the tank axe pumped
out periodically and hauled to a treatment facility.
. (w) "Storm-water or wastewater collection system" means piping, pumps, conduits, and any other equip-
ment necessary to collect and transport the flow of surface water run-off resulting from precipita-
tion, 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 treat-
ment except where incidental to conveyance.
(ww) "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.
(xx) "Tank" is a stationary device designed to contain an accumulation of petroleum and constructed
of non-earthen materials (e.g., wood, concrete, steel, fiberglass) that provide structural support.
(yy) "Underground area" means an underground room, such as a basement, cellar, shaft or vault, pro-
viding enough space for physical inspection of the exterior of the tank situated on or above the sur-
face of the floor.
(zz) "Underground release" means any belowground release.
(aaa) "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 petroleum, 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 non-
commercial purposes;
2. Tank used for storing heating oil for consumption on the premises where stored;
3. Septic lank;
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) Which is an intrastate pipeline facility regulated under state laws comparable to the provi-
sions of the law referred to in paragraph (d) 1. or (d) 2. of this, definition;
5. Surface impoundment, pit, pond, or lagoon;
6. Storm-water or wastewater collection system;
7. Flow-through process tank;
April, 1990 (Revised)
84.197
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UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.01, continued)
8. Liquid trap or associated gathering lines directly related to oil or gas production and gathering
operations; or
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.
The term "underground storage tank" or "UST" does not include any pipes connected to any
tank which is described in parts 1. through 9. of this subparagraph.
"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 pre-
vent the release of petroleum.
"UST system" or "Tank system" means an underground storage tank, connected underground
piping, underground ancillary equipment, and containment system, if any.
"Wastewater treatment tank" means a tank that is designed to receive and treat an influent
wastewater through physical, chemical, or biological methods.
Authority: T.C.A. §§68—53—101 et. seq., 68—53—107, 68—53—113 and 4—5—201 et. seq. Administrative History:
Original rule filed March 1, 1990; effective April 15, 1990. Amendment filed July 3, 1991; effective August 17, 1991
1100—1—15—.02 UST SYSTEMS: DESIGN, CONSTRUCTION, INSTALLATION AND NOTIFICATION.
(1) 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 petroleum, all owners and/or 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 petroleum must be protected from corrosion as specified below:
1. The tank is constructed of fiberglass-reinforced plastic:
[Note: The following publications provide information on this subject: Underwriters Laboratories
Standard 1316 (First Edition, Revised 1987), Standard for Glass-Fiber-Reinforced Plastic
Underground Storage Tanks for Petroleum Products; Underwriter's Laboratories of Canada
CAN4-S615-M 83 (First Edition, February 1983), Standard for Reinforced Plastic Underground
Tanks for Petroleum Products; or American Society of Testing and Materials Standard D4021-86
(1986 Edition), Standard Specification for Class-Fiber-Reinforced Polyester Underground
Petroleum Storage Tanks.)
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;
(iii) Impressed current systems are designed to allow determination of current operating status
as required in rule 1200—1—15—.03(2)(c); and
(bbb)
(ccc)
(ddd)
August, 1991 (Revised)
84.198
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1-15
(Rule 1200—1—15—.02, continued)
(iv) Cathodic protection systems are operated and maintained in accordance with rule
1200—1—15—.03(2) or a method determined by the Division to provide equivalent pro-
tection against corrosion.
[Note: The following publications provide information on this subject: Steel Tank Institute (May
1987 Edition) Specification for STI-P3 System of External Corrosion Protection of Underground
Steel Storage Tanks; Underwriters Laboratories Standard 1746, (First Edition, Proposed
November 1987), Corrosion Protection Systems for Underground Storage Tanks; Underwriters
Laboratories of Canada CAN4-S603-M85, (1985 Edition), Standard for Steel Underground Tanks
for Flammable and Combustible Liquids, and CAN4-603.1-M85, (1985 Edition), Standard for
Galvanic Corrosion Protection Systems for Underground Tanks for Flammable and Combusti-
ble Liquids, and CAN4-S631-M84, (1984 Edition), Isolating Bushings for Steel Underground
Tanks Protected with Coatings and Galvanic Systems; or National Association of Corrosion
Engineers Standard RP-02-85 (March 1985), Control of External Corrosion on Metallic Buried,
Partially Buried, or Submerged Liquid Storage Systems, and Underwriters Laboratories Stan-
dard 58 (Eighth Edition, 1986), Standard for Steel Underground Tanks for Flammable and Com-
bustible Liquids.)
3. The tank is constructed of a steel-fiberglass-reinforced-plastic composite:
[Note: The following publications provide information on this subject: Underwriters Laboratories
Standard 1746 (First Edition, Proposed November 1987), Corrosion Protection Systems for
Underground Storage Tanks, or the Association for Composite Tanks ACT-100 (March 1988
Revision), Specification for the Fabrication of FRP Clad Underground Storage Tanks.]
4. The tank is constructed of metal without additional corrosion protection 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 operational life; and
(ii) Owners and/or operators maintain records that demonstrate compliance with the re-
quirements of subpart (a)4.(i) of this paragraph for the remaining life of the tank; or
5. The tank construction and corrosion protection are determined by the Division to be designed
to prevent the release or threatened release of any stored petroleum in a manner that is no less
protective of human health and the environment than parts (a)l. through 4. of this paragraph.
(b) Piping. The piping that routinely contains petroleum and is in contact with the ground must be pro-
perly designed, constructed, and protected from corrosion as specified below:
1. The piping is constructed of fiberglass-reinforced plastic; or
[Note: The following publications provide information on this subject: Underwriters Laboratories
Subject 971, UL Listed Non- Metal Pipe\ Underwriters Laboratories Standard 567 (Sixth Edi-
tion, 1989), Pipe Connectors for Flammable and Combustible and LP Gas', Underwriters
Laboratories of Canada Guide ULC-107C (1984 Edition), Glass Fiber Reinforced Plastic Pipe
and Fittings for Flammable Liquids; and Underwriters Laboratories of Canada Standard
CAN4-S633-M84 (First Edition, June 1984), Flexible Underground Hose Connectors for Flam-
mable and Combustion Liquids.J
2. The piping is constructed of steel and cathodically protected in the following manner:
(i) The piping is coated with a suitable dielectric material;
April, 1990 (Revised)
84.199
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1-15
(Rule 1200—1 —15—.02, continued)
(ii) Field-installed cathodic protection systems are designed by a corrosion expert;
(iii) Impressed current systems are designed to allow determination of current operating status
as required in rule 1200—1—15—.03(2)(c); and
(iv) Cathodic protection systems are operated and maintained in accordance with rule
1200—1—15—.03(2) or in a manner determined by the Division to provide equivalent pro-
tection against corrosion.
[Note: The following'publications provide information on this subject: National Fire Protec-
tion Association Standard 30 0987 Edition), Flammable and Combustible Liquids Code;
American Petroleum Institute Publication 1615 (Fourth Edition, November 1987), Installation
of Underground Petroleum Storage Systems', American Petroleum Institute Publication 1632
(First Edition, 1983), Cathodic Protection of Underground Petroleum Storage Tanks and Pip-
ing' Systems-, and National Association of Corrosion Engineers Standard RP-01-69 0983 Revi-
sion), Control of External Corrosion on Submerged Metallic Piping Systems. J
3. The piping is constructed of metal without additional corrosion protection measures provided that:
(i) The piping is installed at a site that is determined by a corrosion expert to not be corrosive
enough to cause it to have a release due to corrosion during its operational life; and
(ii) Owners and/or operators maintain records that demonstrate compliance with the re-
quirements of subpart (b)3.(i) of rule 1200—I —15—.02(1) for the remaining life of the
piping; or
(Note: National Fire Protection Association Standard 30 0987 Edition), Flammable and Com-
bustible Liquids Code\ and National Association of Corrosion Engineers Standard RP-01-69
(1983 Revision), Control of External Corrosion on Submerged Metallic Piping Systems, provide
information on this subject.
4. The piping construction and corrosion protection are determined by the Division to be designed
to prevent the release or threatened release of any stored petroleum in a manner that is no less
protective of human health and the environment than the requirements in parts (b) 1. through
3. of rule 1200—1 — 15—.02(1).
(c) Spill and overfill prevention equipment.
1. Except as provided in part (c)2. of rule 1200—1 — 15—.02(1), to prevent spilling and overfilling
associated with petroleum transfer to the UST system, owners and/or operators must use the
following spiil and overfill prevention equipment:
(i) Spill prevention equipment that will prevent release of petroleum to the environment when
the transfer hose is detached from the fill pipe (for example, a spill catchment basin); and
(ii) Overfill prevention equipment that will:
(I) Automatically shut off flow into the tank when the lank is no more than 95 percent
full; or
(II) Alert the transfer operator when the tank is no more than 90 percent full by restric-
ting the flow into the tank or triggering a high-level alarm.
(III) 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 tanks so that
none of the fittings located on top of the tank are exposed to product due to overfilling.
August, 1991 (Revised)
84.200
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.02, continued)
2. Owners and/or operators are not required to use the spill and overfill prevention equipment
specified in part (c)l. of rule 1200—1—15—.02(1) if:
(i) Alternative equipment is used that is determined by the Division to be no less protective
of human health and the environment than the equipment specified in subpart (c)l.(i) or
(ii) of rule 1200—1—15—.02(1); or
(ii) The UST system is filled by transfers of no more than 25 gallons at one time.
(d) Installation.
1. All tanks and piping must be installed in accordance with the manufacturer's installation in-
structions; and
2. After installation has been completed and before the. system is placed into operation, a tank
tightness test as specified in rule 1200—1—15—.04(3)(c) and a line tightness test as specified
in rule 1200—1 —15—.04(4)(b) must be conducted. The tank tightness test and line tightness
test must indicate the tank system will not leak prior to placing the tank system into operation.
[Note: Tank and piping system installation practices and procedures described in the following
publications provide information on this subject: American Petroleum Institute Publication 1615
(Fourth Edition, November 1987), Installation of Underground Petroleum Storage System',
Petroleum Equipment Institute Publication RP100(1987 Edition), Recommended Practices for
Installation of Underground Liquid Storage Systems', or American National Standards Institute
Standard B31.3 (1987), Petroleum Refinery Piping, and American National Standards Institute
Standard B31.4 (1989), Liquid Petroleum Transportation Piping System.]
(e) Certification of installation. All owners and/or 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 rule 1200—1 —15—.02(1) by providing a certification of compliance on the UST notification
form in accordance with rule 1200—1 —15—.02(3).
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 with educa-
tion and experience in UST system installation; or
3. The installation has been inspected and approved by the Division; or
4. All work listed in the manufacturer's installation checklists has been completed; or
5. The owner and operator have complied with another method for ensuring compliance with
paragraph (d) of rule 1200—1 —15—.02(1) that is determined by the Division to be no less pro-
tective of human health and the environment.
(2) 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 rule 1200—1—15—.02(1);
2. The upgrading requirements in subparagraphs (b) through (d) of this paragraph; or
April, 1990 (Revised)
84.201
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.02, continued)
3. Closure requirements under rule 1200—1—15—.07, including applicable requirements for cor-
rective action under rule 1200—1—15—.06.
(b) Tank upgrading requirements. Steel tanks must be upgraded to meet one of the following requirements;
1. Interior lining. A tank may be upgraded by internal lining if:
(i) The lining is installed in accordance with the requirements of rule 1200—1—15—.03(4)
and at least the-following procedures and practices:
(I) The storage tank lining material must be compatible with the product to be stored;
(II) The tank shell must be structurally sound prior to lining;
(III) Lining manufacturers directions are followed during installation of lining; and
(IV) After the tank is lined and before the tank is returned to service, the tank must be
tank tightness tested according to rule 1200—1 —15—.04(3)(c); and
(ii) Within 10 years after lining, and every 5 years thereafter, the lined tank is internally in-
spected 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 rule 1200—1—15—.02(l)(a)2.(ii), (iii), and (iv) and the in-
tegrity 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 corrosion holes prior to installing the cathodic protection system; or
(ii) The tank has has been installed for less than 10 years and is monitored monthly for releases
in accordance with rule 1200—1 —15—,04(3)(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 that meet the requirements of nile 1200—1—15—.04(3)(c).
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 follow-
ing the first operation of the cathodic protection system; or
(iv) The tank is assessed for corrosion holes by a method that is determined by the Division
to prevent releases in a manner that is no less protective of human health and the environ-
ment than subparts (b)2.(i) through (iii) of this paragraph.
3. Internal lining combined with cathodic protection. A tank may be upgraded by both internal
lining and cathodic protection if:
(i) The lining is installed in accordance with the requirements of rule 1200—I —15—.03(4)
and rule 1200-1—15—.02(2)(b)l.(i), and
(ii) The cathodic protection system meets the requirements of rule 1200—1—15—.02(I)(a)2.(ii),
(iii), and (iv).
April, 1990 (Revised)
84.202
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.02, continued)
[Note: The following publications provide information on this subject: American Petroleum
Institute Publication 1631 (Second Edition, December 1987), Recommended Practice for
the Interior Lining of Existing Steel Underground Storage Tanks-, National Leak Preven-
tion Association Standard 631 (Second Edition, September }988), Spill Prevention.
Minimum 10 Year Life Extension of Existing Steel Underground Tanks by Lining Without
the Addition of Cathodic Protection', National Association of Corrosion Engineers Stan-
dard RP-02-85 (March 1985), Control of External Corrosion on Metallic Buried, Partially
Buried, or Submerged Liquid Storage Systems', and American Petroleum Institute Publica-
tion 1632 (First Edition, 1983), Cathodic Protection of Underground Petroleum Storage
Tanks and Piping Systems.]
(c) Piping upgrading requirements. Metal piping that routinely contains petroleum and is in contact with
the ground must be cathodically protected and meet the requirements of rule
1200—1—15—.02(1 )(b)2.(ii). (iii), and (iv).
[Note: The publications listed in the note following rule 1200—1 —15—.02(l)(b)2. provide informa-
tion on this subject.]
(d) Spill and overfill prevention equipment. To prevent spilling and overfilling associated with petroleum
transfer to the UST system, all existing UST systems must comply with new UST system spill and
overfill prevention equipment requirements specified in rule 1200—1—15—.02(l)(c).
(3) Notification requirements.
(a) Any owner who brings an underground storage tank system into use after July 1, 1989, must 15 days
in advance of bringing such tank into use, submit, in the form prescribed in Appendix 1 of this rule,
a notice of existence of such tank system to the Division. Any owner or operator wishing to replace
or upgrade an existing and properly registered UST system may do so as needed, provided that within
30 days after completion of said replacement or upgrading, he shall notify the Division of the changes
made on the form prescribed in Appendix 1, indicating that it is an amendment to the existing system.
[Note: Owners and/or operators of UST systems that were in the ground oh or after May 8, 1986,
unless taken out of operation on or before January 1, 1974, were required to notify the designated
state or local agency in accordance with the Hazardous and Solid Waste Amendments of 1984, Public
Law 98-616, on a form published by EPA on November 8, 1985, (50 FR 46602) unless notice was
given pursuant to section 103(c) of CERCLA. Owners and/or operators who have not complied with
the notification requirements may use portions 1 through VI of the notification form contained in
Appendix 1 of this rule.]
(b) Owners and/or operators shall use the form in Appendix 1 of this rule to report petroleum underground
storage tanks.
(c) Owners required to submit notices under subparagraph (a) of this paragraph must provide notices
to the Division for each tank they own. Owners may provide notice for several tanks using one notifica-
tion 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.
(d) Notices required to be submitted under subparagraph (a) of rule 1200—1—15—.02(3) must provide
all of the information in Sections I through VI of the prescribed form for each tank for which notice
must be given. Notices for tanks installed after December 22, 1988, must also provide all of the infor-
mation in Section VII of the prescribed form for each tank for which notice must be given.
April, 1990 (Revised)
84.203
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1 —15—.02, continued)
(e) AJ1 owners and operators of new UST systems must certify in the notification form compliance with
the following requirements:
1. Installation of tanks and piping under rule 1200—1—15—.02(1 )(e);
2. Cathodic protection of steel tanks and piping under rule 1200—1—15—.02(1 )(a) and (b);
3. Financial responsibility under rule 1200—1 —15—.08; and
4. Release detection under rule 1200—1 —15—.04(2).
(0 All owners and operators of new UST systems must ensure that the installer certifies in the notifica-
tion form that the methods used to install the tanks and piping complies with the requirements in
rule 1200—1 — 15—.02(l)(d).
(g) Beginning October 26, 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 subparagraph
(a) of rule 1200—1 —15—.02(3). The form provided in Appendix 2 may be used to comply with this
requirement.
(h) Any change in the status of the tanks at a petroleum UST facility must be reported within thirty (30)
days of said change. This includes but is not limited to changes of ownership, upgrading or replace-
ment of tanks, and changes in service. Such reports shall be made using an amended notification form.
In the case of a sale of tanks, the seller must submit the amended notification form and must also
inform the buyer of the notification requirement.
Authority: T.C.A. §§55—53—101 et seq., 68—53—107, 68—53—113 and 4—5—201 et seq. Administrative History:
Original rule filed March 1, 1990; effective April 15, 1990. Amendment filed July 3. 1991; effective August 17, 1991.
1200—1 — 15—.03 GENERAL OPERATING REQUIREMENTS.
(1) Spill and overfill control.
(a) Owners and/or operators must ensure that releases due to spilling cr overfilling do net occur. The
owner and/or operator must ensure that the volume available in the tank is greater than the volume
of petroleum to be transferred to the tank before the transfer is made and ih2t the transfer operation
is monitored constantly to prevent overfilling and spilling.
[Note: The following publications provide information on this subject: National Fire Protection
Association Publication 385 (1985 Edition), Tank Vehicles for Flammable end Combustible Liquids',
American Petroleum Institute Publication 1621 (Third Edition, 1977), Recommended Practice for Bulk
Liquid Stock Control at Retail Outlets', and National Fire Protection Association Standard 30 (1987
Edition), Flammable and Combustible Liquids Code.]
(b) The owner and/or operator must report, investigate, and clean up any spills and overfills in accord-
ance with rule 1200—J —15—.05(4).
(2) Operation and maintenance of corrosion protection.
All owners and/or operators of steel UST systems with corrosion protection must comply with the follow-
ing requirements to ensure that releases due to corrosion are prevented for as long as the UST system is
used to store petroleum:
(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 thai routinely contains
petroleum and is 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:
August, 1991 (Revised)
84.204
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.03, continued)
1. Frequency. All cathodic protection systems must be tested within 6 months of installation and
at least every 3 years thereafter;
2. The cathodic protection system must be functioning as designed and is effectively preventing
corrosion; and
3. The owner and/or operator shall maintain records that demonstrate compliance with this
paragraph.
[Note: National Association of Corrosion Engineers Standard RP-02-85 (March 1985 Edition),
Control of External Corrosion on Metallic Buried, Partially Buried, or Submerged Liquid Storage
Systems, provides information on this subject.]
(c) UST systems with impressed current cathodic protection systems must also be inspected every 60 days
to ensure the equipment is running properly.
(d) For UST systems using cathodic protection, records of the operation of the cathodic protection must
be maintained (in accordance with rule 1200— 1—15—.03(5)) to demonstrate compliance with the per-
formance standards in rule 1200—1—15—.03(2). These records must provide the following:
1. The results of the last three inspections required in subparagraph (c) of rule 1200—1 —15—.03(2);
and
2. The results of testing from the last two inspections required in subparagraph (b) of rule
1200—1 — 15—.03(2).
(3) Compatability.
Owners and/or operators must use an UST system made of or lined with materials that are compatible
with the petroleum stored in the UST system.
(Note: The following publications provide information on storing alcohol blends: American Petroleum In-
stitute Publication 1626 (First Edition, April 1985), Storing and Handling Ethanol and Gasoline-Ethano!
Blends at Distribution Terminals and Service Stations; and American Petroleum Institute Publication 1627
(First Edition, August 1986), Storage and Handling of Gasoline-Methanol/Co-solvent Blends at Distribu-
tion Terminals and Service Stations.]
(4) Repairs allowed.
Owners and/or operators of UST systems must ensure that repairs will prevent releases due to structural
failure or corrosion as long as the UST system is used to store petroleum. The repairs must meet the follow-
ing requirements:
(a) Repairs to UST systems must be conducted so as to effectively prevent releases for the operational
life of the tank system.
[Note: The following publications provide information on this subject: National Fire Protection
Association Standard 30 (1987 Edition), Flammable and Combustible Liquids Code; American
Petroleum Institute Publication 2200 (Second Edition, 1983), Repairing Crude Oil, Liquified Petroleum
Gas, and Product Pipelines-, American Petroleum Institute Publication 1631 (Second Edition, December
1987), Recommended Practice for the Interior Lining of Existing Steel Underground Storage Tanks;
and National Leak Prevention Association Standard 631 (Second Edition, September 1988), Spill
Prevention, Minimum JO Year Life Extension of Existing Steel Underground Tanks by Lining Without
the Addition of Cathodic Protection.]
April, 1990 (Revised)
84.205
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—:.03, continued)
(b) Repairs to fiberglass-reinforced plastic tanks shall be made by the manufacturer's authorized represen-
tatives or in accordance with the manufacturer's specifications.
(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 1200—1—15—.04(3)(c)
and rule 1200—1—15—.04(4)(b) within 30 days following the date of the completion of the repair
except as provided in parts (d)l. through 3. of rule 1200—1—15—.03(4):
1. The repaired tank is internally inspected; or
2. The repaired portion of the UST system is monitored monthly for releases in accordance with
a method specified in rule 1200—1—15—,04(3)(d) through (h); or
3. Another test method is used that is determined by the Division 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 protec-
tion system must be tested in accordance with rule 1200—1 —15—.03(2)(b) and (c) to ensure that it
is operating properly.
(f) UST system owners and/or operators must maintain records of each repair for the remaining operating
life of the UST system that demonstrate compliance with the requirements of rule 1200—1—15—.03(4).
(5) Reporting and recordkeeping.
Owners and/or operators of UST systems must cooperate fully with inspections, monitoring and testing
conducted by the Division, as well as requests for document submission, testing, and monitoring by the
owner or operator pursuant to the Tennessee Petroleum Underground Storage Tank Act T.C.A.
§68—53—107.
(a) Reporting. Owners and/or operators must submit the following information to the Division:
1. Notification for all UST systems (rule 1200—1 —15—.02(3), which includes certification of in-
stallation for new UST systems (rules 1200—1 — 15—.02(l)(e));
2. Reports of all releases including suspected releases (rule 1200—1 —15—.05(1)), spills and over-
fills (rule 1200—1—15—.05(4)), and confirmed releases (rule 1200—1 —15—.06(2));
3. Corrective actions planned or taken including initial abatement measures (rule
1200—1 — 15—.06(3)), initial site characterization (rule 1200—1 —15—.06(4)), free product
removal (rule 1200—1—15—.06(5)), investigation of soil and ground-water cleanup (rule
1200—1—15—.06(6)), and corrective action plan (rule 1200—1—15— .06(7)); and
4. A notification before permanent closure or change-in-service (rule 1200—1 — 15—.07(2)).
(b) Recordkeeping. Owners and/or operators must maintain the following information:
1. A corrosion expert's analysis of site corrosion potential if corrosion protection equipment is
not used (rule 1200—1 — 15—.02(l)(a)4; rule 1200—1—15—.02(l)(b)3);
April, 1990 (Revised)
84.206
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.03, continued)
2. Documentation of operation of corrosion protection equipment (rule 1200—1—15—.03(2));
3. Documentation of UST system repairs (rule 1200—1—15—.03(4)(f));
4. Recent compliance with release detection requirements (rule 1200—1—15—.04(5)); and
5. Results of the site investigation conducted at permanent closure (rule 1200—1—15—.07(5)).
(c) Availability and Maintenance of Records. Owners and/or operators must keep the records required
either:
1. At the UST site and immediately available for inspection by the Division; or
2. At a readily available alternative site and be provided for inspection to the Division upon request.
3. In the case of permanent closure records required under rule 1200—1—15—.07(5), owners and/or
operators are also provided with the additional alternative of mailing closure records to the Divi-
sion if they cannot be kept at the site or an alternative site as indicated abovr.
Authority: T.C.A. §§<5
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.04, continued)
Year System
was installed
Year when release detection is required
(by December 22 of the year indicated)
1989
1990
1991
1992
1993
Before 1965 or
Date Unknown RD
P
P/RD
1965-1969
1970-1974
1975-1979
1980-1988
P
P
P
RD
RD
RD
New tanks (after December 22, 1988) immediately upon installation
P - Must begin release detection for all pressurized piping in accordance with rule
1200—1 — 15—.04(2)(b)l.
RD - Must begin release detection for tanks and suction piping in accordance with rule
1200—1 — 15—.04(2)(a) and rule 1200—1—15—.04(2)(b)2.
(d) Any existing UST system that cannot apply a method of release detection that complies with the re-
quirements of rule 1200—1 — 15—.04 must complete the closure procedures in rule 1200—1—15—.07
by the date on which release detection is required for that UST system under subparagraph (c) of
rule 1200—1 — 15—.04(1).
(2) Requirements for petroleum UST systems.
