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§ 279.82 40 CFR Ch. I (7–1–05 Edition)
the requirements of parts 257 and 258 of Subpart D—Release Detection
this chapter.
280.40 General requirements for all UST sys-
tems.
§ 279.82 Use as a dust suppressant.
280.41 Requirements for petroleum UST sys-
(a) The use of used oil as a dust sup- tems.
pressant is prohibited, except when 280.42 Requirements for hazardous sub-
such activity takes place in one of the stance UST systems.
280.43 Methods of release detection for
states listed in paragraph (c) of this tanks.
section. 280.44 Methods of release detection for pip-
(b) A State may petition (e.g., as part ing.
of its authorization petition submitted 280.45 Release detection recordkeeping.
to EPA under § 271.5 of this chapter or
by a separate submission) EPA to allow Subpart E—Release Reporting,
the use of used oil (that is not mixed Investigation, and Confirmation
with hazardous waste and does not ex- 280.50 Reporting of suspected releases.
hibit a characteristic other than ignit- 280.51 Investigation due to off-site impacts.
ability) as a dust suppressant. The 280.52 Release investigation and confirma-
State must show that it has a program tion steps.
in place to prevent the use of used oil/ 280.53 Reporting and cleanup of spills and
overfills.
hazardous waste mixtures or used oil
exhibiting a characteristic other than Subpart F—Release Response and Correc-
ignitability as a dust suppressant. In tive Action for UST Systems Containing
addition, such programs must mini- Petroleum or Hazardous Substances
mize the impacts of use as a dust sup-
pressant on the environment. 280.60 General.
280.61 Initial response.
(c) List of States. [Reserved] 280.62 Initial abatement measures and site
check.
PART 280—TECHNICAL STANDARDS 280.63 Initial site characterization.
AND CORRECTIVE ACTION RE- 280.64 Free product removal.
280.65 Investigations for soil and ground-
QUIREMENTS FOR OWNERS AND water cleanup.
OPERATORS OF UNDERGROUND 280.66 Corrective action plan.
STORAGE TANKS (UST) 280.67 Public participation.
Subpart G—Out-of-Service UST Systems
Subpart A—Program Scope and Interim
and Closure
Prohibition
280.70 Temporary closure.
Sec. 280.71 Permanent closure and changes-in-
280.10 Applicability. service.
280.11 Interim prohibition for deferred UST 280.72 Assessing the site at closure or
systems. change-in-service.
280.12 Definitions. 280.73 Applicability to previously closed
UST systems.
Subpart B—UST Systems: Design, 280.74 Closure records.
Construction, Installation and Notification
Subpart H—Financial Responsibility
280.20 Performance standards for new UST
systems. 280.90 Applicability.
280.21 Upgrading of existing UST systems. 280.91 Compliance dates.
280.92 Definition of terms.
280.22 Notification requirements.
280.93 Amount and scope of required fi-
nancial responsibility.
Subpart C—General Operating 280.94 Allowable mechanisms and com-
Requirements binations of mechanisms.
280.95 Financial test of self-insurance.
280.30 Spill and overfill control. 280.96 Guarantee.
280.31 Operation and maintenance of corro- 280.97 Insurance and risk retention group
sion protection. coverage.
280.32 Compatibility. 280.98 Surety bond.
280.33 Repairs allowed. 280.99 Letter of credit.
280.34 Reporting and recordkeeping. 280.100 Use of state-required mechanism.
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Environmental Protection Agency § 280.11
280.101 State fund or other state assurance. (1) Any UST system holding haz-
280.102 Trust fund. ardous wastes listed or identified under
280.103 Standby trust fund. Subtitle C of the Solid Waste Disposal
280.104 Local government bond rating test. Act, or a mixture of such hazardous
280.105 Local government financial test.
waste and other regulated substances.
280.106 Local government guarantee.
280.107 Local government fund.
(2) Any wastewater treatment tank
280.108 Substitution of financial assurance system that is part of a wastewater
mechanisms by owner or operator. treatment facility regulated under sec-
280.109 Cancellation or nonrenewal by a pro- tion 402 or 307(b) of the Clean Water
vider of financial assurance. Act.