Owners and operators of petroleum UST 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 1200—1 —15—.04(3)(d)-(h) except that:
1. UST systems that meet the performance standards in rule 1200—1—15—.02(1) or rule
1200—1 — 15—.02(2), and the monthly inventory control requirements in rule
1200—1 — 15—.04(3)(a) or (b), may use tank tightness testing (conducted in accordance with
rule 1200—1 —15—.04(3)(c)) at least every 5 years until December 22, 1998 or until 10 years
after the tank is installed or upgraded under rule 1200—1—15—,02(2)(b), whichever is later;
2. UST systems that do not meet the performance standards in rule 1200—1—15—.02(1) or rule
1200—1 — 15—.02(2) may use monthly inventory controls (conducted in accordance with rule
1200—1 — 15—.04(3)(a) or (b)) and annual tank tightness testing (conducted in accordance with
rule 1200—1 —15—.04(3)(c)) until December 22, 1998 when the tank must be upgraded under
rule 1200—1 —15—.02(2) or permanently closed under rule 1200—1 —15—.07(2); and
3. Tanks with capacity of 550 gallons or less may use weekly tank gauging (conducted in accor-
dance with rule 1200—1 —15—,04(3)(b)).
(b) Piping. Underground piping that routinely contains petroleum must be monitored for releases in a
manner that meets one of the following requirements:
1. Pressurized piping. Underground piping that conveys petroleum under pressure must:
April, 1990 (Revised)
84.208
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.04, continued)
(j) Be equipped with an automatic line leak detector conducted in accordance with rule
1200—1—15— 04(4)(a); and
(ii) Have an annual line tightness test conducted in accordance with rule 1200—1—15—.04(4)(b)
or have monthly monitoring conducted in accordance with rule 1200—1—15—.04(4)(c).
2. Suction piping. Underground piping that conveys petroleum under suction must either have a
line tightness test conducted at least every 3 years and in accordance with rule
1200—1—15—.04(4)(b), or use a monthly monitoring method conducted in accordance with
riifc 1200—1—15—.04(4)(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;
(iii) Only one check valve is included in each suction line;
(iv) The check valve is located directly below and as close as practical to the suction pump; and
(v) A method is provided that allows compliance with subparts (b)2(ii)-(iv) of rule
1200—1—15—.04(2) to be readily determined.
(3) Methods of release direction for tanks.
Each method of release detection for tanks used to meet the requirements of rule 1200—1—15—.04(2) must
be conducted in accordance with the following:
(a) Inventory control. Product inventory control (or another lest of 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 petroleum inputs, withdrawals, and the amount still re-
maining in the tank arc recorded each operating day;
2. The equipment used is capable of measuring the level of petroleum over the full range of the
tank's height to the nearest one-eighth of an inch;
3. The petroleum inputs are reconciled with delivery receipts by measurement of the tank inven-
tory volume before and after delivery;
4. Deliveries are made through a drop tube that extends to within one foot of the tank bottom;
5. Petroleum dispensing is metered and recorded within the local standards for meter calibration
or an accuracy of 6 cubic inches for every 5 gallons of petroleum 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: American Petroleum Institute Publication 1621 (Fourth Edition, 1987), Recommended
Practice for Bulk Liquid Stock Control at Retail Outlets, provides information on this subject.]
April, 1990 (Revised)
84.209
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.04, continued)
(b) Manual tank gauging. Manual tank gauging must meet the following requirements:
I. 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 begin-
ning and ending of the period;
3. The equipment used is capable of measuring the level of petroleum 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 rule 1200—1 —15—.05 if the variation
between beginning and ending measurements exceeds the weekly or monthly standards in the
following table:
Nominal
Tank Capacity
550 gallons
or less
551-1000
gallons
1001-2000
gallons
Weekly Standard
(one test)
10 gallons
13 gallons
26 gallons
Monthly Standard
(Average of 4 Tests)
5 gallons
7 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 con-
trol in rule 1200—1—15—,04(3)(a). Tanks of greater than ^,000 gallons nominal capacity may
not use this method to meet the requirements of this rule.
(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 con-
tains petroleum while accounting for the effects of thermal expansion or contraction of the petroleum,
vapor pockets, tank deformation, evaporation or condensation, and the location of the water table.
(d) Automatic tank gauging. Equipment for automatic tank gauging that tests for the loss of petroleum
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 petroleum; and
2. Inventory control (or another test of equivalent performance) is conducted in accordance with
the requirements of rule 1200—1—15—.04(3)(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 readi-
ly allow diffusion of vapors from releases into the excavation area;
2. The stored petroleum, 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;
April, 1990 (Revised)
84.210
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.04, continued)
3. The measurement of vapors by the monitoring device is not rendered inoperative by the ground
water, rainfall, or soil moisture or other known interferences so that a release could go undetected
for more than 30 days;
4. The level of background contamination in the excavation zone will not 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 concentra-
tion above background of the petroleum stored in the tank system, a component 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
parts (e)l.-4. of rule 1200—1—15—.04(3) and to establish the number and positioning of monitor-
ing wells that will detect releases within the excavation zone from any portion of the tank that
routinely contains petroleum; and
7. Monitoring wells are clearly marked and secured to avoid unauthorized access and tampering.
(0 Groundwater monitoring. Testing or monitoring for liquids on the ground water must neet the follow-
ing requirements:
1. Ground water monitoring shall not be allowed in areas where the tank excavation zone has en-
countered bedrock.
2. The petroleum stored is immiscible in water and has a specific gravity of less than one;
3. Ground water is never more than 20 feet from the ground surface and the hydraulic conductivi-
ty 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);
4. The slotted portion of the monitoring well casing must be designed to prevent migration of natural
soils or filter pack into the well and to allow entry of petroleum on the water table into the
well under both high and low ground water conditions;
5. Monitoring wells shall be sealed from the ground surface to the top of the filter pack;
6. Monitoring wells or devices intercept the excavation zone or are as close to it as is technically
feasible;
7. 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 ground water in the monitoring wells;
8. Within and immediately below the UST system excavation zone, the site is assessed to ensure
compliance with the requirements in parts (f)l.-5. of rule 1200—1—15—.04(3) and to establish
the number and positioning of monitoring wells or devices that will detect releases from any
portion of the tank that routinely contains petroleum; and
9. Monitoring wells are clearly marked and secured to avoid unauthorized access smd tampering.
(g) Interstitial monitoring. Interstitial monitoring between the UST system and a secondary barrier im-
mediately around or beneath it may be used, but only if the system is designed, constructed and in-
stalled to detect a leak from any portion of the tank that routinely contains petroleum and also meets
one of the following requirements:
April, 1990 (Revised)
84.211
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—1S
(Rule 1200—1—15—.04, continued)
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 petroleum;
[Note: Steel Tank Institute's (April, 1989 Edition) Standard for Dual Wall Underground Storage
Tanks provides information on this subject.]
2. For UST systems with a secondary 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 artificially constructed
material that is sufficiently thick and impermeable (at least 10-6 cm/sec for the petroleum
stored) to direct a release to the monitoring point and permit its detection;
(ii) The barrier is compatible with the petroleum stored so that a release from the UST system
will not cause a deterioration of the barrier 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 cathodic 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 monitoring designs are for use
under such conditions; and,
(vi) Monitoring wells are clearly marked and secured to avoid unauthorized 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 combination 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 Division may approve another method if the owner ajid operator can demonstrate that the
method cam detect a release as effective as any of the methods allowed in subparagraphs (c)-(h)
of rule 1200—1 — 15—.04(3). In comparing methods, the Division shall consider the size of release
that the method can detect and the frequency and reliability with which it can be detected. If
(he method is approved, the owner and operator must comply with any conditions imposed by
the Division on its use to ensure the protection of human health and the environment.
(4) Methods of release detection for piping.
Each method of release detection for piping used to meet the requirements of rule 1200—1—15—.04(2)
must be conducted in accordance with the following:
April, 1990 (Revised)
84.212
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.04, continued)
(a) Automatic line leak detectors. Methods which alert the operator to the presence of a leak by restric-
ting or shutting off the flow of petroleum 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 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 rule 1200—1—15—.04(3)(e) through (h) may be
used if they are designed to detect a release frcm any portion of the underground piping that routine-
ly contains petroleum.
(5) Release detection recordkeeping.
All UST system owners and/or operators must maintain records in accordance with rule 1200—1—15—.03(5)
demonstrating compliance with all applicable requirements of rule 1200—1—15—.04. 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 lightness testing conducted in accordance with rule 1200—1—15—.04(3)(c) must
be retained until the next test is conducted; and
(c) Written documentation of all calibration, maintenance, and repair of release detection equipment
permanently located on-site must be maintained for at least one year after the servicing work is com-
pleted. Any schedules of required calibration and maintenance provided by the release detection equip-
ment manufacturer must be retained for 5 years from the date of installation.
Authority: T.C.A. §§65—53—101 et seq. and 4—5— 201 et seq. Administrative History: Original rule filed March
1, 1990; effective April IS, 1990.
1200—1—15—.05 RELEASE REPORTING, INVESTIGATION AND CONFIRMATION.
(1) Reporting of suspected releases.
Owners and/or operators of UST systems must report to the Division within 72 hours and follow the pro-
cedures in rule 1200—1—15—.05(3) for any of the following conditions:
(a) The discovery by owners and/or operators or others of released petroleum at the UST site 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).
(b) Unusual operating conditions observed by owners and/or operators (such as the erratic behavior of
petroleum dispensing equipment, the sudden loss of petroleum from the UST system, or an unex-
plained presence of water in the tank), unless system equipment is found to be defective but not leak-
ing, and is immediately repaired or replaced; and,
(c) Monitoring results from a release detection method required under rule 1200—1—15—.04(2) that in-
dicate a release may have occurred unless:
April, 1990 (Revised) 84.213
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.05, continued)
1. The monitoring device is found to be defective, and is immediately repaired, 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.
(2) Investigation due to off-site impacts.
When required by the Division, owners and/or operators of UST systems must follow the procedures in
rule 1200—1—15—.05(3) to determine if the UST system is the source of off-site impacts. These impacts
include the discovery of petroleum (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 observed by the Division
or brought to its attention by another party.
(3) Release investigation and confirmation steps.
Unless corrective action is initiated in accordance with rule 1200—1—15—.06, owners and/or operators
must immediately investigate and confirm all suspected releases of petroleum requiring reporting under
rule 1200—1 —15—.05(1) within 7 days using the following steps:
(a) System test. Owners and/or operators must conduct tests (according to the requirements for tightness
testing in rule 1200—1—15—.04(3)(c) and rule 1200—1—15—.04(4)(b)) that determine whether a leak
exists in that portion of the tank that routinely contains petroleum, or the attached delivery piping,
or both.
1. Owners and/or operators must repair, replace or upgrade the UST system, and begin corrective
action in accordance with rule 1200—1—15—.06 if the test results for the system, tank, or delivery
piping indicate that a leak exists.
2. 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 suspec-
ting a release.
3. Owners and/or operators must conduct a site check as described in paragraph (b) of this section
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) Site check. Owners and/or 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 measure-
ment methods, owners and/or operators must consider the nature of the stored petroleum, the type
of initial alarm or cause for suspicion, the type of backfill, the depth of ground water, and other
factors appropriate for identifying the presence and source of the release.
1. If the test results for the excavation zone or the UST site indicate that a release has occurred,
owners and/or operators must begin corrective action in accordance with rule 1200—1—15—.06;
2. If the test results for the excavation zone or the UST site rdo not indicate that a release has oc-
curred, further investigation is not required.
(4) Reporting and cleanup of spills and overfills.
April, 1990 (Revised)
84.214
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UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.05, continued)
(a) ' Owners and/or operators of UST systems must contain and immediately clean up a spill or overfill
and report to the Division within 72 hours and begin corrective action if a spill or overfill of petroleum
results in a release to the environment that exceeds 25 gallons or that causes a sheen on nearby surface
water; or
(b) Owners and operators of UST systems must contain and immediately clean up a spill or overfill of
petroleum that is less than 25 gallons. If cleanup cannot be accomplished within 72 hours owners
and/or operators must immediately notify the Division.
Authority: T.C.A. §55—53—101 et seq. and 4—J—201 et seq. Administrative History: Original rule filed March 1,
1990; effective April IS, 1990.
1200—1—15— .06 RELEASE RESPONSE AND CORRECTIVE ACTION FOR UST SYSTEMS CONTAINING
PETROLEUM.
(1) General.
Owners and/or operators of petroleum UST systems must, in resppnse to a confirmed release from the
UST system, comply with the requirements of rule 1200—1—15—.06.
(2) Initial response.
Upon confirmation of a release in accordance with rule 1200—1—15—.05(3) or after a release from the
UST system is identified in any other manner, owners and/or operators must perform the following initial
response actions:
(a) Report the release to the Division within 72 hours (e.g., by telephone or electronic mail);
(b) Take immediate action to prevent any further release of the petroleum into the environment; and
(c) Take immediate action to identify and mitigate fire, explosion, and vapor hazards.
(3) Initial abatement measures and site check.
(a) Unless directed to do otherwise by the Division, owners and/or operators must perform the following
abatement measures:
1. Remove as much of the petroleum from the UST system as is necessary to prevent further release
to the environment;
2. Visually inspect any aboveground releases or exposed belowground releases and prevent further
migration of the petroleum into surrounding 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 excavation zone and entered into subsurface struc-
tures (such as sewers or basements);
4. 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 in-
clude treatment or disposal of soils, the owner and/or operator must comply with applicable
state and local requirements;
April, 1990 (Revised)
84.215
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UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.06, continued)
5. Measure for the presence of a release where contamination is most likely to be present at the
UST site, unless the presence and source of the release have been confirmed in accordance with
the site check required by rule 1200—1—15—.05(3)(b) or the closure site assessment of rule
1200—1—15—.07(3)(a). In selecting sample types, sample locations, and measurement methods,
the owner and operator must consider the nature of the stored petroleum, the type of backfill,
depth to ground water and other factors as appropriate for identifying the presence and source
of the release; and
6. Investigate to determine the possible presence of free product, and begin free product removal
as soon as practicable and in accordance with rule 1200—1—15—.06(5).
(b) Within 20 days after release confirmation owners and/or operators must submit a report to the Divi-
sion summarizing the initial abatement steps taken under subparagraph (a) of rule 1200—1—15—.06(3)
and any resulting information or data.
(4) Initial site characterization.
(a) Unless directed to do otherwise by the Division, owners and/or operators must assemble 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 1200—1— 15—.06(1) and rule 1200—1—15—.06(2).
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: surroun-
ding populations, water quality, use and approximate locations of wells potentially affected by
the release, subsurface soil conditions, locations of subsurface sewers, climatological conditions,
and land use;
3. Results of the site check required under rule 1200—1—15—.06(3)(a)5; and
4. Results of the free product investigations required under rule 1200—1—15—,06(3)(a)6, to be us-
ed by owners and/or operators to determine whether free product must be recovered under rule
1200—1—15—.06(5).
(b) Within 45 days of release confirmation owners and/or operators must submit the information col-
lected in compliance with subparagraph (a) of rule 1200—1—15—.06(4) to the Division in a manner
that demonstrates its applicability and technical adequacy, or in a format and according to the schedule
required by the Division.
(5) Free product removal.
At sites where investigations under rule 1200—1—15—,06(3)(a)6 indicate the presence of free product, owners
and/or operators must remove free product to the maximum extent practicable as determined by the Divi-
sion while continuing, as necessary, any actions initiated under rule 1200—1—15—.06(2) through rule
1200—1—15—.06(4), or preparing for actions required under rule 1200—1—15—.06(6) through rule
1200—1—15—.06(7). In meeting the requirements of this paragraph, owners and/or operators must:
April, 1990 (Revised)
84.216
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UNDERGROUND STORAGE TANKS PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.06, continued)
(a) Conduct free product removal in a manner that minimizes the spread of contamination into previous-
ly 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 com-
pliance 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 Division, prepare and submit to the Division, 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;
2. The estimated quantity, type, and thickness of free product observed or measured in wells,
boreholes, and excavations;
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, any 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.
(6) Investigations for soil and ground water cleanup.
(a) In order to determine the full extent and location of soils contaminated by the release and the presence
and concentrations of dissolved product contamination in the ground water, owners and/or operators
must conduct 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 recovery in compliance with rule 1200—1—15—.06(5);
3. There is evidence that contaminated soils may be in contact with ground water (e.g., as found
during conduct of the initial response measures or investigations required under rule
1200—1—15—.06(1) through rule 1200—1—15—.06(5); and
4. The Division requests an investigation, based on the potential effects of contaminated soil or
ground water on nearby surface water and ground water resources.
(b) Owners and/or operators must submit the information collected under subparagraph (a) of this
paragraph as soon as practicable or in accordance with a schedule established by the Division.
April, 1990 (Revised)
84.217
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UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.06, continued)
(7) Corrective action plan.
(a) At any point after reviewing the information submitted in compliance with rule 1200—1—15—.06(2)
through rule 1200—1—15—.06(4), the Division may require owners and/or operators to submit addi-
tional information or to develop and submit a corrective action plan for responding to contaminated
soils and ground water. If a plan is required, owners and/or operators must submit the plan according
to a schedule and format established by the Division. Alternatively, owners and/or operators may, after
fulfilling the requirements of rule 1200—1—15—.06(2) through rule 1200—1—15—.06(4), choose to
submit a corrective action plan for responding to contaminated soil and ground water. In either case,
owners and/or operators are responsible for submitting a plan that provides for adequate protection
of human health and the environment as determined by the Division, and must modify their plan as
necessary to meet this standard.
(b) The Division will approve the corrective action plan only after ensuring that implementation of the
plan will adequately protect human health, safety, and the environment. In making this determina-
tion, the Division should consider the following factors as appropriate:
1. The physical and chemical characteristics of the petroleum, including its toxicity, persistence,
and potential for migration;
2. The hydrogeologic characteristics of the facility and the surrounding area;
3. The proximity, quality, and current 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 rule 12001—1—15—.06.
(c) Upon approval of the corrective action plan or as directed by the Division, owners and/or operators
must implement the plan, including modifications to the plan made by the Division. They must monitor,
evaluate, and report the results of implementing the plan in accordance with a schedule and in a for-
mat established by the Division.
(d) Owners and/or operators may, in the interest of minimizing environmental contamination and pro-
moting more effective cleanup, begin cleanup of soil and ground water before the corrective action
plan is approved provided that they:
1. Notify the Division of their intention to begin cleanup;
2. Comply with any conditions imposed by the Division, including halting cleanup or mitigating
adverse consequences from cleanup activities; and
3. Incorporate these self-initiated cleanup measures in the corrective action plan that is submitted
to the Division for approval.
(e) 1. Ground water contaminated by petroleum from UST systems must be addressed in the corrective
action plan and meet the levels as listed in Appendix 3 for drinking water supplies and non-
drinking water supplies. The corrective action plan must determine if the contaminated ground
water met the definition of a "drinking water supply" before the contamination occurred and
propose site cleanup levels based on the category of ground water.
April, 1990 (Revised)
84.218
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;UND STORAGE TANKS PROGRAM
CHAPTER 1200—1—15
—1—15—.06, continued)
2. Soil contaminated by petroleum from UST systems must be addressed in the corrective action
plan. The level of soil cleanup shall follow Appendix 4. Soil cleanup levels shall vary depending
upon the permeability of the soil and whether the ground water below the site is a "drinking
water supply" or "non-drinking water supply". The permeability of the soil at the site and the
type ground water below the site must be reported in the corrective action plan.
3. For sites where the background level of petroleum, due to natural conditions, exceeds the levels
of cleanup required for soil and/or ground water in Appendices 3 and 4, then the owner and/or
operator shall only be required to cleanup to the naturally occurring background levels.
4. After an owner and/or operator has treated petroleum contamination at a site for an extended
period of time and the treatment system for soil and/or ground water has reached asymptotic
levels for contaminant removal, then the owner and/or operator may request a site specific stan-
dard from the Commissioner. The site specific standard request must document the type of treat-
ment used at the site, the length of treatment, and that the level of contaminant in the soil and/or
ground water has remained relatively constant for at least four (4) quarters. The site specific
standard request must also contain the parameters in paragraph 5 below. If the Commissioner
does not act on the request within 90 days of receipt, it shall be deemed to be denied. The owner
and/or operator may appeal any denial of a site specific standard request to the Board. The Com-
missioner shall submit an annual report to the Board documenting the site specific standards
granted during the calendar year.
5. If the owner and/or operator believes that a particular site should not be subject to the cleanup
requirements in Appendices 3 and 4, the owner and/or operator may petition the Commissioner
for a site specific standard. The owner and/or operator must, at a minimum, include the follow-
ing in the site specific standard request:
(i) The physical and chemical characteristics of petroleum; including its toxicity, persistence,
and potential for migration;
(ii) The hydrogeologic characteristics of the petroleum site and the surrounding land;
(iii) The proximity, quality, and current and future uses of ground water;
(iv) An exposure assessment; and
(v) The proximity, quality, and current and future uses of surface waters.
Should the Commissioner deny the properly completed site specific standard request or fail to
act within ninety (90) calendar days of receipt, the owner and/or operator may petition the Board
for the site specific standard. The site specific standard request must include all items listed above,
at a minimum.
6. If the owner and/or operator has been granted a site specific standard based on a request described
in part 5. of this subparagraph and it is later determined that the information supplied in the
request was not accurate or there has been a change in the information supplied in subparts 5.(i)
through (v), then the Commissioner may revoke the site specific standard. The revocation of a
site specific standard may be appealed to the Board.
April, 1990 (Revised)
84.219
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UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.06, continued)
(8) Public participation.
(a) For each confirmed release that requires a corrective action plan, the Division 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, let-
ters to individual households, or personal contacts by field staff.
(b) The Division 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 action plan, the Division may hold a public meeting to consider com-
ments on the proposed corrective action plan if there is sufficient public interest, or for any other reason.
(d) The Division must give pubic notice that complies with subparagraph (a) of rule 1200—1—15—.06(8)
if implementation of an approved corrective action plan does not achieve the established cleanup levels,
in the plan and termination of that plan is under consideration by the Division.
Authority: T.C.A. §§65—53—101 et seq. and 4—5—201 et seq. Administrative History: Original rule filed March
1, 1990; effective April 15, 1990.
1200-1—15—.07 OUT-OF-SERVICE UST SYSTEMS AND CLOSURE.
(I) Temporary closure.
(a) When an UST system is temporarily closed, owners and/or operators must continue operation and
maintenance of corrosion protection in accordance with rule 1200—1—15—.03(2), and any release detec-
tion in accordance with rule 1200—1—15—.04. Rule 1200—1—15—.05 and rule 1200—1—15—.06 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.
(b) When an UST system is temporarily closed for 3 months or more, owners and/or operators must also
comply with the following requirements:
1. Leave vent lines open and functioning; and
2. Cap and secure all other lines, pumps, manways, and ancillary equipment.
3. File amended notification form showing the tank system as Temporarily Out of Use.
(c) When an UST system is temporarily closed for more than 12 months, owners and/or operators must
permanently close the UST system if it does not meet either performance standards in rule
1200—1—15—.02(1) for new UST systems or the upgrading requirements in rule 1200—1—15—.02(2),
except that the spill and overfill equipment requirements do not have to be met. Owners and/or operators
must permanently close the substandard UST systems at the end of this 12-month period in accor-
dance with rule 1200—1—15—.07(2) through rule 1200—1—15—.07(5), unless the Division provides
a written extension of the 12-month temporary closure period. Owners and/or operators must com-
plete a site assessment in accordance with rule 1200—I—15—.07(3) before such an extension can be
applied for.
April, 1990 (Revised)
84.220
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UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.07, continued)
(2) 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 rule 1200—1—15—.07(2) owners and/or operators must submit a site closure plan to
the Division to permanently close or make the change-in-service, unless such action is in response to
corrective action. The required assessment of the excavation zone under rule 1200—1—15—.07(3) must
be performed after notifying the Division but before completion of the permanent closure or a
change-in-service.
(b) To permanently close a tank, owners and/or 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 such as a cement compound, sand, gravel, etc The
inert solid material must have a specific gravity greater than 1.0.
(c) 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/or operators must empty and clean the tank by removing all
liquid and accumulated sludge and conduct a site assessment in accordance with rule
1200—I—15—07(3).
(d) Should an owner and/or operator elect to excavate and remove a tank from the site, such excavation
and removal must be done in accordance with Appendix 5.
(e) Once a lank has been excavated, it may be stored on-site or transported off-site for storage or disposal.
Excavated tanks which have not been cut into sections for disposal shall be considered in storage and
shall at all times, while in storage, be maintained in a vapor-free state and stored in accordance with
Appendix 5.
(0 "links may not be stored at a UST facility unless they are maintained in a vapor-free state, stored in
accordance with Appendix 5, and one of the following conditions are met:
1. (i) Tknks have been cleaned by removal of all liquids and accumulated sludges; and
(ii) Tknks have been purged of vapors so that any explosive levels do not exceed 20 percent
of the lower flammable limit for the regulated substance; and
(iii) links have an opening or openings installed which comprise a minimum of 10 percent of
the total tank surface area. Such openings will not be considered openings if they are in
contact or contiguous with the ground or surface on which the tank may be resting; or
2. l.(i) and (ii) above have been complied with and there are no remaining USTC either in use or
in a temporarily closed condition at the facility; or
3. Tknks which are removed from a UST facility and are intended for reuse at the same or another
facility as USB may be stored at a UST facility if the owner and/or operator meets the condi-
tions described in l.(i) and (ii), and either removes the tank off-site from a UST facility or puts
it back into service within 30 days of excavation.
(g) Tknks must be stored in a manner which does not pose safety hazards. Iknks must be stored in a posi-
tion with the tank's center of gravity closest to the ground. Ibnks may not be stacked. Iknks must
be secured so that they will not roll or slide across a level or sloping ground surface.
April, 1990 (Revised)
84.221
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UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200-1—15
(Rule 1200—1—15—.07, continued)
(h) Transportation and disposal of tanks will be subject to all applicable Federal, State, and local laws
and regulations concerning the safe transportation and proper disposal of such materials.
[Note: The following publications provide information on this subject: American Petroleum Institute
Recommended Practice 1604 (Second Edition, December 1987), Removal and Disposal of Used
Underground Petroleum Storage Tanks; American Petroleum Institute Publication 2015 (Third Edi-
tion, September 1985), Cleaning Petroleum Storage Tanks', American Petroleum Institute Recommended
Practice 1631 (Second Edition, December 1987), Interior Lining of Underground Storage Tanks. The
National Institute for Occupational Safety and Health Criteria Document 80-106 (1980 Edition), Criteria
for a Recommended Standard.. . Working in Confined Space may be used as guidance for conduc-
ting safe closure procedures at some petroleum tanks.]
(3) Assessing the site at closure or change-in-service.
(a) Before permanent closure or a change-in-service is completed, owners and/or operators must measure
for the presence of a release where contamination is most likely to be present at the UST site. In selec-
ting sample types, sample locations, and measurement methods, owners and/or operators must con-
sider the method of closure, the nature of the stored substance, the type of backfill, the depth to ground
water, and other factors appropriate for identifying the presence of a release. The requirements of this
paragraph are satisfied if one of the external release detection methods allowed in rule
1200—1—15—.04(3)(e) and (0 is operating in accordance with the requirements in rule
1200—1—15—.04(3) at the time of closure, and indicates no release has occurred.
(b) If contaminated soils, contaminated ground water, or free product as a liquid or vapor is discovered
under subparagraph (a) of this paragraph, or by any other manner, owners and/or operators must
begin corrective action in accordance with rule 1200—1—15—.06.
(4) Applicability to previously closed UST systems.
When directed by the Division, the owner and/or operator of an UST system permanently closed before
December 22, 1988 must assess the excavation zone and close the UST system in accordance with rule
1200—1—15—.07 if releases from the UST may, in the judgment of the Division, pose a current or potential
threat to human health and the environment.
(5) Closure records.
Owners and/or operators must maintain records in accordance with rule 1200—1—15—.03(5) that are capable
of demonstrating compliance with closure requirements under rule 1200—1—15—.07. The results of the ex-
cavation zone assessment required in rule 1200—1—15—.07(3) must 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/or operators who took the UST system out of service;
(b) By the current owners and/or operators of the UST system site; or
(c) By mailing these records to the Division if they cannot be maintained at the closed facility.
Authority: T.C.A. §§68—53—101 et seq. and 4—5—201 et seq. Administrative History: Original rule filed March
1, 1990; effective April IS, 1990.
April, 1990 (Revised)
84.222
-------
UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200—1
Appendix 1
Notification for Underground Storage Tanks
STATE USE ONLY
UST Division. 200 OoctoCt Btdfl.. 706 Choreh St.. TN 0HE. Na»hvjle. TN 3724 7-4101
ID NUMBER
TYPE OF NOTIFICATION
DATE RECEIVED
A. Dale Entered Into Comouler
B. Data Entry Clerk Initials
~ A. NEW FACILITY Q B. AMENDED [~ C. CLOSURE
No. o1 tanks al facility No. o1 continuation sheets attached
C. Owner Was Contacted to
INSTRUCTIONS
Clarify Responses. Commenls
Please tvoe or mint In Ink all items axceal "lionaluia" in section V. This form
must be completed for each location containing underground storage tanks. If
more than five (5) tanks are owned al this location, photocopy the following
sheets, and staple continuation sheets lo the form.
Notification U raquliad by Fadaral U« lor «M ustdarground Unb Ihil
hava baan VMd to atora raQulatad aubslancaa alnca January |, 1974, lhal
ii» lo lh* ground •• of Mif 4,1M4, c lhal in brought Into uaa afltr Mif 1,
1W8. Tha Information raquartad la itqulrad by S action 9002 ol (ha R*»o« raco*d». or ibMOoo ol luch f*co>di. you/ knowWdpa. bofcat. or
(Kfifltaoa.
Who Umi Notify} Sacvon £00? ol RCRA, u amandod. taquirai fuL i/iiau
~ o»n«'i of undtrgtCHrt tenki twi no** t»gt4au>d awbiunoat must
notify daaignaiad Suta or local acanoaa ol r*a aiiaianca of fr*a«i tanks. O«fwr
mtmi'- ' •
. i) m tf*a qj« itl an wftdfQiOtXtd 1*0091 f1* in uta on Movambar 1. I0M. or
t»o^m in 10 uta ahr* ftai Caia. any par ton wt*o o«>ni an ttdaiQ'Osxid ito/apa
tank irtad tor r« iuy);i, uia. or tfu>*'\|ing ol iap jlaiad tubiurcaa. 4n4
b)mN cut 0( any undarg/xxmd iicioa un* r» uv* baloia No»*mt«o» fl.
1V44. bul no longai ji uu on that dais. irff fmryoo »ho Ownod iuO\ l&rvl
*nmadtoonuvaion ol lu um.
a.iap»cUnVi:
4; pipofino tacltfal (Viduding QafhwVig linai) ragulaud \r l«r t\« Natural Gaa
Pipolina Safety Add 1K0. or tho KUia/doui Liquid Pipalin« Ac4 of 1079, or
wh»tfi la an Invasuw plp«ln* Uciify rogutalad tndar Su.« lawi;
1. aurfaca bmpoifidffwtfi, pna. ponda. or Uooona:
1. storm waiar or waua waur cofWcicn ijrauma; •
7. ftOMr-fvouQh piooau UnAa;
1. U^d irapa or aitodftlad ga^anng final da*CPy ralai*d lo o4 or (at
production and c»tha«|ng opwaaor\s;
t. itoraQ* *anht aituatad b an u^dorpro«^d a ma (tuch aa a Uaaam#^, talar,
miflawekrg drfu or MvW] U t+ atcwacw unk Ii vtu*l*d upon or iDov*
afc#tao» ot T* floor.
What Sub«Unca« A/a CovaiadT Tho novficaionraQutamaoU apply to undar
groi^d iiota^a tanka P%at contain lagiiatad aubtunoaa. Th>nq) ii
or Tv»a C>an«APi cr*a ^ound. Soma iua^u n% undo^iownd umj aiaring:
t. Guotnt, ubod QJ. 0* «:>«»•< I. indMipi*i K>l»fou, pa»pdd4l,
r^bodai or ^.Tiigjna.
Wful T«nkj A>* Ejclud+d7 TarU>» iamo«*d kom 9>« prouiO a/a not tvb)C»3
to nocfcawon. Oir^r unm a*duOvd bom noetaccn ar«:
1. la/m c ravdanca/ unit ol t.iOO ^aHona or lati copJOTf ut*C lo> 1 to>ing
r«tot fw*' lor nonomrr+'oar
2. unkj u**j lo/ »i»ing oJ lor co"i«ynpii»a oia on ?>a p>orrv»a«
*t«(« tl0r*<;
Urvdarground Slorapa TaM Dlvlalon
700 Doctor'a BwUdlng
701 ChLtch Sira«4
Tannaaaaa Oapanmant of HaaQh and E/ivlioivnarti
NaahviUa, 7N 3R47-410I
W^Mn To Notify Y 1. Ownora of und*>Q*0k*v1 »to«a^a Unka in u&o or ^aJ hava
P««on ia«an ov< of upaJt ill in tha QiOi^td, mutl nobfy
Py Ujy B, 1904 2. Owrwa »r*x> bring i^da*gro^d torapa untkj Into uta ahar Mdf
6. 1066. fTxul »>ot^ wifftin 30 Cajri of b^inping ^a unki Iruo vu. X 1 lha Suia
taq^'at nooloaion of 4f*f amandmant* la r«a lao^ty tand Inloonaion K> Suia
apanqr immadiaia>)r.
PtnitilM; Any «wn*r wt^ knowingly falls 10 notify u aubmh* IiIm lnh>rma«
lion ahail ba aub|*n>N LA 42. X, tlNlong. li. 2< \TH
Latitude Lonoilude
(DM AOd«M«
[ J I I
family Nam* m Corrpanf &aa Wa^fw, aa agftMjm
DTf iua IIP C«ria
SbM AOdraM {W&. ftoa na aOBCUO*)
rNM NMIM |*CMI MMWAM)
Wl
!i«m 10
Cb^ry
HrfCltttir
P»Q« 1
l'H-3197 (Rev. 2-11)
August, 1991 (Revised) 84.223
-------
UNDERGROUND STORAGE TANKS PROGRAM
(Appendix 1, continued)
CHAPTER 1200—1-
IIL TYPE OF OWNER
D Federal Government
~ Stale Government
Q Local Government
~ Commercial
~ Private
IV. INDIAN LANDS
Tanks are located on land within an Indian
Reservation or on other trust lands. D
Tanks are owned by native American _
nation, tribe, or Individual. LJ
I Tribe or Nation:
V. TYPE OF FACILITY
Select the Appropriate Facility Description
Gas Station
Petroleum Distributor
Air Taxi (Airline)
Aircraft Owner
Auto Dealership
_ Railroad
_ Federal - Non-Military
_ Federal - Military
_ Industrial
Contractor
. Trucking/Transport
_ Utilities
s Residential
_ Farm
. Other (Explain)
VI. CONTACT PERSON IN CHARGE OF TANKS
Name
Job Title
Address
Phone Number (Include Area Code)
VII. FINANCIAL RESPONSIBILITY
I have mot the financial responsibility requirements In
accordance wilh <0 CFR Subpart H
Check All that Apply
*T
1
i
r~
~
i
i
I C
Commercial Insurance
1 Risk Retention Group
D Guaranlee
J Surely Bond
D Letter ol Credit
J Stale Funds
) Trust Fund
] Other Method Allowed Specify
VIII. CERTIFICATION (Read and sign after compiling all sections)
I certify under penally of law that I have personally oxamlned and am familiar with the Inlormalion submitted in this and all attached
documents, and that based on my inquiry of '.hose individuals immediately responsible for obtaining the Information. I believe that the
submitted information is tiuo, accurate, and complete.
Name and official title ol owner
or owner's authorized representative (Print)
Signature
Date Signed
.
EPA estlmales public reporting burden lor this lorm to average 30 minutes per response including time for reviewing Instrudbns,
gathering and maintaining the data needed and completing and reviewing the lorm. Send comments regarding this burden estimale lo
Chief, Information Policy Branch PM-223. U.S. Environmental Protection Agency, <01 M Street, Washington D.C. 20460, marked
"Attention Desk Officer lor EPA." This lorm amends the previous notification form as printed in 40 CFR Part 280, Append'* I. Previous
editions oI this notification lorm may be used while supplies last.
Page 2
August, 1991 (Revised)
84.224
-------
UNDERGROUND STORAGE TANKS PROGRAM
(Appendix 1, continued)
CHAPTER 1200—1
IX. DESCRIPTION OF UNDERGROUND STORAGE TANKS (Compute for each lank at ihb location.) .
Tank Identification Number
TarVk No.
Tank No.
Tank No.
Tank No.
Tank No. ,
1. Statu* of Tank
(milk only on#) Currently in Use
1
1 1
1 1
1
1 1
Temporarily Out of Use
1 1
1
1 1
1 1
1 1
Permanently Out ol Use
1 1
1 1
1 1
1 1
1
Amendment of Information
1 1
1
1
1 1
1 1
2. Dale of Installation (mo./year)
3. Estimated Total Capacity (gallons)
4. Material of Construction
(Mark all that apply)
Asphalt Coaled or Dare Steel
, Cathodically Protected Steel
Epoxy Coaled Sle el
Composite (Steel with Fiberglass)
Fiberglass Reinforced Plastic
Lined Interior
Double Walled
Polyethylene Tank Jadtel
Concrete
Excavation Liner
Unknown
Olhor, Ploase specify
Has lank beon repaired?
I 1
f 1
1
1 1
1 1
5. Piping (Material)
(Mark aP that apply) Bar* Steel
1 J
1 1
1 1
1 1
Galvanised Sleel
L. 1
1 1
1 1
1 1
1 1
Fiberglass Reinforced Plastic
1 1
1 1
1 1
1
1 1
Copper
1 1
1 1
1 1
1 1
I 1
Cathodically Protected
1 1
1 1
1 1
1 !
1 1
6ouble Walled
r :~
1 1
1 I
1 1
Socondary Containment
L. . _J
1 1
1 1
1 1
1 1
Unknown
r n
1 1
1 1
1 1
1
Other, Please specify
6. Piping (Type)
(Mark all thai apply)
Suction: no valve a| tank
1
1 1
1 1
1
Suction: valve at lank
1 1
1
1 I
1
Piessure
l_ _l
! 1
1 1
1 1
1
Gravity Feed
i i
1 1
1 1
1 1
1 1
Has piping been repaired?
I i
1
1 1
1 1
1 1
Paje 1
August, 1991 (Revised)
84.225
-------
UNDERGROUND STORAGE TANKS PROGRAM
(Appendix J, continued)
CHAPTER 1200—1
Tank Identification Number
Tank No.
Tank No.
Tank No.
T ank No.
Tank No.
7. Substance Currently or lut Stored
In Groateit Ouantity by Volume
Gasoline
Olstel
Gasotal
Koroseno
Heating Oi
Used OJ
Other, Please specify
Hajaidous Substance
CERCLA name ar>d/or,
CAS number
Mixture ol Substances
Please specify
1
1 1
1 1
1 1
1
1 1
1 1
1 1
1
1 1
1
1 1
1 1
1
1 1
1
1 1
1
1
1 1
I- 1
I 1
1 1
1 1
1 1
1 1
1
1 1
1 1
1
1
1
1
1 1
1 1
1 1
1 1
1 1
1
1
1 1
1
1
X. TANKS OUT OF USE. OR CHANGE IN SERVICE
1. Closing ol Tank
A. Estimated date lasl used
(mo./d3y/yeai)
D. Estimate date lank ctasod
(moydayfyear)
C. Tank was removed Irom ground -
0. Tank was closed In ground
E. Tank fittod with Inert material
Describe
F. Change in service
1 1
1 1
1 1
1 1
1
1
I 1
1 1
1 1
1 1
1 1
1 1
1 1
1 1
1 1
1 1
1 1
1 I
/|
1 1
2. Site Assessment Completed
Evidence ol a leak detected
1 1
1 1
1 1
1
1
1
1
1. 1
1
Pepe 4
August, 1991 (Revised)
84.2251
-------
UNDERGROUND STORAGE TANKS PROGRAM
(Appendix 1, continued)
CHAPTER 1200—1
XL CERTIFICATION OF COMPLIANCE (COMPLETE FOR ALL NEW AND UPGRADED TANKS AT THIS LOCATION)
Tank Identification Number
Tank No.
Tank No.
Tank No. '
Tank No.
Tank No.
1. Installation
A. Installer certified by lank and
piping manufacturers
1 1
1 1
1 1
1 1
1
B. Installer certified or licensed by the
Implementing agency
C. Installation inspected by a
legislered engineer
0. Installation Inspected and
approved by implementing agency
E. Manufacturer's installation check-
lists have been completed
F. Another method allowed by Stale
agency. Please specify.
1 1
1 1
1 1
1 1
1 1
1 1
1 1
I 1
1 1
1 1
1
1 1
1 1
1 1
1 1
1 1
1 1
1 1
1 1
1 1
1
1
1
1 1
2. Release Detection (Mark all that apply)
TANK
PIPING
TANK
PIPING
TANK
PIPING
TANK
PIPING
TANK
PIPING
A. Manual lank gauging
B. Tank lightness testing
C. Inventory controls
0. Automatic lank gauging.
E. Vapor monitoring
F. Groundwater monitoring
G. Interstitial monhoring double walled
tank^iping
H. Interstitial monrioring/socondary
containment
L Automatic line leak detectors
J. Line tightness testing
K. Other method allowed by
Implementing Agency. Please
spocily.
~
n
n
~
~
~
~
~
n
n
~~~ ~ DGOi
~~~~~~~ ~ ~ D
~
n
n
n
~
~
!~ ~ ~ ~~~~~~~
~
(HI
n
m
i i
LJ
~
~
n
~
~
n
n
r~i
n
~
n
~~~ ~ ~~~
~ ~ ~ ~~~~~~~
~
n
~
~
i i
i j
n
3. Spill and Ovorfill Protection
A. OvertiU device installed
i i
C _J
1 1
i i
1 1
B. Spill device installed
i i
1 1
1 1
i i
1 1
~
OATH: 1 certify the information concerning installation tlut Is provided in section XI is true to the bost ol my beliel and knowledge
Installer;
Namo
Signature
Dale
Position
Company
Paom 5
August, 1991 (Revised)
84.2252
-------
UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200—1—15
Appendix 2 — Statement for Shipping Tickets and Invoices
Note - A Federal law (the Resource Conservation and Recovery Act (RCRA), as amended (Pub. L. 98-616)) re-
quires owners of certain underground storage tanks to notify designated State or local agencies by May 8,
1986, of the existence of their tanks. The Tennessee Petroleum Underground Storage link Act (T.CLA.
§68—53—101 etseq.) also contains notification requirements. Notifications for tanks brought into use after
July 1,1989 must be made 15 days in advance of installation. Consult EPA's regulations, issued on November
8, 1986 (40 CFR Part 280) and state law {T.CLA. §68—53—101 et seq.) and state regulations (Chapter
1200—1—15) to determine if you are affected by these laws and regulations.
Appendix 3
PETROLEUM CONTAMINATION CLEANUP LEVELS
GROUND WATER CLEANUP LEVEL
DRINKING WATER
NON—DRINKING WATER
BENZENE LEVEL
0.005 PPM
0.070 PPM
TOTAL PETROLEUM
HYDROCARBON
LEVEL
0.100 PPM
1.0 PPM
Appendix 4
PETROLEUM CONTAMINATION CLEANUP LEVELS
SOIL PERMEABILITY »-10 -4 CM/SEC 10 -4 TO 10 -6 CM/SEC -«10 -6CM/SEC
SOIL CLEANUP LEVEL
DRINKING WATER
NON-DRINKING WATER
10
50
B.T.X. LEVEL PPM
50
250
100
500
OR
TOTAL PETROLEUM HYDROCARBON CLEANUP LEVELS
SOIL PERMEABILITY »10 -4 CM/SEC 10 -4 TO 10 -6 CM/SEC -"10 -6CM/SEC
SOIL CLEANUP LEVEL
DRINKING WATER
NON-DRINKING WATER
T.P.H. PPM LEVEL
100
250
250
500
500
1000
April, 1990 (Revised)
84.226
-------
PETROLEUM UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200—1—15
APPENDIX 5
REMOVAL OF UNDERGROUND TANKS
(1) Preparation
(a) Drain product piping into the tank, being careful to avoid any spillage: Cap or remove product piping.
(b) Remove liquids and residues from the tank by using explosion-proof or air-driven pumps. Pump motors
and suction hoses must be bonded to the tank or otherwise grounded to prevent electrostatic ignition
hazards. It may be necessary to use a hand pump to remove the last few inches of liquid from the
bottom of the tank.
NOTE: (The Federal Resource Conservation and Recovery Act (RCRA) 42 U.S.C. Section 6901 et
seq., and the Tknnessee Hazardous Waste Management Act (HWMA) Part 1 T.CLA. $68—46—101 et
seq. place restrictions on disposal of certain residues that may be present in some underground storage
tanks. Residues from tanks that have held leaded gasoline should be treated with extreme caution.
Lead compounds and other residues in the tank may be classified as hazardous wastes).
(c) Excavate to the top of tank.
(d) Remove the fill pipe, gauge pipe, vapor recovery truck connection, submersible pumps, and other tank
fixtures. Remove the drop tube, except when it is planned to vapor-free the tank by using an eductor.
Cap or remove all non-product lines, such as vapor recovery lines, except the vent line. The vent line
must remain connected until the tank is purged. Temporarily plug all other tank openings so that all
vapors will exit through the vent line during the vapor-freeing process.
(2) Purging
(a) Remove flammable vapors by one of the methods described in B.2 through 5., or as required by local
codes. These methods provide a means for temporary vapor-freeing of the tank atmosphere. However,
it is important to recognize that the tank may continue to be a source of flammable vapors even after
following the vapor-freeing procedures described in 2 through 5. For this reason, caution must always
be exercised when handling or working around tanks that have stored flammable or combustible li-
quids. Before initiating work in the tank area or on the tank, a combustible gas indicator must be
used to assess vapor concentrations in the tank and work area. All work must be done in accordance
with Section. C, "Testing"
(b) Vent all vapors from the tank at a minimum height of 12 feet above grade and 3 feet above any adja-
cent roof lines until the tank is purged of flammable vapors. The work area must be free from sources
of ignition.
(c) Flammable and combustible vapors may be purged with an inert gas such as carbon dioxide (CO2)
or nitrogen (N2)- This method is not to be utilized if the tank is to be entered for any reason, as the
tank atmosphere will be oxygen deficient. The inert gas is to be introduced through a single tank open-
ing at a point near the bottom of the tank at the end of the tank opposite the vent. When inert gases
are used, they must be introduced under low pressure to avoid the generation of static electricity. When
using CO2 or N2. pressures in the tank must not exceed 5 pounds per square inch gauge.
CAUTION: The process of introducing compressed gases into the tank may create a potential igni-
tion hazard as the result of the development of static electrical charges. The discharging device must
therefore be grounded. Explosions have resulted from the discharging of CO2 fire extinguishers into
tanks containing a flammable vapor-air mixture. CO2 extinguishers must not be used for inerting flam-
mable atmospheres.
April, 1990 (Revised)
84.227
-------
PETROLEUM UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200—1—15
(Appendix 5, continued)
(d) If the method described in 3 is not practical, the vapors in the tank may be displaced by adding solid
carbon dioxide (dry ice) to the tank in the amount of at least 1.5 pounds per 100 gallons of tank capacity.
The dry ice should be crushed and distributed evenly over the greatest possible area in the tank to
promote rapid evaporation. As the dry ice vaporizes, flammable vapors will flow out of the tank and
may surround the area. Therefore, where practical, plug all tank openings except the vent after in-
troducing the solid COj and continue to observe all normal safety precautions regarding flammable
or combustible vapors. Make sure that all of the dry ice has evaporated before proceeding.
(e) Flammable vapors may be exhausted from the tank by one of two methods of tank ventilation listed
below:
1. Ventilation using an eductor-type air mover usually driven by compressed air. The eductor-type
air mover must be properly bonded to prevent the generation and discharge of static electricity.
When using this method, the fill (drop) tube must remain in place to ensure ventilation at the
bottom of the tank. T^nks equipped with fill (drop) tubes that are not removable should be purg-
ed by this method. An eductor extension shall be used to discharge vapors a minimum of 12
feet above grade and at least 3 feet above any adjacent roof line.
2. Ventilation with a diffused air blower. When using this purging method, it is imperative that
the air-diffusing pipe is properly bonded to prevent the discharge of a spark. Fill (drop) tubes
must be removed to allow proper diffusion of the air in the tank. Air supply should be from
a compressor that has been checked to ensure a clean air supply and is free from volatile vapors.
Air pressure in the tank must not exceed 5 pounds per square inch gauge.
(3) Testing
(a) The tank atmosphere and the excavation area are to be regularly tested for flammable or combustible
vapor concentrations until the tank is removed from both the excavation and the site. Such tests are
to be made with a combustible gas indicator which is properly calibrated according to the manufac-
turer's instructions and which is thoroughly checked and maintained in accordance with the manufac-
turer's instructions. Persons responsible for testing must be completely familiar with the use of the
instrument and the interpretation of the instrument's readings.
(b) The tank vapor space is to be tested by placing the combustible gas indicator probe into the fill open-
ing with the drop tube removed. Readings should be taken at the bottom, middle, and upper portions
of the tank, and the instrument should be cleared after each reading. If the tank is equipped with
a non-remcfvable fill tube, readings are to be taken through another opening. Liquid product must
not enter the probe. Readings of 20 percent or less of the lower flammable limit must be obtained
before the tank is considered safe for removal from the ground.
(c) Tfcnks purged with an inert gas must be sampled with an oxygen indicator and the oxygen content
must be considered while interpreting combustible gas indicator results.
(4) Removal
(a) After the tank has been freed of vapors and before it is removed from the excavation, plug or cap
all accessible holes. One plug must have a 1/8-inch vent hole to prevent the tank from being subjected
to excessive differential pressure caused by temperature changes. The tank must always be positioned
with this vent plug on top of the tank during subsequent transport and storage.
April, 1990 (Revised)
84.228
-------
PETROLEUM UNDERGROUND STORAGE TANKS PROGRAM
CHAPTER 1200-1-15
(Appendix 5, continued)
(b) Excavate around the tank to uncover it for removal. Remove the tank from the excavation and place
it on a level surface. Use wood blocks to prevent movement of the tank after removal and prior to
loading on a truck for transportation. Use screwed (boiler) plugs to plug any conosion holes in the
tank shell.
(c) Precautions must be taken to assure any vapors left in the tank do not reach a combustible level. If
this situation occurs, the tank must be purged according to Section E
(d) Before the tank is removed from the site, the tank atmosphere must be checked with a combustible
gas indicator to ensure that it does not exceed 20 percent of the lower flammable limit.
(e) The lank must be secured on a truck for transportation to the storage or disposal site with the 1/8-inch
vent hole located at the uppermost point on the tank. Tknks must be transported in accordance with
all applicable local, state, and federal laws and regulations.
(f) Tfenks must be labeled after removal from the ground but prior to removal from the site. Regardless
of the condition of the tank, the label must contain a warning against certain t; ies of reuse. The former
contents and present vapor state of each tank, including vapor-freeing treatment and data must also
be indicated. The label must be similar to the following in legible letters at least 2 inches high:
TANK HAS CONTAINED LEADED GASOLINE*
NOT VAPOR FREE
NOT SUITABLE FOR STORAGE OF FOOD OR LIQUIDS
INTENDED FOR HUMAN OR ANIMAL CONSUMPTION
DATE OF REMOVAL: MONTH/DAY/YEAR
*Or other flammable/combustible liquid. Use the applicable designation, for example, DIESEL.