280.110 Reporting by owner or operator. (3) Equipment or machinery that
280.111 Recordkeeping. contains regulated substances for oper-
280.112 Drawing on financial assurance ational purposes such as hydraulic lift
mechanisms. tanks and electrical equipment tanks.
280.113 Release from the requirements. (4) Any UST system whose capacity
280.114 Bankruptcy or other incapacity of
owner or operator or provider of finan-
is 110 gallons or less.
cial assurance. (5) Any UST system that contains a
280.115 Replenishment of guarantees, letters de minimis concentration of regulated
of credit, or surety bonds. substances.
280.116 Suspension of enforcement. [Re- (6) Any emergency spill or overflow
served] containment UST system that is expe-
ditiously emptied after use.
Subpart I—Lender Liability (c) Deferrals. Subparts B, C, D, E, and
280.200 Definitions. G do not apply to any of the following
280.210 Participation in management. types of UST systems:
280.220 Ownership of an underground stor- (1) Wastewater treatment tank sys-
age tank or underground storage tank tems;
system or facility or property on which (2) Any UST systems containing ra-
an underground storage tank or under- dioactive material that are regulated
ground storage tank system is located. under the Atomic Energy Act of 1954
280.230 Operating an underground storage
(42 U.S.C. 2011 and following);
tank or underground storage tank sys-
tem. (3) Any UST system that is part of an
emergency generator system at nuclear
APPENDIX I TO PART 280—NOTIFICATION FOR
UNDERGROUND STORAGE TANKS (FORM) power generation facilities regulated
APPENDIX II TO PART 280—LIST OF AGENCIES by the Nuclear Regulatory Commission
DESIGNATED TO RECEIVE NOTIFICATIONS under 10 CFR part 50, appendix A;
APPENDIX III TO PART 280—STATEMENT FOR (4) Airport hydrant fuel distribution
SHIPPING TICKETS AND INVOICES systems; and
AUTHORITY: 42 U.S.C. 6912, 6991, 6991a, 6991b, (5) UST systems with field-con-
6991c, 6991d, 6991e, 6991f, 6991g, 6991h. structed tanks.
(d) Deferrals. Subpart D does not
SOURCE: 53 FR 37194, Sept. 23, 1988, unless
apply to any UST system that stores
otherwise noted.
fuel solely for use by emergency power
generators.
Subpart A—Program Scope and
Interim Prohibition § 280.11 Interim prohibition for de-
ferred UST systems.
§ 280.10 Applicability. (a) No person may install an UST
(a) The requirements of this part system listed in § 280.10(c) for the pur-
apply to all owners and operators of an pose of storing regulated substances
UST system as defined in § 280.12 except unless the UST system (whether of
as otherwise provided in paragraphs single- or double-wall construction):
(b), (c), and (d) of this section. Any (1) Will prevent releases due to corro-
UST system listed in paragraph (c) of sion or structural failure for the oper-
this section must meet the require- ational life of the UST system;
ments of § 280.11. (2) Is cathodically protected against
(b) The following UST systems are corrosion, constructed of noncorrodible
excluded from the requirements of this material, steel clad with a noncorrod-
part: ible material, or designed in a manner
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§ 280.12 40 CFR Ch. I (7–1–05 Edition)
to prevent the release or threatened re- ther galvanic anodes or impressed cur-
lease of any stored substance; and rent.
(3) Is constructed or lined with mate- Cathodic protection tester means a per-
rial that is compatible with the stored son who can demonstrate an under-
substance. standing of the principles and measure-
(b) Notwithstanding paragraph (a) of ments of all common types of cathodic
this section, an UST system without protection systems as applied to buried
corrosion protection may be installed or submerged metal piping and tank
at a site that is determined by a corro- systems. At a minimum, such persons
sion expert not to be corrosive enough must have education and experience in
to cause it to have a release due to cor- soil resistivity, stray current, struc-
rosion during its operating life. Owners ture-to-soil potential, and component
and operators must maintain records electrical isolation measurements of
that demonstrate compliance with the buried metal piping and tank systems.