Tanks that have held leaded motor fuels (or whose service history is unknown) must also be clearly
labeled with the following information.
TANK HAS CONTAINED LEADED GASOLINE
LEAD VAPORS MAY BE RELEASED IF HEAT
IS APPLIED TO THE TANK SHELL
STORAGE OF USED TANKS
Storage Procedures
(a) Tanks must be vapor-freed before being placed in storage. I&nks must also be free of all liquids and
residues. All tank openings must be tightly plugged or capped, with one plug having a I/8-inch vent
hole to prevent the tank from being subjected to excessive differential pressure caused by temperature
changes. Tknks must be stored with the vented plug at the highest point on the tank. All tanks must
be labeled.
(b) Used tanks must be stored in secure areas where the general public will not have access.
April, 1990 (Revised)
84.229
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
1200—1—15—.08 FINANCIAL RESPONSIBILITY.
(1) Applicability
(a) This rule applies to owners and operators of all petroleum underground storage tank (UST) systems
except as otherwise provided in this paragraph,
(b) Owners and operators of petroleum UST systems are subject to these requirements if they are in opera-
tion on or after the date for compliance established in rule 1200—1—IS—.08(2).
(c) State and federal government entities whose debts and liabilities are the debts and liabilities of a state
or the United States are deemed to meet financial responsibility requirements without having to meet
requirements of this rule.
(d) The requirements of this rule do not apply to owners and operators of any UST system described in
rule 1200—1—15—.01 (I )(b).
(e) If the 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 complies, the date set for compliance at a particular facili-
ty is determined by the characteristics of the owner as set forth in rule 1200—1—15—.08(2).
(2) Compliance Dates
Owners of petroleum underground storage tanks are required to comply with the requirements of this rule
by the following dates:
(a) All petroleum marketing firms owning 1,000 or more US"ft and all other UST owners that report a
tangible net worth of $20 million or more to the U.S. Securities.and Exchange Commission (SEC),
Dun and Bradstreet, the Energy Information Administration, or the Rural Electrification Administra-
tion; January 24, 1989.
(b) All petroleum marketing firms owning 100-999 USTs; October 26, 1989.
(c) All petroleum marketing firms owning 13-99 UST^ at more than one facility; April 26, 1991.
(d) All petroleum UST owners not described in subparagraphs (a), (b), or (c) of this paragraph, including
all local government entities; October 26, 1991.
(3) Definition of Ttrms.
When used in this rule, the following terms shall have the meanings given below:
(a) "Accidental release?' means any sudden or nonsudden release of petroleum from an underground storage
tank that results in a need for corrective action and/or compensation for bodily injury or property
damage neither expected nor intended by the tank owner or operator.
(b) "Board" means Tennessee Petroleum Underground Storage Iknk Board established under T.CLA.
§68-53—101 et seq.
(c) "Bodily injury" shall have the meaning given to this term by applicable Tknnessee law.
August, 1991 (Revised)
/
84.230
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(d) "Commissioner" means Commissioner of Health and Environment, his authorized representatives,
or in the event of his absence or a vacancy in the Commissioner's Office; the Deputy Commissioner.
(e) "Controlling interest" means direct ownership of at least 50 percent of the voting stock of another entity.
(0 "Department" means the Department of Health and Environment.
(g) "Financial reporting year" means the latest consecutive twelve-month period for which any of the follow-
ing 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 Bradstreet; or (3) annual reports submit-
ted to the Energy Information Administration or the Rural Electrification Administration. "Financial
reporting year" may thus comprise a fiscal or a calendar year period.
(h) "Fund" means petroleum underground storage tank fund established under T.CA. S68—53—101 et
seq., unless the context clearly indicates otherwise.
(i) "Legal defense cost" is any expense that an owner or operator or provider of financial assurance in-
curs in defending against claims or actions brought (1) by EPA or the Commissioner to require correc-
live 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 mechanism.
(j) "Occurrence" means the discovery of environmental contamination at a specific time and date, due
to the release of petroleum products from petroleum underground storage tanks.
(k) "Owner or operator^' when the owner or operator are separate parties, refers to the party that is ob-
taining or has obtained financial assurances.
(1) "Petroleum marketing facilities" include all facilities at which petroleum is produced or refined and
all facilities from which petroleum is sold or transferred to other petroleum marketers or to the public.
(m) "Petroleum marketing fitms" are all firms owning petroleum marketing facilities. Firms owning other
types of facilities with USTi as well as petroleum marketing facilities are considered to be petroleum
marketing firms.
(n) "Property damage" shall have the meaning given this term by applicable Tennessee law. Exclusions
for property damage shall not include corrective action associated with releases from tanks which are
covered by the policy.
(o) "Provider of'financial assurance" means an entity that provides financial assurance to an owner or
operator of an underground storage tank through one of the mechanisms listed in rule
1200—1—15—.08(6) through rule 1200—1—15—.08(13), including a guarantor, insurer, risk retention
group, surety, issuer of a letter of credit, or the state of Tennessee.
(p) "Substantia] business relationship" means the extent of a business relationship necessary under ap-
plicable Tennessee law to make a guarantee contract issued incident to that relationship valid and en-
forceable. A guarantee contract is issued "incident to that relationship" if it arises from and depends
on existing economic transactions between the guarantor and the owner or operator.
(q) "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. Fbr purposes of this defini-
tion, "assets" means all existing and all probable future economic benefits obtained or controlled by
a particular entity as a result of past transactions.
(r) "Termination" under 1200—1—15—.08(8)1. and 1200—1—15—.08(8)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.
August, 1991 (Revised)
84.231
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—08, continued)
(4) Amount and Scope of Required Financial Responsibility.
(a) Owners or operators of petroleum 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 per-occurrence amounts:
1. For owners or operators of petroleum underground storage tanks that are located at petroleum
marketing facilities, or that handle an average of more than 10,000 gallons of petroleum per month
based on annual throughput for the previous calendar year; SI million.
2. For all other owners or operators of petroleum underground storage tanks; $500,000.
3. For owners or operators who have paid all annual fees and have met all obligations to participate
in the fund, the fund shall be responsible for the following:
(i) For owners or operators of 1 to 12 petroleum underground storage tanks, corrective action
costs above ten thousand dollars ($10,000) in an amount not to exceed one million dollars
(Si,000,000) per site per occurrence and court awards involving third party liability claims
above ten thousand dollars (S10,000) in an amount not to exceed one million dollars
(51,000,000).
(ii) For owners or operators of 13 to 999 petroleum underground storage tanks, corrective ac-
tion above twenty thousand dollars (S20,000) in an amount not to exceed one million
(51,000,000) per site per occurance, and court awards involving third party liability claims
above an amount not less than twenty five thousand dollars (525,000) nor more than fifty
thousand dollars, and not to exceed one million dollars (51,000,000). The amount between
twenty five thousand dollars (525,000) and fifty thousand dollars (550,000) will be set an-
nually by the Board. Effective May 1, 1990 the amount is thirty seven thousand five hun-
dred dollars (537,500) for third party claims.
(iii) For owners or operators of 1,000 or more petroleum underground storage tanks, corrective
action costs above fifty thousand dollars (550,000) in an amount not to exceed one million
dollars (51,000,000) per site per occurence, and court awards involving third party liability
claims above an amount not less than one hundred fifty thousand dollars (5150,000) nor
more than three hundred thousand dollars (5300,000), and not to exceed one million dollars
(51,000,000). The amount between one hundred fifty thousand dollars (5150,000) and three
hundred thousand dollars (5300,000) will be set annually by the Board. Effective May 1,
1990 the amount is two hundred twenty-five thousand dollars (5225,000) for third party
claims.
This part is subject to rule 1200—1—15—.08(20)(d), and rule 1200—1—15—.09. The owners
or operators eligible for fund benefit roust have a per occurrence financial assurance of
either twenty thousand dollars (520,000) for 1 to 12 petroleum underground storage tanks,
fifty seven thousand five hundred dollars (557,500) for 13 to 999 petroleum underground
storage tanks or two hundred seventy five thousand dollars (5275,000) for 1,000 or more
petroleum underground storage tanks. In the event the fund has insufficient resources to
meet corrective action and/or third party compensation costs, the responsibility for paying
for corrective action and/or third party compensation costs shall be the responsibility of
the owner, operator, or other responsible party.
(b) Owners or operators of petroleum 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. lb assure that owners or operators can meet financial requirements for entry to the fund for
both corrective action and third party liability, owners or operators eligible for the fund must
have annual aggregate amounts at least as large as the amount in the Annual Aggregate Amount
column of Tbble 1 which corresponds to the number of tanks owned.
August, 1991 (Revised)
84.232
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UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
Tkble 1
Number of links Owned vs. Financial Responsibility Requirements
Third Party
Corrective
Compensation
Number of
Action Per
Per
Tbtal Per
Annual
Iknks
Occurrence
Occurrence
Aggregate
Aggregate
Owned
Amount
Amount
Amount
Amount*
1-12
$10,000
$10,000
$20,000
$20,000
13-999
$20,000
$37,500
$57,500
$77,500
1000+
550,000
$225,000
$275,000
$375,000
* The Annual Aggregate Amount for owners of 13 to 999 tanks is determined by multiplying the Corrective Action
Per Occurence Amount by 2, then adding the Third Party Compensation Per Occurence Amount. The Annual Ag-
gregate Amount for owners of 1,000 or more tanks is determined by multiplying the Corrective Action Per Occurrence
Amount by 3, then adding the Third Party Compensation Per Occurence Amount.
August, 1991 (Revised)
84.2321
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(c) For the purposes of subparagraphs (b) and (0 only, "a petroleum underground storage tank" means
a single containment unit and does not mean combinations of single containment units.
(d) Except as provided In subparagraph (e), if the owner or operator uses separate mechanisms or separate
combinations of mechanisms to demonstrate financial responsibility for:
1. taking corrective action; or
2. compensating third parties for bodily injury and property damage caused by accidental releases;
the amount of assurance provided by each mechanism or combination of mechanisms must be in the
full amount specified in subparagraphs (a) and (b) of this paragraph.
(e) If an owner or operator uses separate mechanisms or separate combinations of mechanisms to
demonstrate financial responsibility for different petroleum 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.
(0 Owners or operators shall review the amount of aggregate assurance provided whenever additional
petroleum underground storage tanks are acquired or installed. If the number of petroleum underground
storage tanks for which assurance must be provided exceeds 12, the owner or operator shall demonstrate
financial responsibility in the amount defined in subparagraph (b) by the anniversary of the date on
which the mechanism demonstrating financial responsibility became effective. If assurance is being
demonstrated by a combination of mechanisms, the owner or operator shall demonstrate financial
responsibility in the amount defined in subparagraph (b) by the first-occurring effective date anniver-
sary of any one of the mechanisms combined (other than a financial test or guarantee) to provide
assurance.
(g) The amounts of assurance required under this paragraph 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.
(5) Allowable Mechanisms and Combinations of Mechanisms
(a) Subject to the limitations of subparagraph (b) of this paragraph, an owner or operator may use any
one or combination of the mechanisms listed in rule 1200—1—15—.08(6) through rule
1200—1—15—.08(13) to demonstrate financial responsibility under this rule for one or more underground
storage tanks.
August, 1991 (Revised)
84.233
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(b) An owner or operator may use self-insurance in combination with a guarantee only if, for the purpose
of meeting the requirements of the financial test under this rule, the financial statements of the owner
or operator are not consolidated with the financial statements of the guarantor.
(6) Financial Tfest of Self-Insurance
(a) An owner or operator, and/or guarantor, may satisfy the requirements of rule 1200—1—15—.08(4)
by passing a financial test as specified in this paragraph, lb pass the financial test of self-insurance;
the owner or operator, and/or guarantor must meet the criteria of subparagraph (b) or (c) of
paragraph based on year-end financial statements for the latest completed fiscal year or financial repor-
ting year. If an owner or operator has in effect more than one financial test for self-insurance at any
one time to assure financial responsibility, the owner or operator must have a tangible net worth and/or
a net working capital of at least (X) times the sum of the total amounts for which this financial test
is used, where (X) equals the Self-Insurance Amount from Tkble 2 divided by the Annual Aggregate
Amount from Ikble 2 based on the number of tanks for which this financial test is used. Ikble 2 shall
be used in both subparagraphs (b) and (c) in determining the tangible net worth and/or net working
capital which an owner or operator and/or guarantor must demonstrate in order to self-insure for cor-
rective action and/or third party liability based on the number of tanks for which this financial test
is used.
Ikble 2
Third Party
Number
Corrective
Compensation
of
Action Per
Per
Ibtal Per
Annual
Self
Iknks
Occurrence
Occurrence
Occurrence
Aggregate
Insurance
Owned
Amount
Amount
Amount
Amount
Amount
1-12*
$10,000
$10,000
$20,000
$20,000
$20,000*
1-12
$10,000
$10,000
$20,000
$20,000
$30,000
13-999
$20,000
$37,500
$57,500
$77,500
$117,500
1000+
$50,000
$225,000
$275,000
$375,000
$525,000
This applies when either all tanks and associated piping arc new, upgraded, a combination of new and upgrad
ed, or are located at only one facility.
August, 1991 (Revised)
84.234
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(b) If the owner or operator, and/or guarantor desires to self-insure and docs not choose to meet the re-
quirements of (6)(c), the owner or operator and/or guarantor must meet the requirements of this
subparagraph.
1. The owner or operator, and/or guarantor, must have a tangible net worth of at least (X) times
the sum of (i), (Li) and (iii). (X) equals the Self-Insurance Amount from Tkble 2 divided by the
Annua] Aggregate Amount from Tkble 2 based on the number of tanks for which this financial
test is used.
(i) The owner or operator may self-insure for all or part of the Annual Aggregate Amount
specified in rule 1200—1—15—.08(4)(b) based on the number of underground storage tanks
for which this financial test is used to demonstrate financial responsibility.
(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 Parts 264.101, 264.143, 264.145,
265.143, 265.145, 264.147, and 265.147 or to a state implementing agency under a state pro-
gram 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 Part 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 letter signed by the chief financial officer
worded as specified in subparagraph (d).
3. 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 Electrification Administration; or
(ii) Report annually the firm's tangible net worth to Dun and Bradstrtet, and Dun and Bradstreet
must have assigned the firm a financial strength rating of 4A or 5A.
4. 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) If the owner or operator, and/or guarantor desires to self-insure and does not choose to meet the re-
quirements of 6(b), the owner or operator and/or guarantor must meet the requirements of this
subparagraph.
1. The owner or operator, and/or guarantor must meet the financial test requirements of subpart
(i) or (ii) of this part.
(i) The owner or operator must have:
(I) Net working capital and tangible net worth each at least (X) times the amount of
liability coverage to be demonstrated by this test, where (X) equals the Self-Insurance
Amount from Tkble 2 divided by the Annual Aggregate Amount from Tkble 2 based
on the number of tanks for which this financial test is used; and
01) Tkngible net worth at least (X) times the amount of liability coverage to be
demonstrated by this test, where (X) equals the Self-Insurance Amount from Tkble
2 divided by the Annual Aggregate Amount from Tkble 2 based on the number of
tanks for which this financial test is used; and
August, 1991 (Revised)
84.235
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-^1—15
(Rule 1200—1—15—.08, continued)
A. At least 90 percent of his total assets; or'
B. At least (X) times the amount of liability coverage to be demonstrated by this
test, where (X) equals the Self-Insurance Amount from Ihble 2 divided by the
Annual Aggregate Amount from Ikble 2 based on the number of tanks for which
this financial test is used; and
(ii) The owner or operator must have:
(I) A current rating for his most recent bond issuance of AAA, AA, A or BBB as issued
by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and
(II) Tangible net worth at least (X) times the amount of liability coverage to be
demonstrated by this test, where (X) equals the Self-Insurance Amount from l
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1
(d)
Letter from Chief Financial Officer
I am the chief financial officer of [insert: name and address of the owner or operator, or guaran-
tor]. This letter is in support of the use of [insert: "the financial test of self-insurancej' and/or
"guarantee"] to demonstrate financial responsibility for [insert: "taking corrective action" and/or "com-
pensating third parties for bodily injury and property damage"] caused by 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 following facilities are assured by this financial test or a finan-
cial lest under an authorized state program by this [insert: "owner or operator?' and/or "guarantor"]:
[List for each facility: the name and address of the facility where tanks assured by this financial test
are located, the number of tanks at each facility, and the facility identification number(s). 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 notifica-
tion submitted pursuant to rule 1200—1—15—.02(3).
A [insert: "financial test" and/or "guarantee"] is also used by this [insert: "owner or operator!'
or "guarantor"] to demonstrate 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:
Amount EPA Regulation:
Closure (264.143 and 265.143) .....$
Post-Closure Care (264.145 and 265.145) $
Liability Coverage (264.147 and 265.147) $
Corrective Action (264.101(b)) $
Plugging and Abandonment (144.63) S
or
Amount Authorized State Programs:
..$
..S
..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 or financial reporting year.
—15—.08, continued)
Tb demonstrate that it meets the financial test under subparagraph (b) or (c), the1 chief financial of-
ficer of the owner or operator, and/or guarantor, must sign, within 120 days of the close of each finan-
cial reporting year, as defined by the twelve-month period for which financial statements used to sup-
port the financial test are prepared, a letter worded exactly as follows, except that the instructions in
brackets are to be replaced by the relevant information and the brackets deleted:
Closure (Rule 1200—I—11—.06(8)(d) and
rule 1200—1—11— .05(8)(d))
Post-Closure Care (Rule 1200—1—II—.06(8)(f) and
rule 1200—I—11—.05(8)(0)
Liability Coverage (Rule 1200—1—11—06(8)(n) and
rule 1200—1—11—.05(8)(n))
Corrective Action (Rule 1200—1—11—.06(1)2.)
Plugging and Abandonment (Rule 1200—4—6—.09(6))
April, 1990 (Revised)
84.237
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
[Fill in the information for Alternative I if the criteria of subparagraph (b) of rule
1200—1—15—.08(6) are being used to demonstrate compliance with the financial test requirements.
Fill in the information for Alternative II if the criteria of subparagraph (c) of rule
1200—1—15—.08(6) are being used to demonstrate compliance with the financial test requirements.]
ALTERNATIVE I
(1) Amount of annual UST aggregate coverage being assured by a financial test, and/or guarantee $
(2) Amount of corrective action, closure and post-closure care costs, liability coverage; and plugging and aban-
donment costs covered by a financial test, and/or guarantee S
(3) Sura of lines 1 and 2 S
(4) Tbtal tangible assets $
(5) Tbtal 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) Ihngible net worth [subtract line 5 from line 4] $
Yes No
(7) Is line 6 at least (X) times line 3?
(X) equals the Self-Insurance Amount from Ikble 2 divided by the Annual Aggregate Amount from Ibble
2 based on the number of tanks for which this financial test is used.
(8) Have financial statements for the latest fiscal year been filed with the Securities and Exchange Commis-
sion?
(9) Have financial statements for the latest fiscal year been filed with the Energy Information Administration?
(10) Have financial statements for the latest fiscal year been filed with the Rural Electrification Administration?
(11) Has financial information been provided to Dun and Brads tree t, and has Dun and Bradstreet provided a
financial strength rating of 4A or 5A? [Answer 'Yes" only if both criteria have been met.]
August, 1991 (Revised)
84.238
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200-1—15
(Rule 1200—1—15—.08, continued)
ALTERNATIVE II
(1) Amount of annual UST aggregate coverage being assured by a financial test, and/or guarantee
S ¦
(2) Amount of corrective action, closure and post-closure care costs, liability coverage, and plugging and aban-
donment costs covered by a financial test, and/or guarantee $
(3) Sum of lines 1 and 2 S
(4) Tbtal tangible assets $
(5) Tbtal 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] S
(6) Tangible net worth [subtract line 5 from line 4J $
(7) Tbtal assets in the U.S. [required only if less than 90 percent of assets are located in the U.S.] S
Yes No
(8) Is line 6 at least (X) times line 3?
(X) equals the Self-Insurance Amount from Tkble 2 divided by the Annual Aggregate Amount from l&ble
2 based on the number of tanks for which this financial test is used.
(9) Are at least 90 percent of assets located in the U.S.? [If "NoJ' complete line 10.]
(10) Is line 7 at least (X) times line 37
(X) equals the Self-Insurance Amount from "fable 2 divided by the Annual Aggregate Amount from Ikble
2 based on the number of tanks for which this financial test is used.
[Fill in either lines 11-14 or lines 15-17:]
(11) Current assets $
(12) Current liabilities S
(13) Net working capital (subtract line 12 from line 11] $
August, 1991 (Revised)
84.239
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
Yes No
(14) Is line 13 at least (X) times line 3?
(X) equals the Self-Insurance Amount from Tkble 2 divided by the Annual Aggregate Amount from Tkble
2 based on the number of tanks for which this financial test is used.
(15) Current bond rating of most recent bond issue..
(16) Name of rating service
(17) Date of maturity of bond
(18) Have financial statements for the latest flscaJ year been filed with the SEC, the Energy Information Ad-
ministration, or the Rural Electrification Administration?
[If "No" please attach a report from an independent certified public accountant certifying 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 statement.]
I hereby certify ..that the wording of this letter is identical to the wording specified in rule
1200—1—15—.08(6)(d) as such regulations were constituted on the date shown immediately below.
[Signature] [Name] [Title] [Date]
(e) If an owner or operator using the financial test of self-insurance to provide financial assurance finds
that he or she no longer meets the requirements of the financial test based on the year-end financial
statements, the owner or operator must obtain alternative coverage within 150 days of the end of the
year for which financial statements have been prepared.
(0 The Commissioner may require reports of financial condition at any time from the owner or operator,
and/or guarantor. If the Commissioner finds, on the basis of such reports or other information, that
the owner or operator, and/or guarantor, no longer meets the financial test requirements of rule
1200—1—15—.08(6)(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 be or she
no longer meets the requirements of the financial test based on the year-end financial statements, or
within 30 days of notification by the Commissioner that he or she no longer meets the requirements
of the financial test, the owner or operator must notify the Commissioner of such failure within 10 days.
(7) Guarantee
(a) An owner or operator may satisfy the requirements of rule 1200—1—15—.08(4) by obtaining a guarantee
that conforms to the requirements of this paragraph. The guarantor must be:
August, 1991 (Revised)
84.240
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
1. A firm that:
(i) possesses a controlling interest in the owner or operator;
(ii) possesses a controlling interest in a firm described under (l)(i); or
(iii) is controlled through stock ownership by a common parent firm that possesses a controll-
ing interest in the owner or operator; or
2. A firm engaged in a substantia] business relationship with the owner or operator and issuing
the guarantee as an act incident to that business relationship.
(b) Within 120 days of the close of each financial reporting year the guarantor must demonstrate that
it meets the financial test criteria of rule 1200—1—15—.08(6) based on year-end financial statements
for the latest completed financial reporting year by completing the letter from the chief financial of-
ficer described in rule 1200—1—15— ,08(6)(d) and must deliver the letter to the owner or operator.
If the guarantor fails to meet the requirements of the financial test at the end of any financial repor-
ting year, within 120 days of the end of that financial reporting year the guarantor shall send by cer-
tified mail, before cancellation or nonrenewal of the guarantee, notice to the owner or operator. If
the Commissioner notifies the guarantor that he no longer meets the requirements of the financial
test of rule 1200—1—15— .08(6)(b) or (c) and (d), the guarantor must notify the owner or operator
within 10 days of receiving such notification from the Commissioner. 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 alternate coverage as specified
in rule 1200—1—15—.08(20).
(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 organized under
the laws of the stale of {name of state], herein referred to as guarantor, to the State of Tfennessee, Depart-
ment of Health and Environment 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 financial test criteria of rule 1200—1—15—.08(6)(b) or (c) and (d) and agrees
to comply with the requirements for guarantors as specified in rule 1200—1—15—.08("7)(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, the name(s) and address(es) of the faciiity(ies) where the tanks
are located, and the facility identification number(s). 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 pro-
vided in the notification submitted pursuant to rule 1200—1—15—.02(3) and the name and address of the
facility.) This guarantee satisfies rule 1200—1—15—.08 requirements for assuring funding for {insert: 'tak-
ing corrective action" and/or "compensating third parties for bodily injury and property damage" caused
by accidental 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 occurrence and [insert dollar amount] annual aggregate.
April, 1990 (Revised)
84.241
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(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 "Inci-
dent to our business relationship with" (if guarantor is providing the guarantee as an incident to a substan-
tial business relationship with owner or operator)] [owner or operator], guarantor guarantees to the Depart-
ment and to any and all third parties that: In the event that [owner or operator] fails to provide alternate
coverage within 60 days after receipt of a notice of cancellation of this guarantee and the Commissioner
has determined or suspects that a release has occurred at an underground storage tank covered by this
guarantee, the guarantor, upon instructions from the Commissioner, shall fund a standby trust fund in ac-
cordance with the provisions of rule 1200—1—15—.08(18), in an amount not to exceed the coverage limits
specified above. In the event that the Commissioner 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 rule 1200—1—15—06, the guarantor upon written instructions from the Commissioner shall fund a
standby trust in accordance with the provisions of rule 1200—1—15—.08(18), 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 parlies caused by accidental releases
arising from the operation of the above-identified 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 instruc-
tions from the Commissioner, shall fund a standby trust in accordance with the provisions of rule
1200—1—15—.08(18) 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 or financial reporting year before cancellation of
this guarantee, the guarantor fails to meet the financial test criteria of rule 1200—1—15—.08(6)(b) or (c)
and (d), guarantor shall send within 120 days of such failure, by certified mail, notice to [owner or operator].
The guarantee will terminate 120 days from the date of receipt of the notice by [owner or operator], as evidenc-
ed by the return receipt.
(5) Guarantor agrees to notify [owner or operator] by certified mail of a voluntary or involuntary proceeding
under Title II (Bankruptcy), 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 Chapter 1200—1—15.
(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 rule 1200—1—15—.08 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 effective no earlier than 120 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 operator] under a workers' compensation, disability benefits, or
unemployment compensation law or other similar law;
(b) Bodily injury to an employee of [insert owner or operator] arising from, and in the course of, employ-
ment by [insert owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to
others of any aircraft, motor vehicle, or watercraft;
April, 1990 (Revised)
84.242
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(d) Property damage to any property owned, rented, loaned to, in the care; custody, or control of, or oc-
cupied by [insert owner or operator] that is not the direct result of a release from a petroleum
underground storage tank; or
(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 rule 1200—1—15—.08(4).
(9) Guarantor expressly waives notice of acceptance of this guarantee by the Department, 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 specified in rule
1200—1—15—.08(7)(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 rule 1200—1—15—.08(4)
must establish a standby trust fund when the guarantee is obtained. Under the terms of the guarantee,
all amounts paid by the guarantor under the guarantee will be deposited directly into the standby trust
fund in accordance with instructions from the Commissioner under rule 1200—1—15—.08(18). This
standby trust fund must meet the requirements specified in rule 1200—1—15—.08(13).
(8) Insurance and Risk Retention Group Coverage
(a) An owner or operator may satisfy the requirements of rule 1200—1—15—.08(4) by obtaining liability
insurance that conforms to the requirements of this paragraph 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 insurance policy.
(b) Each insurance policy must be amended by an endorsement worded as specified in part 1. or evidenced
by a certificate of insurance worded as specified in part 2., except that instructions in brackets must
be replaced with the relevant information and the brackets deleted:
April, 1990 (Revised)
84.243
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
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:
(i) This endorsement certifies that the policy to which the endorsement is attached provides liability in-
surance covering the following underground storage tanks:
[List the dumber of tanks at each facility, the name(s) and addrcss(es) of the facility(ies), and the facility
identification number(s) 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 rule 1200—1—15—.02(3) and the name and
address of the facility.]
For [insert: "taking corrective action" and/or "compensating third parties for bodily injury and pro-
perty damage" caused by accidental release; 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, indicate the type of coverage applicable to each lank or location) arising from operating
the underground storage tank(s) identified 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 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 underground storage tank or location], 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].
August, 1991 (Revised)
84.244
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(ii) 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 items (I) through (V) of this
subpart (ii) are hereby amended to conform with items (I) through (V):
(I) Bankruptcy or insolvency of the insured shall not relieve the ["Insurer" or "Group"] of its obliga-
tions under the policy to which this endorsement is attached.
(II) The ["Insurer" or "Group"] is liable for the payment of amounts within any deductible applicable
to the policy to the provider of corrective action or a damaged third-party, with a right of reim-
bursement by the insured for any such payment made by the ["Insurer" or "Group"]. This provi-
sion does not apply with respect to that amount of any deductible for which coverage is
demonstrated under another mechanism or combination of mechanisms as specified in rule
1200-1—15—.08(6) through rule 1200—1—15—.08(12).
(HI) Whenever requested by the Commissioner, the ["Insurer" or "Group"] agrees to furnish to the
Commissioner a signed duplicate original of the policy and all endorsements.
(IV) Cancellation or any other termination of the insurance by the ["Insurer" or "Group"] except
for non-payment of premium 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 received
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 ten (10)
days after a copy of such written notice is received by the insured.
[Insert for claims-made policies:
(V) The insurance covers claims otherwise covered by the policy that are reported to the ["Insurer"
or "Group"] within six (6) months of the effective date of cancellation or non-renewal of the
policy except where the new or renewed policy has the same retroactive date or a retroactive date
eariler 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 ter-
mination date. Claims reported 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 rule
1200—1—15—.08(8)(b) 1. and that the ["Insurer" or "Group"] is ["licensed to transact the business
of insurance or eligible to provide insurance as an excess or surplus lines insurer in the State of
Tknnessee"].
[Signature of authorized representative of Insurer or Risk Retention Group] [Name of person signing]
[Title of person signing], Authorized Representative of [name of Insurer or Risk Retention Group]
[Address of Representative]
2. CERTIFICATE OF INSURANCE
Name: [name of each covered location] ; :
Address: [address of each covered location]
Policy Number
Au trust. 1991 (Revised)
84.245
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—I—15—.08, continued)
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:
(i) [Name of Insurer or Risk Retention Group], [the "Insurer" or "Group"], as identified above, hereby
certifies that it has issued liability insurance covering the following underground storage tank(s):
[List the number of tanks at each facility, the facility identification number(s), 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 rule 1200—1—15—.02(3), and the name
and address of the facility.]
For [insert: "taking corrective action" and/or "compensating third parties for bodily injury and pro-
perty damage" caused by accidental releases; in accordance with and subject to the limts of liability,
exclusions, conditions, and other terms of the policy; if coverage is different for different tanks or
locations, indicate the type of coverage applicable to each tank or location] arising from operating
the underground storage tank(s) identified 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 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 underground storage tank or location], 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].
(ii) The ["Insurer" or "Group"] further certifies the following with respect to the insurance described in
Paragraph 1:
(I) Bankruptcy or insolvency of the insured shall not relieve the ["Insurer" or "Group"] of its obliga-
tions under the policy to which this certificate applies.
August, 1991 (Revised)
~
84.246
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
@1) llie ["Insurer" or "Group"] is liable for the payment of amounts within any deductible applicable
to the policy to the provider of corrective action or a damaged third-party, with a right of reim-
bursement by the insured for any such payment made by the ["Insurer'' or "Group"]. This provi-
sion does not apply with respect to that amount of any deductible for which coverage is
demonstrated under another mechanism or combination of mechanisms as specified in rule
1200—1—15—.08(6) through rule 1200-1—15—.08(12).
(III) Whenever requested by the Commissioner, the ["Insurer" or "Group"] agrees to furnish to the
Commissioner a signed duplicate original of the policy and all endorsements.
(IV) Cancellation or any other termination of the insurance by the ("Insurer" or "Group"] except
for nonpayment of premium 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 received
by the insured. Cancellation for nonpayment of premium or misrepresentation by the insured
will be effective only upon written notice and only after expiration of a minimum of ten (10)
days after a copy of such written notice is received by the insured.
[Insert for claims-made policies:
(V) The insurance covers claims otherwise covered by the policy that are reported to the ["Insurer"
or "Group"] within six (6) months of the effective date of the cancellation or non-renewal of
the policy except where the new or renewed policy has the same retroactive 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 reported 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 rule
1200—1—15—.08(8)(b)2. and that the ["Insurer" or "Group"] is ["licensed to transact the business
of insurance, or eligible to provide insurance as an excess or surplus lines insurer in the state of
Tennessee"].
[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 the state of Tennessee.
(9) Surety Bond
(a) An owner or operator may satisfy the requirements of rule 1200—1—15—.08(4) by obtaining a surety
bond that conforms to the requirements of this paragraph. 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 TYeasury.
(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:
August, 1991 (Revised)
84.247
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
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 "corporation")
State of incorporation (if applicable): :
Surety(ies): (name(s) and business address(es))
Scope of Coverage: [List the number of tanks at each facility, the facility identification number(s), 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 identifica-
tion number provided in the notification submitted pursuant to rule 1200—1—15—.02(3), and the name and
address of the facility. List the coverage guaranteed by the bond: "taking corrective action" and/or "com-
pensating third parties for bodily injury and property damage" caused by accidental releases arising from
operating the underground storage tank"].
Penal sums of bond: Per occurrence $ .
Annual aggregate S -—
Surety's bond number:
Know All Persons by These Presents, that we, the Principal and Surety(ies), hereto are firmly bound to the
Department of Health and Environment, in the above penal sums for the payment of which we bind ourselves,
our heirs, executors, 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 actions 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 Tennessee Petroleum Underground Storage T^nk Act to provide
financial assurance for (insert: "taking corrective action" and/or "compensating third parties for bodily
injury and property damage" caused by accidental 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
underground storage tanks identified 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;
April, 1990 (Revised)
84.248
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully ("take correc-
tive action, in accordance with rule 1200—1—15—.06 and the Commissioner's instructions forj' and/or "com-
pensate injured third parties for bodily injury and property damage" caused by accidental releases arising
from operating the tank(s) identified above, or if the Principal shall provide alternate financial assurance,
as specified in rule 1200—1—15—.08, 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:
]. Any obligation of (insert owner or operator) under a workers' compensation, disability benefits, or
unemployment compensation law or other similar law;
2. Bodily injury to an employee of (insert owner or operator) arising from, and in the course of, employ-
ment by (insert owner or operator);
3. Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to
others of any aircraft, motor vehicle, or watercraft;
4. Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or oc-
cupied by (insert owner or operator) that is not the direct result of a release from a petroleum
underground storage tank; or
5. 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 rule 1200—1—15—.08(4).
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 Commissioner that the Principal has failed to ("take corrective action, in accor-
dance with rule 1200—1—15—.06 and the Commissioner's instructions" and/or "compensate injured third
parties") as guaranteed by this bond, the Surety(ies) shall either perform ("corrective action in accordance
with rule 1200—1—15—.06 and the Commissioner's instructions" and/or "third-party liability compensa-
tion") or place funds in an amount up to the annual aggregate penal sum into the standby trust fund as
directed by the Commissioner under rule 1200—1—15—.08(18).
Upon notification by the Commissioner 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 Commissioner 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 Commissioner under rule 1200—1—15—.08(18).
The Surety(ies) hereby waive(s) notification of amendments to applicable laws, statutes, rules, and regula-
tions and agrees that no such amendment shall in any way alleviate 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.
April, 1990 (Revised)
84.249
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—is—.08, continued)
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 surely bond on behalf of the Principal and Surety(ies) and that the wording of this surety
bond is identical to the wording specified in rule 1200—1—15—.08(9)(b) as such regulations were constituted
on the date this bond was executed.
PRINCIPAL
(Signature(s)) (Name(s)) (Title(s)) (Corporate seal)
CORPORATE SURETY(IES)
(Name and address) :
State of Incorporation:
Liability limit: S
(Signature(s)) (Name(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 is limited
to the per-occurrence and annual aggregate penal sums.
(d) The owner or operator who uses a surety bond to satisfy the requirements of rule 1200—1—15—.08(4)
must establish a standby trust fund when the surety bond is acquired. Under the terms of the bond,
all amounts paid by the surety under the bond will be deposited directly into the standby trust fund
in accordance with instructions from the Commissioner under rule 1200—1—15—.08(18). This stand-
by trust fund must meet the requirements specified in rule 1200—1—15—.08(13).
(10) Letter of Credit
(a) An owner or operator may satisfy the requirements of rule 1200—1—15—.08(4) by obtaining an ir-
revocable standby letter of credit that conforms to the requirements of this paragraph. The issuing
institution must be an entity that has the authority to issue letters of credit in the state of Tfcnnessee
and whose letter-of-credit operations are regulated and examined by a federal or state agency.
(b) The letter of credit must be worded as follows, except that instructions in brackets are to be replaced
with the relevant information and the brackets deleted:
April, 1990 (Revised)
84.250
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
IRREVOCABLE STANDBY LETTER OF CREDIT
(Name and address of issuing institution) (Name and address of Commissioner of Tennessee Depart-
ment of Health and Environment)
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 (address) up to the
aggregate amount of (in words) U.S. dollars (Sinsert dollar amount), available upon presentation by
the Commissioner of
1. your sight draft, bearing reference to this letter of credit, No. , and
2. your signed statement reading as follows: "I certify that the amount of the draft is payable pur-
suant to regulations issued under authority of Tennessee Petroleum Underground Storage l&nlc
Act!'
This letter of credit may be drawn on to cover (insert: "talcing corrective action" and/or "compen-
sating third parties for bodily injury and property damage" caused by accidental 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) S(insert dollar amount) annual aggregate:
(List the number of tanks at each facility, the name(s) and address(es) of the facility(ies), and the facility
identification number(s) 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 rule 1200—1—15—.02(3) and the name and
address of the facility.)
The letter of credit may not be drawn on to cover any of the following:
1. Any obligation of (insert owner or operator) under a workers' compensation, disability benefits,
or unemployment compensation law or other similar law;
2. Bodily injury to an employee of (insert owner or operator) arising from, and in the course of,
employment by (insert owner or operator);
3. Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment
to others of any aircraft, motor vehicle, or watercraft;
4. Property damage to any property owned, rented, loaned to, in the care, custody, or control of,
or occupied by (insert owner or operator) that is not the direct result of a release from a petroleum
underground storage tank; or
5. 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 agree-
ment entered into to meet the requirements of rule 1200—1—15—.08(4).
April, 1990 (Revised)
84.251
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—I—15
(Rule 1200—1—15—.08, continued)
This letter of credit is effective as of (date) and shall expire on (date), but such expiration date shall
be automatically extended 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 current expiration date,
we notify (owner or operator) by certified mail that we have decided not to extend this letter of credit
beyond the current expiration date. In the event that (owner or operator) 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 in rule
1200—1—IS—.08(10)b as such regulations were constituted on the date shown immediately below.
(Signature(s) and title(s) of official(s) of issuing institution)
(Date)
This credit is subject to (insert "the most recent edition of the Uniform Customs and Practice for
Documentary Credits, published by the International Chamber of Commerce," or "the Uniform Com-
mercial Code").
(c) An owner or operator who uses a letter of credit to satisfy the requirements of rule 1200—1—15—.08(4)
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 Commissioner will be deposited by the
issuing institution directly into the standby trust fund in accordance with instructions from the Com-
missioner under rule 1200—I—15—.08(18). This standby trust fund-must meet the requirements specified
in rule 1200—1—15—.08(13).
(d) The letter of credit must be irrevocable with a term specified by the issuing institution. The letter of
credit must provide that credit be automatically 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 decision 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.
(11) Petroleum Underground Storage "link Fund
(a) An owner or operator may use the fund to assist with the financial responsibility requirements of rule
1200—1—15—.08(4) for underground storage tanks located in the State of Tennessee after the owner
or operator meets fund eligibility requirements described in rule 1200—1—15—.09(4) and (5). The fund
will be implemented as described, in rule 1200—1—15—.09. When eligible, monies will be available
from the fund to cover costs up to the limits specified in 7ICL/4. §65—53—III subject to rule
1200—1—15— .08(20)(d).
(b) An owner or operator using the fund to meet part of the financial responsibility requirements of Rule
1200—1—15—.08(4) must execute a Fund Applicability Statement worded as follows:
April, 1990 (Revised)
84.252
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
FUND APPLICABILITY STATEMENT
This statement certifies that the Tennessee Underground Storage "Rink Fund will be used to cover costs
from the fund entry level amounts to limits specified in rule 1200—1—15—.08(4) and T.CLA. §68—S3—111
subject to rule 1200—1—15—.08(20)(d).
The fund shall be responsible for cleanup costs above the entry level to the fund in an amount not
to exceed one million dollars ($1,000,000) per site per occurrence: The fund shall be responsible for
court awards involving third party claims above the entry level into the fund in an amount not to ex-
ceed one million dollars ($1,000,000) per site per occurrence.
{Insert name of owner or operator] guarantees that fund eligibility requirements described in rule
1200—1—15—.09 have been met for the below listed tanks.
[List the number of tanks at each facility, the name(s) and address(es) of the facility(ies), and the facility
identification number(s) where the tanks are located. For each tank covered by this instrument, list
the tank identification number provided in the notification submitted pursuant to rule
1200—1—15— .02(3), the name and address of the facility, and the type of instrument which assures
financial responsibility to the entry level of the fund.]
The fund is being used for financial assurance for [insert "taking corrective action" and/or "compen-
sating third parties for bodily injury and property damage caused by"] accidental releases arising from
operating the underground storage tank(s) identified above. Fund dispersement and implementation
is described in rule 1200—1—15—.09.
I certify that the wording of this instrument is identical to the wording in rule 1200—1—15—.08(ll)(b).
[Signature of authorized representative]
[Type Name]
[Title]
[Date of Execution]
(12) Thist Fund
(a) An owner or operator may satisfy the requirements of rule 1200—1—15—.08(4) by establishing a trust
fund that conforms to the requirements of this paragraph. 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 agen-
cy or an agency of the state of Tennessee. The trust fund must be established in the state of Tennessee.
(b) The wording of the trust agreement must be identical to the wording specified in rule
1200—1—15—.08(13)(b)l., and must be accompanied by a formal certification of acknowledgment as
specified in rule 1200—1— 15—.08(13)(b)2. and a statement of locations as specified in rule
1200—1—15—.08(12)(g).
(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 remaining required coverage.
April, 1990 (Revised)
84.253
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(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 Commissioner for release of the excess.:
(e) If other financial assurance as specified in this rule is substituted for all or part of the trust fund,
the owner or operator may submit a written request to the Commissioner 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 subparagraphs (d) or (e) of this rule, the Commissioner will instruct the trustee to release to the
owner or operator such funds as the Commissioner specifies in writing.
(g) An owner or operator satisfying the requirements of rule 1200—1—15—.08(4) through the use of a
trust fund as set forth in this paragraph shall execute the following statement of locations as worded:
STATEMENT OF LOCATIONS
This statement is in support of the use of the trust fund to demonstrate financial responsibility for
[insert: "taking corrective action" and/or "compensating third parties for bodily injury and property
damage"] caused by accidental releases in the amount of at least [insert: dollar amount] per occur-
rence and [insert: dollar amount] annual aggregate arising from operating (an) underground storage
tank(s).
Underground storage tanks at the following facilities are assured by the trust fund by this [insert: "owner
or operator^]: [List for each facility: the name and address of the facility where tanks assured by this
financial test are located, the number of tanks at each facility, and the facility identification number.
If separate mechanisms or combinations of mechanisms are being used to assure any of the tanks at
the facHity(ies), list each tank(s) assured by this trust fund by the tank identification number provided
in the notification submitted pursuant to rule 1200—1—15—.02(3) and the name and address of the
facility(ies).
(Signature of authorized representative]
ITitle]
[Date]
(13) Standby Thist Fund
(a) An owner or operator using any one of the mechanisms authorized by rule 1200—1—15—.08(7), rule
1200—1—15—.08(9), or rule 1200—1—15—.08(10) must establish 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 federal agency or an
agency of the state of Tennessee. The trust fund must be established in the state of Tfennessee.
(b) 1. The standby 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
Thist agreement, the "Agreement" entered into as of (date) by and between (name of the owner
or operator), a (name of state) (insert "corporation!' "partnership" "association" or "proprietor-
ship"), the "Grantorand (name of corporate trustee), (insert "Incorporated in the state of
" or "a national bank"), the "'IYustee!,
April, 1990 (Revised)
84.254
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(Whereas, the Tennessee Department of Health and Environment, "TDHE" an agency of the state
of Tknnessee, has established certain regulations applicable to the Grantor, requiring that an owner
or operator of an underground storage tank shall provide assurance that funds will be available when
needed for corrective action and third-party compensation for bodily injury and property damage caused
by accidental releases arising from the operation of the underground storage tank (This paragraph
is only applicable to the standby trust agreement.));
(Whereas, the Grantor has elected to establish (insert either "a guarantee;' "surety bond" or "letter
of credit") to provide all or part of such financial assurance for the underground storage tanks iden-
tified herein and is required to establish a standby trust fund able to accept payments from the instru-
ment (This paragraph is only applicable to the standby trust agreement.));
Whereas, the Grantor, acting through its duly authorized officers, has selected the Thistee to be the
trustee under this agreement, and the Thistee is willing to act as trustee;
Now, therefore, the Grantor and the TYustee agree as follows:
Section 1. Definition
As used in this Agreement:
(a) The term "Commissioner" means the Commissioner of Health and Environment, his authorized
representatives, or in the event of his absence or a vacancy in the Commissioner's office, the Deputy
Commissioner.
(b) The term "Department" means Tennessee Department of Health and Environment.
(c) The term "Fund" means trust fund.
(d) The term "Grantor" means the owner or operator who enters into this Agreement and any successors
or assigns of the Grantor.
(e) The term "Trustee" means the "IYustee who enters into this Agreement and any successor Thistee.
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 established to receive payments (This paragraph is only ap-
plicable to the standby trust agreement.)).
Section 3. Establishment of Fund
The Grantor and the IYustee hereby establish a trust fund, the "Fund" for the benefit of the Department. The
Grantor and the IYustee intend that no third party have access to the Fund except as herein provided. (The Fund
is established initially as a standby to receive payments and shall not consist of any property.) Payments made
by the provider of financial assurance pursuant to the Commissioner's instruction are transferred to the TYustee
and are referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions
made by the TYustee pursuant to this Agreement. The Fund shall be held by the TYustee, IN TRUST, as hereinafter
provided. The TYustee shall not be responsible nor shall it undertake any responsibility for the amount or ade-
quacy of, nor any duty to collect from the Grantor as provider of financial assurance, any payments necessary
to discharge any liability of the Grantor established by the Department.
April, 1990 (Revised)
84.255
-------
UNDERGROUND STORAGE TANK PRO< AM CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
Section 4. Payment for ("Corrective Action" and/or "Third Party Liability Claims")
The "IYustee shall make payments from the Fund as the Commissioner shall direct, in writing, to provide for the
payment of the costs of (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 "ac-
cidental releases") arising from operating the tanks covered by the financial 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 operator) under a workers' compensation, disability benefits, or
unemployment compensation law or other similar law;
(b) Bodily injury to an employee of (insert owner or operator) arising from, and in the course of, employ-
ment by (insert owner or operator);
(c) Bodily injury or property damage arising 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, custody, or control of, or oc-
cupied by (insert owner or operator) that is not the direct result of a release from a petroleum
underground storage tank; or
(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 rule 1200—1—15—.08(4).
The Thistee shall reimburse the Grantor, or other persons as specified by tjhe Commissioner, from the Fund for
corrective action expenditures and/or third-party liability claims in such amounts as the Commissioner shall direct
in writing. In addition, the Trustee shall refund to the Grantor such amounts as the Commissioner specifies in
writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund
Payments made to the Trustee for the Fund shall consist of cash and securities acceptable to the "IYustee.
Section 6. Thistee 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 communicate in writing to the Thistee from time to time, subject, however,
to the provisions of this Section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Thistee
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 familiar 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 defined 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 obliga-
tions of the federal or a state government;
April, 1990 (Revised) 84.256
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(ii) The TVustee is authorized to invest the Fund in time or demand deposits of the TVustee,
to the extent insured by an agency of the federal or state government; and
(iii) The Thistee is authorized to hold cash awaiting investment or distribution uninvested for
a reasonable time and without 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 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 in-
vestment advice is rendered or the shares of which are sold by the "Trustee. The Thistee may vote such
shares in its discretion.
Section 8. Express Powers of Thistee
Without in any way limiting the powers and discretions conferred upon the TVustee by the other provisions of
this Agreement or by law, the "Ihistee 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 TVustee 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 instruments 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 certificates representing such securities
with certificates of the same issue held by the TVustee 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 person, or to deposit or arrange for the deposit of
any securities issued by the US. Government, or any agency or instrumentality thereof, with a Federal
Reserve bank, but the books and records of the TVustee shall at all times show that all such securities
are part of the Fund;
(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued
by the TVustee; in its separate corporate capacity, or in any other banking institution affiliated with
the TVustee, to the extent insured by an agency of the federal or state government; and
(e) Tb compromise or otherwise adjust all claims in favor of or against the Fund.
April, 1990 (Revised)
84.257
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
Section 9. Thxes and Expenses
All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commis-
sions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Thistee in connection
with the administration of this TVust, including fees for legal services rendered to the Trustee, the compensation
of the Thistee 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 consult with counsel, who may be counsel to the Grantor, with respect to
any questions arising as to the construction of this Agreement or any action to be taken hereunder. The Thistee
shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.
Section 11. Thistee Compensation
The TVustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time
to time with the Grantor.
Section 12. Successor Thistee
The Thistee may resign or the Grantor may replace the Thistee, but such resignation or replacement shall not
be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The
successor trustee shall have the same powers and duties as those conferred upon the Thistee hereunder. Upon
the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the suc-
cessor 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 Thistee may apply to a court of competent jurisdiction
for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on
which it assumes adminislration of the trust in writing sent to the Grantor and the present Thistee by certified
mail 10 days before such change becomes effective. Any expenses incurred by the Thistee 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 Thistei
All orders, requests, and instructions by the Grantor to the Thistee shall be in writing, 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, requests, and instructions. All orders, requests, and instructions by the Commissioner to the Trustee shall
be in writing, signed by the Commissioner, and the Trustee shall act and shall be fully protected in acting in accor-
dance with such orders, requests, and instructions. 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 Commissioner hereunder has occurred. The Thistee shall have no
duty to act in the absence of such orders, requests, and instructions from the Grantor and/or the Commissioner,
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 Thistee and the Commissioner if the Grantor ceases to exist.
April, 1990 (Revised)
84.258
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1—15
(Rule 1200—1—15—.08, continued)
Section 15. Irrevocability and termination
Subject to the right of the parties to amend this Agreement as provided in Section 14, this Thist shall be irrevocable
and shall continue until terminated at the written direction of the Grantor and the "IYustee, or by the Trustee
and the Commissioner, if the Grantor ceases to exist. Upon termination of the TYust, all remaining trust property,
less final trust administration expenses, shall be delivered to the Grantor.