requirements of this paragraph for the CERCLA means the Comprehensive
remaining life of the tank. Environmental Response, Compensa-
NOTE: The National Association of Corro- tion, and Liability Act of 1980, as
sion Engineers Standard RP–02–85, ‘‘Control amended.
of External Corrosion on Metallic Buried, Compatible means the ability of two
Partially Buried, or Submerged Liquid Stor- or more substances to maintain their
age Systems,’’ may be used as guidance for respective physical and chemical prop-
complying with paragraph (b) of this section. erties upon contact with one another
for the design life of the tank system
§ 280.12 Definitions.
under conditions likely to be encoun-
Aboveground release means any re- tered in the UST.
lease to the surface of the land or to Connected piping means all under-
surface water. This includes, but is not ground piping including valves, elbows,
limited to, releases from the above- joints, flanges, and flexible connectors
ground portion of an UST system and attached to a tank system through
aboveground releases associated with which regulated substances flow. For
overfills and transfer operations as the the purpose of determining how much
regulated substance moves to or from piping is connected to any individual
an UST system. UST system, the piping that joins two
Ancillary equipment means any de- UST systems should be allocated equal-
vices including, but not limited to, ly between them.
such devices as piping, fittings, flanges, Consumptive use with respect to heat-
valves, and pumps used to distribute, ing oil means consumed on the prem-
meter, or control the flow of regulated ises.
substances to and from an UST. Corrosion expert means a person who,
Belowground release means any re- by reason of thorough knowledge of the
lease to the subsurface of the land and physical sciences and the principles of
to ground water. This includes, but is engineering and mathematics acquired
not limited to, releases from the below- by a professional education and related
ground portions of an underground practical experience, is qualified to en-
storage tank system and belowground gage in the practice of corrosion con-
releases associated with overfills and trol on buried or submerged metal pip-
transfer operations as the regulated ing systems and metal tanks. Such a
substance moves to or from an under- person must be accredited or certified
ground storage tank. as being qualified by the National As-
Beneath the surface of the ground sociation of Corrosion Engineers or be
means beneath the ground surface or a registered professional engineer who
otherwise covered with earthen mate- has certification or licensing that in-
rials. cludes education and experience in cor-
Cathodic protection is a technique to rosion control of buried or submerged
prevent corrosion of a metal surface by metal piping systems and metal tanks.
making that surface the cathode of an Dielectric material means a material
electrochemical cell. For example, a that does not conduct direct electrical
tank system can be cathodically pro- current. Dielectric coatings are used to
tected through the application of ei- electrically isolate UST systems from
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Environmental Protection Agency § 280.12
the surrounding soils. Dielectric bush- phase liquid (e.g., liquid not dissolved
ings are used to electrically isolate in water.)
portions of the UST system (e.g., tank Gathering lines means any pipeline,
from piping). equipment, facility, or building used in
Electrical equipment means under- the transportation of oil or gas during
ground equipment that contains dielec- oil or gas production or gathering oper-
tric fluid that is necessary for the oper- ations.
ation of equipment such as trans- Hazardous substance UST system
formers and buried electrical cable. means an underground storage tank
Excavation zone means the volume system that contains a hazardous sub-
containing the tank system and back- stance defined in section 101(14) of the
fill material bounded by the ground Comprehensive Environmental Re-
surface, walls, and floor of the pit and sponse, Compensation and Liability
trenches into which the UST system is Act of 1980 (but not including any sub-
placed at the time of installation. stance regulated as a hazardous waste
Existing tank system means a tank under subtitle C) or any mixture of
system used to contain an accumula- such substances and petroleum, and
tion of regulated substances or for which is not a petroleum UST system.
which installation has commenced on Heating oil means petroleum that is
or before December 22, 1988. Installa- No. 1, No. 2, No. 4—light, No. 4—heavy,
tion is considered to have commenced No. 5—light, No. 5—heavy, and No. 6
if: technical grades of fuel oil; other resid-
(a) The owner or operator has ob- ual fuel oils (including Navy Special
tained all federal, state, and local ap- Fuel Oil and Bunker C); and other fuels
provals or permits necessary to begin when used as substitutes for one of
physical construction of the site or in- these fuel oils. Heating oil is typically
stallation of the tank system; and if, used in the operation of heating equip-
(b)(1) Either a continuous on-site ment, boilers, or furnaces.