Section 16. Immunity and Indemnification
The "IYustee shall not incur personal liability of any nature in connection with any act or omission, made in good
faith, in the administration of this TYust, or in carrying out any directions by the Grantor or the Commissioner
issued in accordance with this Agreement. The TYustee shall be indemnified and saved harmless by the Grantor,
from and against any personal liability to which the TVustee may be subjected by reason of any act or conduct
in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to
provide such defense.
Section 17. Choice of Law
This Agreement shall be administered, construed, and enforced according to the laws of the state of Tennessee,
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 respective 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 rule
1200—1—15— .08(13)(b)l. 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)
Attest:
(Signature of Witness)
(Name of Witness)
(Title)
(Seal)
2. The standby trust agreement must be accompanied by a formal certification of acknowledgment
similar to the following.
State of
County of
April, 1990 (Revised)
84.259
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
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 (corpora-
tion), the corporation described in and which executed the above instrument; that she/he knows
the seal of said corporation; that the seal affixed to such instrument 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 Commissioner will instruct the trustee to refund the balance of the standby trust fund to the pro-
vider of financial assurance if the Commissioner 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 establish one trust fund as the depository mechanism for all funds assured
in compliance with this rule.
(14) Substitution of Financial Assurance Mechanisms by Owner or Operator
(a) An owner or operator may substitute any alternate financial assurance mechanisms as specified in
this rule, provided that at all times he maintains an effective financial assurance mechanism or com-
bination of mechanisms that satisfies the requirements of rule 1200—1—15—.08(4).
(b) After obtaining alternate financial assurance as specified in this rule, an owner or operator may cancel
a financial assurance mechanism by providing notice to the provider of financial assurance.
(15) 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 termination 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 receives the notice of termination, as evidenced
by the return receipt.
2. Termination of insurance or risk retention group coverage, except for nonpayment or misrepresen-
tation 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.
Termination for nonpayment of premium or misrepresentation by the insured may not occur un-
til a minimum of ten (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 responsibility cancels or fails to renew for reasons other than incapacity of
the provider as specified in rule 1200—1—15—.08(16), the owner or operator must obtain alternate
coverage as specified in this paragraph within 60 days after receipt of the notice of termination. If
the owner or operator fails to obtain alternate coverage within 60 days after receipt of the notice of
termination, the owner or operator must notify the Commissioner of such failure and submit:
1. . The name and address of the provider of financial assurance;
2. The effective date of termination; and
3. The evidence of the financial assurance mechanism subject to the termination maintained in ac-
cordance with rule 1200—1—15— .08(17).
August, 1991 (Revised)
84.260
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(16) Reporting by Owner or Operator
(a) An owner or operator must submit the appropriate forms listed in rule 1200—1—15—.08(17)(b) documen-
ting current evidence of financial responsibility to the Commissioner:
1. Within 30 days after the owner or operator identifies a release from an underground storage tank
required to be reported under rule 1200—1—15—.05(4) or rule 1200—1—15—.06(2);
2. If the owner or operator fails to obtain alternate coverage as required by this rule, 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 provider of financial assurance as a debtor,
(ii) Suspension or revocation of the authority of a provider of financial assurance 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 rule 1200—1—15—,08(6)(g) and rule 1200—1—15—.08(15).
(b) An owner or operator must certify compliance with the financial responsibility requirements of this
Chapter as specified in the new tank notification form when notifying the Department of the installa-
tion of a new underground storage tank under rule 1200—1—15—.02(3).
(c) The Commissioner may require an owner or operator to submit evidence of financial assurance as
described in rule 1200—1—15— .08(17)(b) or other information relevant to compliance with this rule
at any time.
(17) Recordkeeping
(a) Owners or operators must maintain evidence of all financial assurance mechanisms used to demonstrate
financial responsibility under this rule for an underground storage tank until released from the re-
quirements of this rule under rule 1200—1—15—.08(19). An owner or operator must maintain such
evidence at the underground storage lank site or the owner's or operator's place of business. Records
maintained off-site must be made available upon request of the Department.
(b) An owner or operator must maintain the following types of evidence of financial responsibility:
1. An owner or operator using an assurance mechanism specified in rule 1200—1—15—.08(6) through
rule 1200—1—15—.08(12) must maintain a copy of the instrument^) worded as specified.
2. An owner or operator using a financial test or guarantee must maintain a copy of the chief financial
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 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.
April, 1990 (Revised)
84.261
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
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 endorse-
ment or certificate of insurance and any amendments to the agreements.
5. An owner or operator covered by a state fund must maintain on file a copy of evidence of coverage
required by the state under rule 1200—1—15—,08(ll)(b) and a copy of the current petroleum
underground storage tank certificate pursuant to rule 1200—1—15—.10.
6. An owner or operator using an assurance mechanism specified in rule 1200—1—15—.08(6) through
rule 1200—1—15—.08(12) must maintain and submit to the Department with the annual tank
fee 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 requirements of rule
1200—1—15—.08.
The financial assurance mechanism(s) used to demonstrate financial responsibility under rule
1200—1—15—.08 is(are) as follows:
(For each mechanism, list the type of mechanism, name of issuer, mechanism number (if ap-
plicable), 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 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)
The owner or operator must update this certification whenever the financial assurance
mechanism(s) used to demonstrate financial responsibility change(s). A copy of this updated cer-
tification is to be submitted to the Department whenever the financial assurance mechanism(s)
used to demonstrate financial responsibility change(s).
(18) Drawing on Financial Assurance Mechanisms
(a) The Commisioner shall require the guarantor, surety, or institution issuing a letter of credit to place
the amount of funds stipulated by the Commissioner, up to the limit of funds provided by the finan-
cial 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 ap-
plicable, other financial assurance mechanism; and
(ii) The Commissioner determines or suspects that a release from an underground storage tank
covered by the mechanism has occurred and so notifies the owner or operator or the owner
or operator has notified the Commissioner pursuant to rule 1200—1—15—.05 or Rule
1200—1—15—.06 of a release from an underground storage tank covered by the mechanism;
or
April, 1990 (Revised)
84.262
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
2. The conditions of subparagraph (b)l. or (b)2. are satisfied.
(b) The Commissioner may draw on a standby trust fund when:
1. The Commissioner makes a final determination that a release has occurred and immediate or
long-term corrective action for the release is needed, and the owner or operator, after appropriate
notice and opportunity to comply, has not conducted corrective action as required under Rule'
1200—1—15—.06 or
2: The Commissioner has received either:
(i) Certification from the owner or operator and the third-party liability claimants) and from
attorneys representing 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 operator)
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 arising from operating
(owner's or operator's) underground storage tank should be paid in the amount of
S( • ).
(Signatures) Signature(s)
Owner or Operators Claimant(s)
Auorney(s) for Altorney(s)
Owner or Operator for Claimant(s)
(Notary) Date (Notary) Date
or
(ii) An original or certified copy of a final judgment (enforceable in Tennessee) establishing
a judgment against the owner or operator for bodily injury or property damage caused
by an accidental release from an underground storage tank covered by financial assurance
under this rule.
(c) If the Commissioner determines that the amount of corrective action costs and third-party liability
claims eligible for payment under subparagraph (b) 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 correc-
tive action costs necessary to protect human health and the environment. The Commissioner shall
pay third-party liability claims in the order in which the Commissioner receives certifications of valid
claims under subpart (b)2.(i) and valid final judgments under subpart (b)2.(ii).
April, 1990 (Revised)
84.263
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.08, continued)
(19) Release from the Requirements
An owner or operator is no longer required to maintain financial responsibility under this rule for an
underground storage tank after the tank has been properly closed or, if corrective action is required, after
corrective action has been completed and the tank has been properly closed* as required by rule
1200—1—15—.07.
(20) Bankruptcy or Other Incapacity of Owner or Operator or Provider of Financial Assurance
(a) Within 10 days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankrupt-
cy), U.S. Code, naming an owner or operator as debtor, the owner or operator must notify the Com-
missioner by certified mail of such commencement and submit the appropriate forms listed in rule
1200—1—15—.08(17) documenting current financial responsibility.
(b) Within 10 days after commencement 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 required under the terms of the
guarantee specified in rule 1200—1—15—.08(7).
(c) An owner or operator who obtains financial assurance by a mechanism other than the financial test
of self-insurance will be deemed to be without the required financial assurance in the event of a bankrupt-
cy or incapacity of its provider of financial assurance, or a suspension or revocation of the authority
of the provider of financial assurance 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 financial assurance as specified in this rule 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 notifica-
tion, he must notify the Commissioner.
(d) Within 30 days after receipt of notification that the Tennessee Petroleum Underground Storage link
Fund has become incapable of paying for assured corrective action or third-party compensation costs,
the owner or operator must obtain alternate financial assurance.
(21) 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 Commissioner with funds
drawn from a guarantee, letter of credit, or surety bond, and the amount in the standby trust is reduc-
ed below the full amount of coverage required, the owner or operator shall by the anniversary 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 assurance mechanism for the amount by which funds in the standby
trust have been reduced.
(b) For purposes of this paragraph, the full amount of coverage required is the amount of coverage to
be provided by rule 1200—1—15—.08(4). 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.
Authority: T.CA. §§68—53—101 ef seq„ 68—53—107, 68—53—113 and 4—5—201 et seq. Administrative History. Original
rule filed March 1, 1990; effective April 15, 1990. Amendment filed July 3, 1991; effective August 17, 1991.
August, 1991 (Revised)
84.264
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
1200—1—15—.09 ADMINISTRATIVE GUIDELINES AND PROCEDURES FOR THE TENNESSEE
PETROLEUM UNDERGROUND STORAGE TANK FUND.
(1) Purpose. This chapter is promulgated to establish administrative guidelines and procedures to determine
the manner in which disbursements are made from the Ifcnnessee Petroleum Underground Storage link
Fund and to implement the purposes and objectives of the Ibnnessee Petroleum Underground Storage link
Act of 1988.
(2) Definitions: The following words and terms, when used in this rule, shall have the following meanings unless
the context clearly indicates otherwise.
(a) "Board" means the petroleum underground storage tank board established in 7TCA §55—S3—112.
(b) "Commissioner" means the Commissioner of Health and Environment, his authorized representatives,
or in the event of his absence or a vacancy in the Commissioner's office, the Deputy Commissioner.
(c) "Connected piping" means all underground piping including valves, elbows, joints, flanges, and flexi-
ble connectors attached to a tank system through which petroleum flows. For the purpose of deter-
mining how much piping is connected to any individual UST system, the piping that joins two UST
systems should be allocated equally between them.
(d) "Consumption" with respect to heating oil means consumed on the premises where stored.
(e) "Corrective Action" means any activity, including but not limited to evaluation, planning, design,
engineering, construction, and ancillary service, which is carried out in response to any discharge, release,
or threatened release of petroleum.
(f) "Corrective Action Contractor" means a person who is carrying out any corrective action, including
a person retained or hired by such person to provide services relating to a corrective action.
(g) "De Minimis" means very low concentrations of petroleum.
(h) "Department" means the Tennessee Department of Health and Environment.
(i) "Director" means the Director of the Division.
(j) "Division" means the Division designated by the Commissioner of the Department of Health and
Environment as the agency to implement the Underground Storage Tfcnk Program in Tennessee.
(k) "Eligible owner" means an owner or operator that is in "Substantial Compliance" as defined in sub-
paragraph (hh) of this paragraph.
(1) "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.
(m) "Flow-through process tank" means a tank whose principal use is not for storage but is used in the
manufacture of a product or in a treatment process. A flow through process tank 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.
April, 1990 (Revised)
84.265
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1—15
(Rule 1200—1—15—.09, continued)
(n) "Free product" refers to a petroleum that is present as a nonaqueous phase liquid (e.g., liquid not
dissolved in water).
(o) "Fund" means the petroleum underground storage tank fund established under T.CLA. §68—53—110
unless the context clearly indicates otherwise.
(p) "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.
(q) "Ground water" means water below the land surface in a zone of saturation.
(r) "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.
(s) "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.
(t) "Liquid trap" means sumps, well cellars, and other traps used in association with oil and gas produc-
tion, gathering, and extraction operations (including gas production plants), for the purpose of collec-
ting 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.
(u) "Noncommercial purposes" with respect to motor fuel means not for resale.
(v) "On the premises where stored" with respect to heating oil means UST systems located on the same
properly where the stored heating oil is used.
(w) "Operator" means any person in control of, or having responsibility for, the daily operation of the
petroleum underground storage tank.
(x) "Owner" means:
1. For petroleum storage tanks in use or brought into use on or after November 8, 1984, any person
who owns a petroleum underground storage tank used for the storage, use, or dispensing of
petroleum products.
2. For petroleum underground storage tanks used prior to November 8, 1984, but no longer in use
after that date, the person who last owned the petroleum underground storage tank used for storage,
use, or dispensing of petroleum immediately before discontinuation of its use.
(y) "Person" means any and all persons, including individuals, firms, partnerships, associations, public
or private institutions, state and federal agencies, municipalities or political subdivisions, or officers
thereof, departments, agencies or instrumentalities, or public or private corporations or officers thereof,
organized or existing under the laws of this or any other state or country.
(z) "Petroleum" means crude oil or any fraction thereof that is liquid at standard temperature and pressure
(60 degrees Fahrenheit and 14.7 pounds per square inch absolute). The term petroleum includes but
is not limited to petroleum and petroleum based substances comprised of a complex blend of hydrocar-
bons 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.
April, 1990 (Revised)
84.266
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1-15
(Rule 1200—1—15—.09, continued)
(aa) "Pipe" or "Piping" means a hollow cylinder or tubular conduit that is constructed of non-earthen
materials.
(bb) "Pipeline facilities (including gathering lines)" are new and existing pipe rights-of-way and any associated
equipment, facilities, or buildings.
(cc) "Reasonable cost" means that monetary amount or range, as determined by the Department, to be
commensurate with a corrective action. The Department's determination is based on an evaluation
of typical costs expected for the particular corrective action under review considering the scope and
complexity of the activities involved.
(dd) "Release" means any spilling, overfilling, leaking, emitting, discharging, escaping, leaching or disposing
of a petroleum substance from an UST or its associated piping into groundwater, surface water or
subsurface soils.
(ee) "Residential tank" is a tank located on property used primarily for dwelling purposes.
(ff) "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 recep-
tacle 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.
(gg) "Storm-water or wastewater collection system" means piping, pumps, conduits, and any other equip-
ment necessary to collect and transport the flow of surface water run-off resulting from precipita-
tion, 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 treat-
ment except where incidental to conveyance.
(hh) "Substantial Compliance" shall mean that an owner or operator of an underground storage tank
has registered that tank with the Division, has timely paid all annual tank fees, and has complied
with the requirements of rule 1200—1—15 — 02(1) through rule 1200—1—15—07(5).
(ii) "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.
(jj) "Tfcnk" is a stationary device designed to contain an accumulation of petroleum and constructed of
non-earthen materials (e.g., wood, concrete, steel, fiberglass) that provide structural support.
(kk) "Third Party Claim" means any civil action brought or asserted by any person other than the Depart-
ment or EPA against any owner or operator of any underground storage tank for damages to person
or property which damages are the direct result of contamination by petroleum released from a petroleum
underground storage tank.
(11) "Underground area" means an underground room, such as a basement, cellar, shaft or vault, pro-
viding enough space for physical inspection of the exterior of the tanks situated on or above the
surface of the floor.
(mm) "Underground release" means any below ground release.
April, 1990 (Revised)
84.267
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1-15
(Rule 1200—1—15—.09, continued)
(nn) "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 petroleum, 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 non-
commercial purposes;
2. Tank used for storing heating oil for consumption 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 Subparts (i) or (ii) above if it is an in-
trastate pipeline;
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; and
10. Piping connected to any of the above exclusions.
(oo) "UST System" or "Tank system" means an underground storage tank, connected underground pip-
ing, underground ancillary equipment, and containment system, if any.
(pp) "Wastewater treatment tank" means a tank that is designed to receive and treat an influent wastewater
through physical, chemical, or biological methods.
(qq) "Waters" means any and all water, public or private, on or beneath the surface of the ground, which
are contained within, flow through, or border upon Tennessee or any portion thereof except those
bodies of water confined to and retained within the limits of private property in single ownership
which do not combine or effect a junction with natural surface or underground waters. [Acts 1971,
ch. 164, §3; 1977, ch. 366, §1; T.CA. §70—326; Acts 1984, ch. 804, §1.]
(3) Applicability. Requirements of this rule apply to all owners and operators of an underground storage tank
system as defined in rule 1200—1—15—.09(2) except as otherwise provided for in rule 1200—1—15—.01(l)(b),
rule J200—1—15—.10(3)(e), and rule 1200—1—15—.11 (3)(d).
April, 1990 (Revised)
/'
84.268
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.09, continued)
(4) Fund Eligibility Requirements
(a) Every owner of an UST is required to register that tank with the Division. The owner and/or operator
is required to annually pay the required fee for each tank described in rule 1200—1—15—.10(2) and
rule 1200—1—15—.10(6)(c). Owners and/or operators satisfying the requirements of this paragraph
will have established Rind eligibility. Before the owner and/or operator will receive Fund benefit, the
applicable entry level amount to the Fund must be expended as approved costs by the owner and/or
operator and/or financial assurance provider. The applicable entry level is the entry level in effect the
date the release is reported to the Department.
If the date of release was prior to July 1, 1988, the owner and/or operators are not eligible to receive
Fund benefit. If the date of release was between July 1, 1988 and June 30, 1989, the per occurence
entry level for corrective action is seventy-five thousand dollars (S75.000) and the per occurrence entry
level for third party compensation is one hundred fifty thousand dollars ($150,000). If the date of release
was between July 1, 1969 and April 30, 1990 the per occurrence entry level for corrective action is
fifty thousand dollars ($50,000) and the per occurrence entry level for third party compensation is
one hundred fifty thousand dollars ($150,000).
(b) Every owner or operator of an UST is required to maintain Fund eligibility. Requirements to maintain
eligibility are as follows:
1. The owner or operator shall remain in substantial compliance for each UST. If a UST does not
remain in substantial compliance, the owner or operator is not eligible for Fund benefits for the
site containing the non-complying UST.
2. Annual payment of Underground Storage "link Fees are required for each UST until such time
as permanent closure or change-in- service requirements of rule 1200—1—15—.07(2) through rule
1200—1—15—.07(5) are satisfied.
3. The owner or operator shall maintain the records as required in Chapter 1200—1—15 and submit
or make them available to the Division upon request or as directed in regulation.
4. All records maintained as required in subparagraph (b)3. above shall be retained by the owner
and/or operator until one of the following is accomplished:
(i) Closure requirements of rule 1200—1—15—.07(2) through 1200—1—15—.07(5) are satisfied;
(ii) Ownership of an UST, and all records pertaining thereto, are transferred to a new owner; or
(iii) Owner or operator is instructed otherwise by the Division.
(5) Loss and Restoration of Fund Eligibility
(a) If at the time of discovery of a release, the Division determines that an owner or operator has failed
to establish Fund eligibility in accordance with subparagraph (4)(a), corrective action costs and/or third
party damages associated with that release are not eligible for coverage by the Fund.
(b) If at any lime the Division determines that an owner or operator has failed to maintain Fund eligibili-
ty, the Division 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 to provide evidence of compliance with
all Fund eligibility requirements or such other time period as the Division may allow. If, after this
time period, the owner or operator fails to resolve the non-compliance^ the Director shall issue a Notice
of Fund Ineligibility and enforcement actions which may include penalty assessment may be initiated.
The owner or operator shall have 60 days from receipt of Notice of Fund Ineligibility to place in force
alternate financial assurance required in rule 1200—1—15—.08(4) and rule 1200—1—15—.08(15).
August, 1991 (Revised)
84.269
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.09, continued)
(c) An owner or operator that has been issued a Notice of Fund Ineligibility must resolve the non-compliance
to the satisfaction of the Division for Fund eligibility to be restored. Within thirty (30) days of resolu-
tion of the non-compliance, the Division will notify the owner or operator of the date that Fund eligibility
was restored. It is the responsibility of the owner or operator to provide evidence of compliance to
the Division. The Fund will not cover either investigative or corrective action costs or third party liability
claims associated with a release which occurred during the time of Fund ineligibility.
(6) Annual Fee Assessment
(a) As part of the eligibility requirements to participate in the liability limitations and reimbursement benefits
of the Fund, an UST owner or operator shall pay an annual "Rink Fee set by the Board.
(b) Each year UST owners or operators will be notified by the Division of the amount of the required
link Fee.
(7) Authorized Disbursements From the Fund
(a) Whenever in the Commissioner's determination, an eligible owner or operator has a release of petroleum
from an underground storage tank and the owner or operator has been found to be eligible for Fund
coverage, the Department shall, subject to the provisions of this rule, disburse monies available in the
Fund to provide for:
1. Emergency response activities, investigation, and assessment of sites contaminated by a release
of petroleum in accordance with the requirements of rule 1200—1—15—.05 through
1200-1-15—.06.
2. The rehabilitation of sites contaminated by a release of petroleum, 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 public health, safety and welfare and
minimize environmental damage, in accordance with corrective action requirements of rule
1200—1-15— .06.
3. The interim replacement and permanent restoration of potable water supplies;
(b) Monies held in the Fund may be disbursed for making payments to third parlies who bring suit relative
to a UST release against the owner or operator of an UST who is eligible for Fund coverage when
such third party obtains a final judgment in that action enforceable in Tennessee.
(c) Costs incurred by the Division in the administration of the provisions of this rule or authorized under
T.C.A. §68—53—101 et seq. shall be charged to the Fund.
(d) The fund shall be available to the Board and the Commissioner for expenditures for the purposes of
providing for the investigation, identification, and for the reasonable and safe cleanup, including
monitoring and maintenance of petroleum sites within the state as provided in 3TCL4. §55—S3—101
et seq,
(e) The commissioner may enter into contracts and use the fund for those purposes directly associated
with identification, investigation, containment and cleanup, including monitoring and maintenance
prescribed above including:
1. Hiring consultants and personnel;
2. Purchase, lease or rental of necessary equipment; and
3. Other necessary expenses.
April, 1990 (Revised)
/
84.270
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.09, continued)
(8) Scope of Fund Coverage
(a) The Fund will provide to eligible UST owners or operators coverage for the cost of corrective actions
and for compensation of third parties for bodily injury and property damage resulting from acciden-
tal releases arising from the operation of an UST which stores petroleum.
(b) Owner or operators of USTi who are eligible for Fund coverage must meet the per site per occurrence
financial responsibility requirements specified in parts 1., 2., or 3. and illustrated in Ikble 3.
1. If the date of release was betweea July 1, 1988 and June 30, 1989, the financial responsibility
requirements for eligible UST owners or operators for taking corrective action will be seventy-
five thousand dollars ($*75,000) and compensation of third parties will be one hundred fifty thou-
sand dollars ($150,000).
2. If the date of release was between July 1, 1989 and April 30, 1990, the financial responsibility
requirements for eligible UST owners or operators for taking corrective actions will be fifty thou-
sand dollars ($50,000) and compensation of third parties will be one hundred fifty thousand dollars
($150,000).
3. If the date of release was on or after May 1, 1990, the financial responsibility requirements for
eligible UST owners or operators will be as follows based on the number of tanks owned or
operated:
(i) 1 to 12 tanks, ten thousand dollars ($10,000) for taking corrective actions and ten thousand
dollars ($10,000) for compensation of third parties;
(ii) 13 to 999 tanks, twenty thousand dollars ($20,000) for taking corrective actions and thirty-
seven thousand five hundred dollars ($37,500) for compensation of third parties; or
(iii) 1,000 or more tanks, fifty thousand dollars ($50,000) for taking corrective actions and two
hundred twenty-five thousand dollars ($225,000) for compensation of third parties.
In the future the Board may change the owner's or operator's limit of Financial responsibility for third
party damages per site per occurrence within the limits specified for 13 or more tanks in T.CLA.
§68—53—101 et seq. if deemed necessary.
TABLE 3
OWNER/OPERATOR FINANCIAL RESPONSIBILITY PER SITE PER OCCURRENCE
DATE
OF
RELEASE
NUMBER OF TANKS
1 • 12 Ibnks
13 - 999 links
1000+ links
Prior to
July 1, 1988
All costs •
Not Fund Eligible
All costs -
Not Fund Eligible
All costs -
Not Fund Eligible
Between July I, 1988
and
June 30, 1989
$75,000
Clean-up/
$150,000 third party
$75,000
Clean-up/
$150,000 third party
$75,000
Clean-up/
$150,000 third party
Between July 1, 1989
and
April 30, 1990
$50,000
Clean-up/
$150,000 third party
$50,000
Clean-up/
$150,000 third party
$50,000
Clean-up/
$150,000 third party
On or After
May 1, 1990
$10,000 Clean-up/
$10,000 third party
$20,000 Clean-up
$37,500 third party
$50,000 Clean-up/
$225,000 third party
August, 1991 (Revised)
84.271
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—I—15
(Rule 1200—1—15—.09, continued)
(c) The fund shall be responsible to eligible UST owners or operators for eligible corrective action costs
above the entry level to the fund in an amount not to exceed one million dollars (51,000,000) per site
per occurrence. Likewise, the fund shall be responsible to eligible UST owners or operators for court
awards involving third party claims above the entry level into the fund in an amount not to exceed
one million dollars ($1,000,000) per site per occurrence.
(9) Fund Ineligible Costs
(a) Costs of replacement, repair, maintenance, and/or retrofitting of affected tanks and associated piping
and any costs not integral to site rehabilitation shall not be eligible for payment or reimbursement
by the Fund. Replacement of asphalt or concrete shall not be eligible for Fund payment or
reimbursement.
(b) 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 as a lump sum to the cost of rehabilitating any given site at which Funds are being claimed
for containment, 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 Division if they
are determined to represent unreasonable costs.
(c) The owner or operator financial responsibility requirements amounts as specified in rule
1200—1—15—.09(8)(b) are not eligible for reimbursement from the Fund. Proof of payment of these
initial amounts is required prior to reimbursement of any costs. The owner or operator's financial
responsibility requirement for talcing corrective actions can not include any cost defined as fund in-
eligible in subparagraph (a) and (b).
(10) Fund Obligations
(a) Contingent upon availability of funds the Commissioner will make obligations from the Fund when:
1. A cost proposal for containment, investigative, or corrective actions, submitted in accordance
with rule 1200—1—15—.09(11) is approved by the Division.
2. A judgment for a third party claim is submitted for payment in accordance with rule
1200—1—15—.09(7) and rule 1200—1—15—.09(12).
3. A payment application is received for containment, investigative, or corrective action work per-
formed from July 1, 1988 until April 15, 1990, subject to a determination of reasonable costs
by the Division. Fund eligibility from July 1, 1988 until April 15, 1990 shall be determined by
fee payment as required by the "Tennessee Petroleum Underground Storage 1&nk Act.
4. A payment application is received for initial release response; abatement measures, and initial
free product removal under the terms of rule 1200—1—15—.09(Il)(c).
5. A payment application is received and approved by the Division for costs associated with pro-
viding an alternate water supply to a person whose water supply has been contaminated by a
release of petroleum.
August, 1991 (Revised)
84.272
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.09, continued)
6. i The commissioner or board determines it is necessary to provide for containment, investigation,
identification, reasonable and safe cleanup and as otherwise provided in the Ibnnessee Petroleum
Underground Storage Tknk Act.
(b) If the unobligated balance of the Fund is less than the total amount associated with payment applica-
tions, cost proposals and third party judgements which have been accepted by the Commissioner, 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 subparagraph (c)
(c) Obligations of funds required for satisfying fund eligible payment applications for work performed
under part (a)3. above or judgements for third party claims which were rendered prior to April 15,
1990 for releases discovered from July 1, 1988, until April 15,1990, will be given priority over payment
applications and cost proposals for releases which occur after April 15, 1990.
(d) All claims against the fund are clearly obligations only of the fund and not of the state, and any amounts
required to be paid under this part are subject to the availabillity of sufficient monies in the fund.
The full faith and credit of the state shall not in any way be pledged or considered to be available
to guarantee payment from such fund.
(11) Requirements for Fund Coverage of Corrective Action Costs . An eligible owner or operator conducting
UST corrective actions is entitled to coverage of reasonable costs from the Fund, subject to the following
provisions:
(a) Upon confirmation of a release in accordance with rule 1200—1—15—.05(3) or after a release from
the UST system is identified in any other manner, owners and operators must perform initial response
actions required in rule 1200—1—15—.06(2), initial abatement measures required in rule
1200—1—15—.06(3)(a)l. through 4. and rule 1200—1—15—.06(3)(b), and initial free product removal
according to rule 1200—1—15—.06(5) and rule 1200—1—15—.06(3)(a)6. necessary to properly stabilize
a site and to prevent significant continuing damage to the environment or risk to human health.
(b) Upon confirmation and reporting of a release in accordance with the requirement of rule
1200—1—15—.05(1) through rule 1200—1—15—.05(3) the owner or operator must select a contractor
from the Division's list of approved contractors if the owner or operator expects to apply for Fund
benefits. The Division must be notified in writing of such a selection within fifteen (15) days or other
time specified by the Division. A contractual agreement must be established between the owner or
operator and the contractor. The Division must be provided a copy of the contractual agreement.
August, 1991 (Revised)
84.2721
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1-15
(Rule 1200—1—15—.09, continued)
(c) If initial release responses, abatement measures and initial free product removal, conducted in accor-
dance with rules 1200—1—15—.06(2) through rule 1200—1—15—.06(5), 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 ten thousand dollars ($10,000.00), then the
owner or the approved corrective action contractor may contact the Division to obtain verbal or writ-
ten approval to allow additional expenditures prior to the submittal of a cost proposal. Additional
expenditures may be authorized by the Division up to a total of thirty thousand dollars ($30,000) which
may be reimbursable from the 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 Division personnel were
unavailable In such a case, the Division must be notified of the actions taken within seventy-two hours.
(d) Following completion of necessary site stabilization actions as described in (c) of this paragraph, subse-
quent investigative and corrective actions must be performed by approved contractors and in accor-
dance with the requirements of rule 1200—1—15—.06(2) through rule 1200—1—15—.06(7). Further,
prior to initiating any of the corrective actions identified in 1. through 5. below, unless otherwise directed
by the Division, the owner or operator must, through the assistance of the selected approved contrac-
tor, prepare and submit to the Division a cost proposal for conducting the proposed corrective action.
Cost proposals shall be submitted in accordance with a format which shall be established by the Division.
1. Preliminary Investigation (Site Check in accordance with rule 1200—1—15—.06(3) through rule
1200—1—15—.06(4)).
2. Free Product Removal (in accordance with rule 1200—1—15—.06(5)).
3. Environmental Assessment Plan and Development of Corrective Action Plan (in accordance with
rule 1200-1—15—.06(6) through rule 1200—1—15—.06(7)).
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
1200—1—15, Appendices 3 and 4).
5. Provision of permanent alternate water supply.
(e) Upon review of a cost proposal for any of the above activities the Division may:
I. Accept the cost proposal and authorize work to be initiated; or
2. Request a modification to or clarification of the cost proposal if projected costs are not deter-
mined to be reasonable,
(f) In addition to the above requirements of (d) and (e) of this paragraph, 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 Board and the Division
in projecting future funding requirements for the 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 regar-
ding a site becomes available.
August, 1991 (Revised)
84.273
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.09, continued)
(g) Upon acceptance of a cost proposal by the Division, sufficient monies will be obligated from the Fund
for completion of the particular phase of work for which the cost proposal was submitted and authoriza-
tion,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) Corrective actions performed prior to acceptance of an associated cost proposal may not be eligible
for reimbursement.
(i) If the cost of completing any of the corrective 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.
0) Any corrective action which is carried out in response to any discharge, release, or threatened release
of petroleum from an UST must be conducted in accordance with the requirements of rules
1200—1—15—.06(1) through 1200—1—15—.06(7) and subparagraphs (a) through (d) of this paragraph.
(k) The owner or operator or the selected corrective action contractor shall keep and preserve detailed
records demonstrating compliance with approved investigative and corrective action plans and alt in-
voices and financial records associated with costs for which reimbursement will be requested. These
records shall be kept for at least three years after corrective action has been completed for a site.
(1) The selected corrective action alternative must be implemented in a manner acceptable to the Division
in accordance with an approved plan in order for the owner or operator to be eligible for the reim-
bursement of costs.
(m) An eligible owner or operator conducting UST response actions from July 1, 1988 until April 15, 1990,
relative to any discharge, release or threatened release of petroleum from an UST, is entitled to reim-
bursement of reasonable costs above entry level from the Fund but,is exempted from the requirements
of subparagraphs (b) through (i) above, provided that corrective actions were carried out in accor-
dance with a plan approved by the Division.
(n) If corrective actions which were initiated during the time period referenced in subparagraph (m) above
are still continuing on April 15, 1990, the Division may require submittal of cost proposals for any
remaining phases of work and for the total projected cost of the remediation.
(o) If the contractor performing corrective actions as described in subparagraph (n) above is not an ap-
proved contractor, the Division may authorize the continued use of that contractor.
(p) If a contractor is performing corrective action at a site prior to development of an approved contrac-
tor list, the Division may authorize the continued use of that contractor.
(12) Requirements for Fund Coverage of Third Party Claims. An eligible owner or operator is entitled to Fund
coverage for third party claims resulting from the release of petroleum from an UST, subject to the follow-
ing provisions:
(a) The Division was notified by the owner or operator upon the receipt of notice of the third party liabili-
ty suit;
(b) The owner or operator was in substantial compliance at the time the release occurred and at the time
the third party suit is filed;
April, 1990 (Revised)
84.274
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.09, continued)
(c) The third party obtains a final judgment enforceable in Tennessee; and
(d) The final judgment is for an amount greater than the Fund entry level in effect on the day the release
was reported to the Department.
(13) Applications for Payment
(a) Applications for reimbursement for costs of corrective actions shall be submitted on a form establish-
ed by the Division 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 Division,
or which the applicant may wish to piovide.
(b) 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 corrective actions:
I certify to the best of my knowledge and belief: that the.costs presented therein represent actual
costs incurred in the performance of response actions at this site during the period of time in-
dicated on this application; that an accidental release has occurred from a petroleum underground
storage tank system at this site; and that no charges are presented as part of this application
that do not directly relate to the performance of corrective actions related to the release of
petroleum at this site.
(c) Applications for payments may be submitted following acceptance by the Division of completed cor-
rective actions. Such corrective actions may include but are not limited to the following:
1. Completion of site stabilization activities which were authorized by the Division;
2. Completion and submittal of a report for a Preliminary investigation (site check);
3. Implementation of a Free Product Removal System;
4. Development and submittal of an Environmental Assessment Plan;
5. Implementation of Environmental Assessment as approved in the Environmental Assessment Plan
and Development of Remedial Action Plan;
6. Implemention of Remedial Action Plan; and
7. Provision of an alternate water supply.
(d) Applications for payments for the implementation of corrective action may be submitted sixty (60)
days following initiation of work to implement the corrective action plan and at sixty (60) day inter-
vals thereafter until completion of the authorized activities. Upon request, the Division may approve
interim payments at more frequent intervals.
(e) All payment shall be subject to approval by the Division. Should a site inspection or other informa-
tion available to the Division reveal a discrepancy between the work performed and the work address-
ed by a payment application, the Department may deny payment or may require the Fund to be
reimbursed.
April, 1990 (Revised)
84.275
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER. 1200—1—15
(Rule 1200—1—15—.09, continued)
(0 An application for payment must be received within one year from the date of performance or accept-
ance of the work in order to be eligible for payments from the Fund.
(g) Except for the situations provided for in rules 1200—1—15—.09(1 l)(b) and rule 1200—1—15—.09(H)(1),
payment shall not be made for corrective actions performed at a site until the Division has reviewed
and accepted a cost proposal for that work and until funds have been obligated from the Fund for
completion of that particular stage of work.
(h) For payment of third party claims the UST owner or operator must submit an application to the Divi-
sion attaching the original or a certified copy of a final judgment (enforceable in Tennessee) with proof
of payment of the applicable financial responsibility requirement for compensation of third parties
as specified in rule 1200—I—15—,09(8)(b). This application must be received by the Division no later
than thirty (30) days after notification of judgment.
(14) Fund Payment Procedures
(a) Where the owner or operator has submitted an acceptable application for payment for corrective ac-
tions 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 corrective action services
or third party.
(b) Payments from the 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 in excess of the
applicable financial responsibility requirement for taking corrective actions as specified in rule
1200—1—15—,09(8)(b).
(c) The owner or operator is responsible for final payment to the contractor who performed (he corrective
actions and for payment of judgments to third parties.
(d) Contingent upon availability of funds, the Department shall process all applications for payment within
forty-five (45) days of receipt of application. If all costs are considered to be reasonable and eligible
for reimbursement, payment will be issued within the forty- five (45) day period. If certain costs are
considered as not being reasonable or eligible for reimbursement, the Department may issue a check
for the amount of the application not in question and provide a fifteen (15) day period in which the
owner or operator or contractor may present such information as is necessary to justify the disallowed
costs. Following review of such information, the Department may agree to pay the previously disallowed
costs, or any portion thereof, or may again disallow the costs for payment.
(15) Approval of Corrective Action Contractors
(a) The Corrective Action Contractor ("CAC") is the person responsible for conducting and overseeing
the corrective action at a petroleum underground storage tank site. There shall be only one CAC for
each site.
I. The CAC shall be either:
(i) A properly licensed contractor pursuant to T.C.A. §62—6—101 et seq., which may include
but is not limited to engineers, geolosists, or other environmental professionals; or
(ii) An owner or operator of the petroleum underground storage tank(s) which caused the release
of petroleum to the.environment, provided thai each contractor/subcontractor working for
the owner or operator must be a properly licensed contractor pursuant to T.C.A. §62—6—101
et seq.
(b) CACs will be approved to perform Fund eligible work upon satisfaction of the following:
January, 1993 (Revised)
84.276
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.09, continued)
1. The CAC files a written application (o become an Approved Corrective Action Contractor with
the Division via certified mail or personal service. This application shall be updated annually
and include name of CAC, principal(s) of CAC, address(es) of CAC's office, office phone
number(s) of CAC, and other information requested by the Division of Underground Storage
Tanks.
2. The CAC submits a sworn statement with the written application in part 1., including the follow-
ing provisions:
(i) The CAC will abide by and comply with the Rules and Regulations of the Department of
Finance and Administration, Chapter 0620—3—3, Personal Services and Consultant Ser-
vices Contracts;
(ii) The CAC will have written contract(s) with all contractors/subcontractors, and contract(s)
shall contain provisions that contractors/subcontractors will abide by and comply with the
Rules and Regulations of the Department of Finance and Administration, Chapter 0620—
3—3, Personal Services and Consulting Services Contracts. Contract(s) between the CAC
and contractors/subcontractors shall also contain provisions that all site workers working
under authority of contractors/subcontractors shall have applicable healm and safety training
when required by the Tennessee Department of Labor;
(iii) Site workers working under authority of the CAC will have the applicable health and safe-
ty training when required by the Tennessee Department of Labor;
(iv) The,CAC understands that reimbursement from the Fund will be in accordance with the
reasonable rate schedule as established by the Department;
(v) If the CAC is not the owner or operator of the tank that caused the release, the CAC will
have a written contract with the UST owner and/or operator, and the contract shall contain
the following sentence conspicuously located on the first page of the contract:
THE CORRECTIVE ACTION CONTRACTOR WILL/WILL NOT (mark one) USE THE
DEPARTMENT'S REASONABLE RATE SCHEDULE WHEN INVOICING THE
OWNER OR OPERATOR FOR THE EXPENSES INCURRED IN THE INVESTIGA-
TION AND CLEANUP OF THIS SITE;
(vi) If the CAC is the owner or operator of the tank which caused the release, the CAC will
have a written contract with all contractors/subcontractors, and the contract shall contain
the following sentence conspicuously located on the first page of the contract:
THE CONTRACTOR/SUBCONTRACTOR (mark one) WILL/WILL NOT (mark one)
USE THE DEPARTMENT'S REASONABLE RATE SCHEDULE WHEN INVOICING
THE OWNER OR OPERATOR FOR THE EXPENSES INCURRED IN THE IN-
VESTIGATION AND CLEANUP OF THIS SITE;
(vii) The CAC's services will be performed in a manner consistent with the level of care and
skill ordinarily exercised by members of their profession practicing in the State of Tennessee,
under similar cc nditions, and at the time the services were rendered. The CAC shall not
knowingly or willfully cause the spread of contamination nor inhibit corrective action at
the site;
(viii) The CAC will gather and maintain documentation and records necessary for filing a claim
with the Tennessee Petroleum Underground Storage Tank Fund;
January, 1993 (Revised)
84.2761
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1-15
(Rule 1200—1—15—.09, continued)
(ix) The CAC will, at a minimum, follow Quality Assurance/Quality Control Standard Operating
Procedures suppled by the Division, unless alternate Quality Assurance/Quality Control
is approved in writing in advance by the Division;
(x) The CAC will assure that the CAC and/or any person (lie CAC employs or contracts with
to engage in the practice of engineering shall be appropriately licensed/registered under
the Tennessee Architects, Engineers, and Landscape Architects Law (T.C.A. §62—2—101
et seq.)\
(xi) The CAC will assure that any and all work defined as contracting in Tennessee Contrac-
tor's License Law (T.C.A. §62—6—101 et seq.) shall be performed by a licensed contrac-
tors) with appropriate classification and monetary limitation;
(xii) The CAC will assure that the CAC and/or any person Ihe CAC employs or contracts with
to perform professional geologic work shall be appropriately registered under the Tennessee
Geologists Act (T.C.A. §62-56-/0/ et seq.)\ and
(xiii) The CAC will assure that all work done by the CAC had the prior approval of a Registered
Professional Engineer or Professional Geologist who is licensed/registered with the Ten-
nessee Department of Commerce and Insurance, and the work was done as specified in
chapter 1200—1—15 and/or according to a plan approved by the Division. The CAC will
assure that all plans and reports submitted to the Division were prepared and signed by
the Registered Professional Engineer or Professional Geologist who prepared or is respon-
sible for the plan or report. The CAC will further assure that a Registered Professional
Engineer or Professional Geologist shall make periodic site visits to verify whether or not
the work performed was as specified by the Registered Professional Engineer or Profes:
sional Geologist, and as specified in chapter 1200—I—15, and/or according to a plan ap-
proved by the Division. The CAC shall require a Registered Professional Engineer or Pro-
fessional Geologist to submit a signed certification based on their personal observation and
review of job site records stating whether or not the work was performed as directed by
the Registered Professional Engineer or Professional Geologist, and whether or not the work
has been performed in accordance with chapter 1200—1—15, and/or a plan approved by
the Division. If the work was not performed according to the above specifications, the cer-
tification shall include a listing of how the work which was performed varies from chapter
1200—1—15, the approved plan, and/or the authorization of the Registered Professional
Engineer or Professional Geologist and the specific reason for each variation. The certifica-
tion shall be submitted according to a schedule and format determined by the Division.
3. The CAC has any applicable license(s) and registration(s) required in the State of Tennessee; and
(i) If the CAC is a licensed contractor, the contractor must be properly licensed with an S-
Underground Tank Installers, Removal, and Remediation of Pollutants or other applicable
classification with a monetary limitation as required under rule 0080—1—.13 and established
by the Board for Licensing Contractors of the Tennessee Department of Commerce and
Insurance in the amount of at least three hundred fifty thousand dollars (5350,000). Date
of license expiration must be included. The CAC shall submit requirements of this part
with the application required in part I. and must submit documentation of any changes,
renewals, renovations, etc. of the CAC's Tennessee license. (There shall be no Fund reim-
bursement for those expenses which exceed the contractor's monetary limitation.)
(ii) All contractors and their subcontractors and employees shall have other applicable license(s)
and registration(s).
4. The CAC shall maintain liability insurance covereage of the types and in the amounts described
in the Table below, or the equivalent, and shall provide certification to the Division of such coverage
with the application described in part 1. and yearly thereafter, or more frequently if necessary
to keep the Division updated as to the CAC's current insurance coverage.
January, 1993 '(Revised)
84.2762
-------
UNDERGROUND STORAGE TANK PROGRAM
Limits of Liability
(Rule 1200—1—15—.09, cominued)
TVpe of Policy
Worker's Compensation
Employer's Liability
Automobile Liability
General Liability
Statutory
$500,000
$1,000,000 combined
single limit (bodily
injury and properly
damages)
$1,000,000 combined
single limit
CHAPTER 1200—1—15
Description
Alt states
All owned, non-owned,
and hired vehicles
Broad Form
Comprehensive General
Liability
5. The CAC will submit a list of the CAC's employees which will be utilized by the CAC as a part
of the assessment and remediation of UST sites in the Stale of Tennessee. This list shall include
each employee's job description, title, office, location, and telephone number. This information
shall be submitted with the application described in part 1. and annually thereafter.
(c) The Department will provide notice that applications are to be requested by publication of a legal
advertisement which will provide interested firms with the information necessary to request instruc-
tions for preparation and submittal of applications and supporting documentation. Prior to the develop-
ment of an Approved Corrective Action Contractors List, the Department will contact consulting firms
listed on the unendorsed list titled "Professional Consulting Firms - Engineers and Geologists" to notify
consulting firms of the requirements of subparagraph (b) above. Applications received within 45 days
of the date of legal advertisement shall be reviewed prior to establishing a list of Approved Corrective
Action Contractors. Applications and supporting documentation shall be independently evaluated by
members of a review committee consisting of Division of Underground Storage Tank staff members
according to criteria of subparagraph (b) of this paragraph. Those CAC's satisfactorily meeting the
requirements of (b)l. through 5. above shall be placed on the Department's list of UST Approved Cor-
rective Action Contractors. Once a CAC has been approved they will not be required to requalify ex-
cept under the provisions of subparagraphs (d), (0. and (h) below.
1. applications received after 45 days from the date of the legal advertisement shall not be reviewed
unlit a list of Approved Corrective Action Contractors is established. These and subsequent ap-
plications shall be reviewed by the review committee and either added to the list of Approved
CACs or denied Approved CAC status within 90 days of receipt of the completed application
with supporting documentation, or establishment of the Approved CAC list, whichever is later.
2. If the review committee does not approve a CAC and does not place the CAC on the list of Ap-
proved CACs, the decision of the review committee may be appealed to the Board.
3. CAC's who previously submitted applications but did not meet requirements of (b)l. through
5. of this paragraph may submit a subsequent application for review at such lime ihey feel that
the requirements of (b)l. through 5. may have been met.
(d) A CAC will be removed from the Division's Approved CAC list when it has been determined that
the CAC has failed to satisfactorily maintain the requirements of subparagraph (b) above or has com-
mitted one or more of the violations listed in subparagraph (e) below.
I. The removal process shall be initiated when a compliant is referred to the Division's review
committee.
2. The review committee shall inform the CAC via certified mail of receipt of a complaint.
January, 1993 (Revised) 84.277
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1—15
(Rule 1200—1—15—.09, continued)
3. The Division's review committee may request the CAC to appear at a meeting to show cause
why the Department should not remove the CAC from the list of Approved CACs.
4. The CAC may request a meeting with the review committee.
5. The review committee shall notify the CAC of its decision via certified mail a minimum of thirty
(30) days after dispatch of the certified letter referenced in part 1. above.
6. If the review committee decides to remove the CAC from the list of Approved CACs, removal
shall be effective sixty (60) days after dispatch to the last known address on file with the Division
(i) the CAC corrects the non-compliance to the satisfaction of the review committee during
the sixty (60) day period; or
(ii) the CAC files a written appeal with the Division within the sixty (60) day period requesting
a hearing to appeal the decision of the review committee to the Board.
7. The filing of an appeal will postpone actions to remove a CAC from the list of Approved CACs
until the appeal is heard by the Board.
8. Once the review committee has dispatched a Notice of Removal to a CAC via certified mail,
the Division will approve no additional plans, scopes of work,-or cost proposals if such approval
will cause Division personnel to violate T.C.A. §62—6—120(c)(1).
9. If an appeal is not filed during the sixty (60) day period, the decision of the review committee'
will be final.
10. A CAC removed from the Approved CAC list may reapply for approval as provided for in sub-
parts (i) or (ii) below:
(i) A CAC who was removed from the Approved CAC list due to failure to satisfactorily main-
tain the requirements of (b) above may reapply under subparagraphs (b) and (c) above once
the requirements of subparagraph (b) have been met.
(ii) A CAC who was removed from the Approved CAC list due to one or more of the viola-
tions listed in (e) below may reapply after one (1) year. The CAC must submit evidence
showing the reasons why the CAC should be reinstated for evaluation by the review com-
mittee. The CAC must reapply under the provisions of paragraph (15), subparagraphs (b)
and (c) of this rule.
(e) A CAC may be removed from the list of approved Corrective Action Contractors if it is determined
by a review committee consisting of Division staff memebers that the CAC has done any of the following:
1. The CAC charged the state or owner/operator for work which was not performed;
2. The CAC filed false information with the Department;
3. The CAC has been found guilty of violating any of the following or a comparable law in another
jurisdiction;
unless:
(i) T.C.A. §39—16—503
(ii) T.C.A. §39—16—504
(iii) T.C.A. §39—14—130
(iv) T.C.A. §39—14—114
(v) T.C.A. 139—14—104
(vi) T.C.A. §39—14—103
Tampering with or fabricating evidence;
Destruction of and tampering with governmental records;
Destruction of valuable papers with intent to defraud;
Forgery;
Theft of services, or
Theft of property.
January, 1993 (Revised)
84.2771
-------
UNDERGROUND STORAGE TANK PROGRAM CHAPTER 1200—1 — 15
(Rule 1200—1—15—.09, continued)
4. The CACs or an employee(s), principal(s), or officer(s) of the CAC is found to have engaed in
the unautorized practice of engineering, contracting, or geology under T.C.A. §§d2—2—101 et
seq., 62—6—101 et seq., and 62—36—101 et seq., or a comparable law in another jurisdiction
by the appropriate regulatory agency or court.
5. Due to the quality of work performed by the CAC, the CAC has significantly delayed or in-
hibited progress in achieving appropriate corrective action at a site(s). This shall include, but
shall not be limited to, the following:
(i) The CAC performs a non-approved action which spreads contamination in the environment;
(ii) The CAC files a plan (e.g. Environmental Assessment Plan, Corrective Action Plan, etc.)
which is rejected by the Division as deficient, followed by three subsequent revisions, each
of which is rejected by the Division as deficient; or
(iii) The CAC fails to supply recommendations for further assessment, remediation, site specific
cleanup standards, site closure, or other conclusions supported by the following:
(I) The physical and chemical characteristics of petroleum, incl. ding its toxicity, per-
sistence, and potential for migration;
(II) The hydrogeologic characteristics of the petroleum site and the surrounding land;
(III) The proximity, quality, and current and future uses of groundwater;
(IV.) An exposure assessment;
(V) The proximity, quality, and current and future uses of surface waters;
(VI) Applicable regulations in chapter 1200—1 — 15; and
(VII) The magnitude and extent of petroleum contamination at the petroleum site and the
surrounding land.