physical construction or installation Hydraulic lift tank means a tank hold-
program has begun; or, ing hydraulic fluid for a closed-loop
(2) The owner or operator has entered mechanical system that uses com-
into contractual obligations—which pressed air or hydraulic fluid to oper-
cannot be cancelled or modified with- ate lifts, elevators, and other similar
out substantial loss—for physical con- devices.
struction at the site or installation of Implementing agency means EPA, or,
the tank system to be completed with- in the case of a state with a program
in a reasonable time. approved under section 9004 (or pursu-
Farm tank is a tank located on a ant to a memorandum of agreement
tract of land devoted to the production with EPA), the designated state or
of crops or raising animals, including local agency responsible for carrying
fish, and associated residences and im- out an approved UST program.
provements. A farm tank must be lo- Liquid trap means sumps, well cellars,
cated on the farm property. ‘‘Farm’’ in- and other traps used in association
cludes fish hatcheries, rangeland and with oil and gas production, gathering,
nurseries with growing operations. and extraction operations (including
Flow-through process tank is a tank gas production plants), for the purpose
that forms an integral part of a produc- of collecting oil, water, and other liq-
tion process through which there is a uids. These liquid traps may tempo-
steady, variable, recurring, or inter- rarily collect liquids for subsequent
mittent flow of materials during the disposition or reinjection into a pro-
operation of the process. Flow-through duction or pipeline stream, or may col-
process tanks do not include tanks lect and separate liquids from a gas
used for the storage of materials prior stream.
to their introduction into the produc- Maintenance means the normal oper-
tion process or for the storage of fin- ational upkeep to prevent an under-
ished products or by-products from the ground storage tank system from re-
production process. leasing product.
Free product refers to a regulated sub- Motor fuel means petroleum or a pe-
stance that is present as a non-aqueous troleum-based substance that is motor
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§ 280.12 40 CFR Ch. I (7–1–05 Edition)
gasoline, aviation gasoline, No. 1 or No. Pipe or Piping means a hollow cyl-
2 diesel fuel, or any grade of gasohol, inder or tubular conduit that is con-
and is typically used in the operation structed of non-earthen materials.
of a motor engine. Pipeline facilities (including gathering
New tank system means a tank system lines) are new and existing pipe rights-
that will be used to contain an accu- of-way and any associated equipment,
mulation of regulated substances and facilities, or buildings.
for which installation has commenced Regulated substance means:
after December 22, 1988. (See also ‘‘Ex- (a) Any substance defined in section
isting Tank System.’’) 101(14) of the Comprehensive Environ-
mental Response, Compensation and
Noncommercial purposes with respect
Liability Act (CERCLA) of 1980 (but
to motor fuel means not for resale.
not including any substance regulated
On the premises where stored with re- as a hazardous waste under subtitle C),
spect to heating oil means UST sys- and
tems located on the same property (b) Petroleum, including crude oil or
where the stored heating oil is used. any fraction thereof that is liquid at
Operational life refers to the period standard conditions of temperature and
beginning when installation of the pressure (60 degrees Fahrenheit and
tank system has commenced until the 14.7 pounds per square inch absolute).
time the tank system is properly The term ‘‘regulated substance’’ in-
closed under Subpart G. cludes but is not limited to petroleum
Operator means any person in control and petroleum-based substances com-
of, or having responsibility for, the prised of a complex blend of hydro-
daily operation of the UST system. carbons derived from crude oil though
Overfill release is a release that occurs processes of separation, conversion, up-
when a tank is filled beyond its capac- grading, and finishing, such as motor
ity, resulting in a discharge of the reg- fuels, jet fuels, distillate fuel oils, re-
ulated substance to the environment. sidual fuel oils, lubricants, petroleum
Owner means: solvents, and used oils.