(iv) The CAC supplies recommendations for further assessment, remediation, site specific
cleanup sn Hare's, r ° chs'ire, or other conclusions not supported by items (I) through
.isteu ' i si.a' thi. ^rt.
6. The CAC filed plan(s) or report(s) which do not bear the appropriate signature and Tennessee
license/registration number of a Registered Professional Engineer or Professional Geologist.
7. The CAC performed work which did not have the prior approval of a Registered Professional
Engineer or Professional Geologist who is licensed/registered with the Tennessee Department
of Commerce and Insurance.
8. The CAC has deviated from an approved plan or scope of work as approved without the ap-
proval of the Division. This includes, but is not limited to, the following:
(i) Failure to follow Quality Assurance and Quality Control approved in the plan, or
(ii) Failure io follow the schedule for implementation approved in the plan.
9. The CAC has failed to follow Quality Assurance/Quality Control (QA/QC) supplied by the Divi-
sion without having alternate QA/QC approved in advance in writing by the Division.
10. The CAC has failed to follow UST regulations promulgated in chapter 1200—1—15.
January, 1993 (Revised)
84.2772
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1-15
(Rule 1200—1 —15—.09, continued)
11. The CAC failed to have a Registered Professional Engineer or Professional Geologist file a sign-
ed certification according to a schedule and format required by the Division. Said certification
shall be based on the Registered Professional Engineer's or Professional Geologist's personal obser-
vation and review of job site records. The certification shall state whether or not the work was
performed as directed by a Registered Professional Engineer or Professional Geologist, and whether
or not the work has been performed in accordance with chapter 1200—1—15, and/or a plan ap-
proval by the Division. The certification shall include a listing of how the work performed varies
from chapter 1200—1—15, the approved plan, and/or the work approved of the Registered Pro-
fessional Engineer or Professional Geologist and the specific reason for each variation.
12. The CAC has failed to annually submit an updated application or a list of the CAC's employees
who will be utilized by the CAC as a part of the assessment and remediation of the UST site
in the Stale of Tennessee, including each employee's name, title, job description, office, location,
and telephone number.
(0 No CAC shall be placed on the Approved Corrective Action Contractors list if the CAC is on a list
of contractors banned from usage on federally funded projects. If a CAC on the Approved Corrective
Action Contractors list is placed on the list of contractors banned from usage on federally funded
projects, that CAC will be removed from the Approved Corrective Action Contractors list. When the
CAC is removed from the list of contractors banned from usage on federally funded projects, the CAC
may apply to be added to the Approved Corrective Action Contractors list according to procedures
outlined in subparagraphs (b) and (c) of this paragraph. A CAC on a list of contractors banned from
usage on federally funded projects can not work as a subcontractor to an Approved Corrective Action
Contractor.
(g) The appearance of a CAC on the Division's list of Approved Corrective Action Contractors shall in
no way establish liability or responsibility on the part of the Division, the Fund, or the State of Ten-
nessee in regards to the services provided by the CAC or circumstances which may occur as a result
of such services.
(h) An owner or operator may perform corrective actions for releases of petroleum from USTs he owns
or operates provided that he submits an application with documentation as described in subparagraphs
(b) and (c) and the application is approved by the Division. The owner or operator may use qualifica-
tions of subcontractor(s) in addition to qualifications of the owner or operator in applying for Ap-
proved Corrective Action Constructor status. If an owner or operator uses a subcontractor(s) in quali-
'ying for an Approved Corrective Action Contractor classification and there is a change of a subcon-
t actor whose qualifications were used in the application or documentation, then the owner or operator
must notify the Division; the owner or operator shall be removed from Approved Corrective Action
Contractor status. The owner or operator must submit a new application with documentation and
be approved as discussed in subparagraphs (b) and (c) to continue work as an Approved Corrective
Action Contractor.
(i) A CAC working as a subcontractor under contract to an Approved CAC is not required to be classified
as an Approved CAC. The subcontractor must maintain all applicable license(s) and/or registration(s)
required in the State of Tennessee for work performed.
(16) Insufficient Funds
(a) Nothing in these regulations shall establish liability or responsibility on the part of the Commissioner
or state of Tennessee to pay any corrective action costs or third parly judgments from any other source
than the Fund, nor shall the Commissioner or state of Tennessee have any liability or responsibility
to make any payments for corrective action costs or third party judgments if the Fund is insufficient
to do so.
January, 1993 (Revised)
84.278
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.09, continued)
(b) In the event the Fund is insufficient to make full payments for eligible UST owners or operaiors talcing
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
1200—1—15—,09(10)(b) and (c).
(c) The owner of an UST retains responsibility for any liability that cannot be satisfied by the provisions
of this rule.
(d) Within 30 days after receipt of notification that the fund has become incapable of paying for assured
corrective action or third party compensation costs, the owner or operator must obtain alternate financial
assurance.
(17) Recovery of Costs by State — Apportionment of Liability.
(a) Making use of any and all appropriate existing state legal remedies, the Commissioner may commence
court action to recover the amount expended by the state from any and all responsible parties for each
site investigated, identified, contained or cleaned up, including up to the limits of financial respon-
sibility for owners and/or operators of petroleum underground storage tanks covered by the fund and
the entire amount from owners and/or operators of petroleum underground storage tanks not covered
by the fund.
(b) In any action under this rule, no responsible party shall be liable for more than that party's apportion-
ed share of the amount expended by the state for such site. The responsible party has the burden of
proving his apportioned share. Such apportioned share shall be based solely on the liable party's por-
tion of the total.yolume of the petroleum at the petroleum site at the time of action under this chapter.
Any expenditures required by the provisions of this chapter made by a responsible party (before or
after suit) shall be credited toward any such apportioned share.
(c) In no event shall the total moneys recovered from the responsible party or parties exceed the total ex-
penditure by the state for each site.
(d) Any party found liable for any costs or expenditures recoverable under this chapter who establishes
by a preponderance of evidence that only a portion of such costs or expenditures are attributable to
his or her actions shall be required to pay only for such portion.
(e) .i the-.ier u ,c .';.u as n. . .itx. . o . jiis, ji_h ty's po. ion of costs or expen-
ditures in such a cost recovery, the court shall apportion such costs or expenditures among the defen-
dants, to the extent practicable, according to equitable principles.
(18) Failure to Take Proper Action
Any responsible party who fails without sufficient cause to properly provide for removal of petroleum or
remedial action upon order of the commissioner pursuant to this chapter may be liable to the state for a
penalty in an amount equal to one hundred fifty percent (150%) of the amount of any costs incurred by
the state as a result of such failure to take proper action. The Commissioner may recover this penalty in
an action commenced under T.C.A. §63—53—115, rule 1200—1—15—.09(17), or in a separate civil action,
and such penalty shall be ir. addition to any costs recovered from such responsible party pursuant to this
chapter.
(19) Severability. If any paragraph, subparagraph, part, subpart, item or subitem of this rule is adjudged un-
constitutional or invalid by a court of competent jurisdiction, the remainder of this rule shall not be af-
fected thereby.
Authority: T.C.A. §§68—53—107, 68—S3—113 and 4—5—201 el seq. Administrative History: Original rule filed March
1. 1990; effective April 15, 1990. Amendment filed July 3, 1991; effective August 17, 1991. Amendment filed November
24, 1992; effective January 9, 1993.
January, 1993 (Revised)
84.279
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Underground storage tank program chapter 1200-1-15
1200-1-15—.10 FEE COLLECTION AND CERTIFICATION ISSUANCE REGULATIONS.
(1) Purpose — The purpose of this rule is to establish a system and schedule for collection of underground
storage tank fees.
(2) Applicability — Requirements of this rule apply to the following persons:
(a) All owners/operators of petroleum underground storage tanks reported under the requirements of T.CA.
§65—S3—101 et seq. as follows:
1. All petroleum underground storage tanks that are actively storing petroleum;
2. All petroleum underground storage tanks that are reported as in service on July 1 of the current
year; and
3. All petroleum underground storage tanks taken temporarily out of service after June 30, 1988
and have not been properly closed.
(b) Rule 1200—1—15—.10 becomes effective July 1, 1990.
(3) Annual Petroleum Underground Storage Thnk Fees
(a) Any person required to pay a fee under this rule shall submit the fee in the specified amount, with
checks made payable to the Department of Health and Environment/Underground Storage 1hnk Divi-
sion for deposit in the State Treasury.
(b) Any person who is an owner of a petroleum underground storage tank subject to annual fees shall
pay the required annual fee unless a notarized agreement signed by the owner and the operator of
petroleum underground storage tanks stipulates that the operator shall pay the annual fee. A new agree-
ment must be submitted annually if the operator is to pay the annual fee.
(c) The fee schedule provided in this rule shall be based upon the annual financial requirement to .operate
the petroleum underground storage tank program established pursuant to T.CLA. §65—53—101 etseq.
(d) The amount of the annual petroleum underground storage tank fee shall be one hundred twenty-five
dollars (S125) per tank.
(e) The amount of the annual administrative service fee for agencies and functions of the U.S. Govern-
ment having sovereign immunity shall be twenty five dollars (525) per tank. Agencies and functions
of the U.S. Government are not eligible for benefit or financial assistance from the Tknnessee Petroleum
Underground Storage Iknk Fund.
(f) Any owner'or operator who pays an annual fee on an existing underground storage tank which is subse-
quently permanently closed in accordance with rule 1200—1—15—.07(2) and replaced by a new
underground storage tank installed at the same site in accordance with rule 1200—1—15—.02(1) and
1200—1—15—.02(3) will not be required to pay an additional annual fee:
(g) Payment of the entire amount of the annual fee is required for underground storage tanks in service
or temporarily out of service during any portion of the current billing year. Tfcnks placed into service
after the current billing year begins or tanks which are permanently closed before the current billing
year ends are not due a refund of the annual fee or any portion thereof.
(4) Use of the Fee
(a) The annual petroleum underground storage tank fees shall be deposited into the Petroleum Underground
Storage Iknk Fund and shall be used as specified in the Tennessee Petroleum Underground Storage
Icink Act. The use of the fund includes but is not limited to:
1. Provide a mechanism to assist with the financial responsibility requirements for owners and/or
operators of petroleum underground storage tanks, including cleanup of contamination and third
party claims due to bodily injury and/or property damage caused by leaking petroleum
underground storage tanks.
August, 1991 (Revised) 84.280
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—10, continued)
(i) The fund shall provide for cleanup of contamination caused by leaking petroleum
underground storage tanks whose owners and/or operators have paid the required petroleum
underground storage tank fee, The fund shall be responsible for cleanup costs above the
entry level to the fund in an amount not to exceed one million, dollars ($1,000,000). The
initial owner and/or operator financial responsibility requirement for clean-up (taking cor-
rective actions) is specified in rule 1200—I—-15—.09(8)(b).
(ii) The fund shall provide coverage for third-party claims involving bodily injury and/or pro-
perty damage caused by leaking petroleum underground storage tanks whose owners and/or
operators have paid the required petroleum underground storage tank fee. The fund shall
be responsible for court awards involving third party claims above the entry level into the
fund in an amount not to exceed one million dollars (51,000,000). The initial owner and/or
operator financial responsibility requirements for third party claims involving bodily in-
jury or property damage is specified in rule 1200—1™15—.09(8)(b).
2. Provide for administrative costs of implementation of the Petroleum Underground Storage Iknk
Program,
(5) Failure to Fay the Annual Petroleum Underground Storage Thnk Fee
(a) Any petroleum underground storage tank owner/operator who fails to pay the lawfully levied petroleum
underground storage tank fee will be assessed a monthly penalty of 5 percent (5%) of the amount.
Such penalty shall be assessed monthly until the fee and all associated penalties are paid. The monthly
penalty may tje waived by the Commissioner upon receipt of documentation justifying late fee payment.
(b) The Department shall not issue a petroleum underground storage tank certificate to any facility where
the owner/operator has failed to pay the lawfully levied petroleum underground storage tank fees- To
refuse or fail to pay the Department the annual fee per tank is an unlawful action as described in
T.CA. §68—53—104(3).
(c) The Department shall revoke the petroleum underground storage tank certificate for any facility for
which the owner/operator has failed to pay the lawfully levied petroleum underground storage tank
fee{s). Should an owner/operator fail to pay the annual fee(s)t following 15 days from the receipt of
written notice that the Department intends to remove the certificate, a Division representative may
remove the certificate from a facility.
(d) Upon failure or refusal of an owner and/or operator of a petroleum underground storage tank, sub-
ject to fees by regulation, to pay a fee lawfully levied within a reasonable time allowed by the Commis-
sioner, the Commissioner may proceed in the Chancery Court of Davidson County to obtain judg-
ment and seek execution of such judgment.
(6) Petroleum Underground Storage Ttnk Annual Fee Notices
(a) Prior to the due date of the annual underground storage tank fee, the Division shall issue fee notices
to the owner/operator of the petroleum underground storage tanks. Fee notices and due dates shall
be staggered using the three grand divisions of the state of Tennessee.
1. Iknk fees for underground storage tanks in the following East Tennessee counties shall be due
on July 31 of each year-
Johnson, Sullivan, Carter; Washington, Unicoi, Hancock, Hawkins, Greene, Claiborne, Grainger,
Hamblen* Cocke, Scott, Campbell Union, Anderson, Knox, Jefferson, Sevier, Morgan, Roane,
Loudon, Blount, Bledsoe, Rhea, Meigs, McMinn, Monroe, Grundy, Sequatchie, Hamilton, Bradley,
Polk, Franklin, and Marion,
August, 1991 (Revised)
B4.2S1
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200-1—15
(Rule 1200—1—15—.10, continued)
2. Tknk fees for underground storage tanks in the following Middle Tennessee counties shall be due
October 31 of each year;
Stewart, Montgomery, Robertson, Sumner, Macon, Clay, Pickett, Houston, Hickman, Cheatham,
Davidson, Wilson, Housdale, Smith, Jackson, Overton, Fentress, Putnam, Cumberland, White,
DeKalb, Van Buren, Warren, Cannon, Rutherford, Williamson, Dickson, Humphreys, Perry*
Wayne, Lewis, Lawrence, Maury, Giles, Marshall, Lincoln, Moore, Bedford, and Coffee.
3. Tank fees for underground storage tanks in the following West Ttnnessee counties shall be due
January 31 of each year:
Lake, Obion, Weakley, Henry, Dyer, Crockett, Gibson, Carroll, Benton, Lauderdale, Tipton, Shelby,
Haywood, Fayette, Madison, Hardeman, Henderson, Chester, McNairy, Decatur, and Hardin,
(b) The owner/operator of petroleum underground storage tanks shall pay the annual fee on or before
the due date.
(c) Any owner who brings an underground storage tank system into use after July I, 1989, must submit
the current year's tank fee with the required notice of existence of such tank system required in rule
1200—1—15—,02(3)(a>.
(7) Issuance of Annua! Petroleum Underground Storage Tank Facility Certificates
(a) The Division shall issue petroleum underground storage tank facility certificates annually. The cer-
tificate will contain the facility identification number, address, number of underground storage tanks,
and the size of said tanks. The color of the certificate will be changed annually in order to assist per-
sons delivering petroleum in determining if the underground storage tank facility has a current certificate.
(b) Certificate issuance shall be staggered using the three grand divisions of the state of Tennessee* Cer-
tificates shall be issued as follows:
1. Petroleum underground storage tank facility certificates for East Tennessee shall be issued in the
month of September to owner/operators for petroleum underground storage tanks in the follow-
ing counties:
Johnson, Sullivan, Carter, Washington, Unicoi, Hancock, Hawkins, Greene, Claiborne, Grainger*
Hamblen, Cocke, Scott, Campbell, Union, Anderson, Knox, Jefferson, Sevier, Morgan, Roane,
Loudon, Blount, Bledsoe, Rhea, Meigs, McMinn, Monroe, Grundy, Sequatchie, Hamilton, Bradley,
Polkj Franklin, and Marion,
The annual certificate shall be effective for one year, starting October 1 of the year to September
30 of the following year.
2. Petroleum underground storage tank facility certificates for Middle Tennessee shall be issued in
the month of December to owner/operators for petroleum underground storage tanks in the follow-
ing counties:
Stewart, Montgomery, Robertson, Sumner, Macon, Clay, Pickett, Houston, Hickman, Cheatham,
Davidson, Wilson, Trousdale, Smith, Jackson, Overton, Fentress, Putnam, Cumberland, White,
DeKalb, Van Buren, Warren, Cannon, Rutherford, Williamson, Dickson, Humphreys, Perry,
Wayne, Lewis, Lawrence, Maury, Giles, Marshall, Lincoln, Moore, Bedford, and Coffee,
The annual certificate shall be effective for one year, starting January I of the year to December
31 of the same year.
April, 1990 (Revised)
84,282
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—15
(Rule 1200—1—15—.10, continued)
3. Petroleum underground storage tank facility certificates for West Tennessee shall be issued in
the month of March to owner/operators for petroleum underground storage tanks in the follow-
ing counties:
Lake, Obion, Weakley, Henry, Dyer, Crockett, Gibson, Carroll, Benton, Lauderdale^ Tipton, Shelby,
Haywood, Fayette^ Madison, Hardeman, Henderson, Chester, McNairy, Decatur, and Hardin,
The annual certificate shall be effective for one year, starting April 1 of the year to March 31
of the following year.
(8) Unlawful Action
It shall be unlawful to put petroleum into underground storage tanks at a facility without a current petroleum
underground storage tank facility certificate. This is a violation for the person putting petroleum into the
underground storage tank as well as for the person having product put into the underground storage tank.
(9) Removal of Certificates
The Division may remove the petroleum underground storage tank facility certificate from a facility if the
owner/operator violates the provisions of TCLA. §68—53—101 et seq* or any regulations promulgated subse-
quent to this Act. Such removal must be authorized through issuance of a Commissioner's Order due to
violations of the Act or regulations. The owner/operator may appeal the Commissioner's Order to the Board.
Authority: TCLA. §§<55—53—70/ etseg^ 68—53—107, 68—53—113 and 4—5—201 etseq. Administrative History: Original
rule filed March 1, 1990; effective April 15, 1990. Amendment filed July 3, 1991; effective August 17, 199L
August, 1991 (Revised)
84.283
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UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1-15
1200—1—15—.11 UNDERGROUND STORAGE TANK PROGRAM.
(1) Purpose. The purpose of this rule is to establish a system and schedule whereby certain fees shall be levied
by the Petroleum Underground Storage T&nk Board and collected by the Commissioner. Expenditures of
such fees collected shall be restricted to operation of the Petroleum Underground Storage Tknk Program
established pursuant to T.CLA. §65—53—101 et. seq.
(2) Applicability. Requirements of this rule apply to the following persons:
(a) All owners/operators of petroleum underground storage tanks reported under the requirements of T.CA,
§&3~53—I01 et. seq. as follows;
1. All petroleum underground storage tanks that are actively storing petroleum;
2. Ail petroleum underground storage tanks that arc reported as in service on July 1, 1989; and
*
3. All petroleum underground storage tanks taken temporarily out of service after June 30r 1988
and have not been properly closed.
(b) Rule 1200—1—15—J1 shall be effective December 8, 1989 through June 30, 1990,
(3) Annual Petroleum Underground Storage Tknk Fees
(a) Any person required to pay a fee under this rule shall submit the fee in the specified amount, with
checks made payable to the Department of HeaJth and Environment/Underground Storage Tknk Divi-
sion for deposit in the State Treasury.
(b) Any person who is an owner of a petroleum underground storage tank subject to annual fees shall
pay the required annual fee unless a notarized agreement signed by the owner and the operator of
petroleum underground storage tanks stipulates that the operator shall pay the annual fee. A new agree-
ment must be submitted annually if the operator is to pay the annual fee.
(c) The amount of the annual petroleum underground storage tank fee shall be one hundred dollars ($100)
per tank for the July lf 1989 to June 30, 1990 fiscal year.
(d) The amount of the annual administrative service fee for agencies and functions of the United States
Government having sovereign immunity shall be twenty five dollars ($25.00) per tank for the July 1,
1989 to June 30, 1990 fiscal yean Agencies and functions of the United States Government are not
eligible for benefit or financial assistance from the Tfcnnessee Petroleum Underground Storage Tknk
Fund.
(4) Use of the Fee! The petroleum underground storage tank fees shall be deposited into the Petroleum
Underground Storage Tknk Fund and shall be used as specified in the Tennessee Petroleum Underground
Storage Tknk Act.
The use of the fund includes, but is not limited to the following:
(a) The fund shall provide for cieanup of contamination caused by leaking petroleum underground storage
tanks whose owners and/or operators have paid the required petroleum underground storage tank fee;
The fund shall be responsible for cleanup costs above the entry level to the fund in an amount not
to exceed one million dollars ($1,000,000). For the period between July I," 1989 and April 30, 1990,
the initial owner and/or operator financial responsibility requirements for cleanup shall be fifty thou-
sand dollars ($50,000). The fund shall be responsible for cleanup of contamination due to leaking
petroleum underground storage tanks on a per site per occurence basis.
August* 1991 (Revised)
84.284
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER 1200—1—IS
15—.11, continued)
The fund shall provide coverage for third-party claims involving bodily injury and/or property damage
caused by leaking petroleum underground storage tanks whose owners and/or operators have paid
the required petroleum underground storage tank fee. The fund shall be responsible for court awards
involving third party claims above the entry level into the fund in an amount not to exceed one million
dollars (51,000,000). For the period between July 1, 1989 and April 30,1990, the initial owner and/or
operator financial responsibility requirement for third party claims involving bodily injury or proper-
ty damage shall be one hundred fifty thousand dollars ($150,000). The fund shall be responsible for
third party claims involving bodily injury and/or property damage caused by leaking petroleum
underground storage tanks on a per site per occurrence basis.
(5) Failure to Pay the Animal Petroleum Underground Storage Tank Fee
(a) Any petroleum underground storage tank owner or operator who fails to pay the lawfully levied
petroleum underground storage tank fee on or before the due date shall be assessed a monthly penalty
of 5 percent of the amount due, which shall accrue on the first day of delinquency and be added thereto
Thereafter, on the last day of each month during which any part of any fee cr any prior accrued penal-
ty remains unpaid, an additional 5 percent (5 °ft) of the then unpaid balance shall accrue and be added
thereto.
(b) The commissioner may proceed with action described in the Tfcnnessee Pctroieum Underground Storage
Tank Act for failure to pay the lawfully levied petroleum underground storage tank fee,
(6) Petroieum Underground Storage Thnk Annual Fee Notices
(a) Prior to the due date of the annual petroleum underground storage tank fee, the Division shall issue
fee notices to the owners/operators of petroleum underground storage tanks. Fee notices and due dates
shall be staggered using the three grand divisions of the State of Tennessee,
L Tknk fees for underground storage tanks located in the following East Ttnnessee counties shall
be due December 31, 1989:
Johnson, Sullivan, Cartert Washington, Unicoi, Hancock, Hawkins, Greene, Claiborne, Grainger,
Hamblen, Cocke, Scott, Campbell, Union, Anderson, Knox, Jefferson, Sevier, Morgan, Roane^
Loudon, Blount, Bledsoe, Rhea, Meigs, McMinn, Monroe, Grundy, Sequatchie, Hamilton, Bradley,
Polk, Franklin, and Marion.
2* Iknk fees for underground storage tanks located in the following Middle Tfennessee counties shall
be due December 31, 1989:
Stewart, Montgomery, Robertson, Sumner, Macon, Clay, Pickett, Houston, Hickman, Cheatham,
Davidson, Wilson, Ttousdale, Smith, Jackson, Overton, Fentress, Putnam, Cumberland, White,
DcKalb, Van Burcn, Warren, Camion, Rutherford, Williamson, Dickson, Humphreys, Perry,
Wayne, Lewis, Lawrence, Maury, Giles, Marshall, Lincoln, Moore^ Bedford, and Coffee.
3* Tank fees for underground storage tanks located in the following West Tennessee counties shall
be due March 31, 1990:
Lake, Obion, Weakley, Henry, Dyer, Crockett, Gibson, Carroll, Benton, Lauderdale, Tipton, Shelby,
Haywood, Fayette* Madison, Hardeman, Henderson, Chester, McNairy, Decatur, and Hardin.
{Rule 1200-1—
(b)
August, 1991 (Revised)
84.285
-------
UNDERGROUND STORAGE TANK PROGRAM
CHAPTER .1^00—1—15
(Rule 1200—1—15—.J3, continued)
(b). Any owner who brings an underground storage tank system into use after July 1, 1989 shall submit
the current year's underground storage tank fee with the required notice of oustence of such tank
system(s) required in T.CA. §&?—53—106(4).
(7) Unlawful Action. It shaJl be unlawful to put petroleum into underground storage tanks at a facility without
a curreht petroleum underground storage tank facility certificate. This is a violation for the person putting
petroleum into the underground storage tank as well as for the person having product put into the underground
storage tank.
(8) Removal of Certificates. The Division may remove the petroleum underground storage tank facility certificate
from a facility if the owner/operator violates the provisions of T.CA. §68—53—JO! et. seq. Dr any regula-
tions promulgated subsequent to this Act. Such removal must be authorized through issuance of a Commis-
sioner's Order due to violations of the Act or regulations. The owner/operator may appeal the Commis-
sioners Order to the Board.
Authority: T.CA, §§6?—53—101 et seq., 68—53—107, 68—53—113 and 4—5—201 ef. seq. Administrative History:
Original rule filed October 24,1989; effective December 8,1989. Amendment filed December 19, 1989; effective February
2, 1990,; Amendment filed July 3, 1991; effective August 17, 1991.
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