(a) In the case of an UST system in Release means any spilling, leaking,
use on November 8, 1984, or brought emitting, discharging, escaping, leach-
into use after that date, any person ing or disposing from an UST into
who owns an UST system used for stor- ground water, surface water or sub-
age, use, or dispensing of regulated surface soils.
substances; and Release detection means determining
(b) In the case of any UST system in whether a release of a regulated sub-
use before November 8, 1984, but no stance has occurred from the UST sys-
longer in use on that date, any person tem into the environment or into the
who owned such UST immediately be- interstitial space between the UST sys-
fore the discontinuation of its use. tem and its secondary barrier or sec-
ondary containment around it.
Person means an individual, trust,
Repair means to restore a tank or
firm, joint stock company, Federal UST system component that has
agency, corporation, state, munici- caused a release of product from the
pality, commission, political subdivi- UST system.
sion of a state, or any interstate body. Residential tank is a tank located on
‘‘Person’’ also includes a consortium, a property used primarily for dwelling
joint venture, a commercial entity, and purposes.
the United States Government. SARA means the Superfund Amend-
Petroleum UST system means an un- ments and Reauthorization Act of 1986.
derground storage tank system that Septic tank is a water-tight covered
contains petroleum or a mixture of pe- receptacle designed to receive or proc-
troleum with de minimis quantities of ess, through liquid separation or bio-
other regulated substances. Such sys- logical digestion, the sewage dis-
tems include those containing motor charged from a building sewer. The ef-
fuels, jet fuels, distillate fuel oils, re- fluent from such receptacle is distrib-
sidual fuel oils, lubricants, petroleum uted for disposal through the soil and
solvents, and used oils. settled solids and scum from the tank
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Environmental Protection Agency § 280.20
are pumped out periodically and hauled (2) The Hazardous Liquid Pipeline
to a treatment facility. Safety Act of 1979 (49 U.S.C. App. 2001,
Storm-water or wastewater collection et seq.), or
system means piping, pumps, conduits, (3) Which is an intrastate pipeline fa-
and any other equipment necessary to cility regulated under state laws com-
collect and transport the flow of sur- parable to the provisions of the law re-
face water run-off resulting from pre- ferred to in paragraph (d)(1) or (d)(2) of
cipitation, or domestic, commercial, or this definition;
industrial wastewater to and from re- (e) Surface impoundment, pit, pond,
tention areas or any areas where treat- or lagoon;
ment is designated to occur. The col- (f) Storm-water or wastewater collec-
lection of storm water and wastewater tion system;
does not include treatment except (g) Flow-through process tank;
where incidental to conveyance. (h) Liquid trap or associated gath-
Surface impoundment is a natural ering lines directly related to oil or gas
topographic depression, man-made ex- production and gathering operations;
cavation, or diked area formed pri- or
(i) Storage tank situated in an under-
marily of earthen materials (although
ground area (such as a basement, cel-
it may be lined with man-made mate-
lar, mineworking, drift, shaft, or tun-
rials) that is not an injection well.
nel) if the storage tank is situated
Tank is a stationary device designed upon or above the surface of the floor.
to contain an accumulation of regu-
lated substances and constructed of The term ‘‘underground storage tank’’
non-earthen materials (e.g., concrete, or ‘‘UST’’ does not include any pipes
steel, plastic) that provide structural connected to any tank which is de-
support. scribed in paragraphs (a) through (i) of
this definition.
Underground area means an under-
Upgrade means the addition or ret-
ground room, such as a basement, cel-
rofit of some systems such as cathodic
lar, shaft or vault, providing enough protection, lining, or spill and overfill
space for physical inspection of the ex- controls to improve the ability of an
terior of the tank situated on or above underground storage tank system to
the surface of the floor. prevent the release of product.
Underground release means any below- UST system or Tank system means an
ground release. underground storage tank, connected
Underground storage tank or UST underground piping, underground an-
means any one or combination of tanks cillary equipment, and containment
(including underground pipes con- system, if any.
nected thereto) that is used to contain Wastewater treatment tank means a
an accumulation of regulated sub- tank that is designed to receive and
stances, and the volume of which (in- treat an influent wastewater through
cluding the volume of underground physical, chemical, or biological meth-
pipes connected thereto) is 10 percent ods.
or more beneath the surface of the
ground. This term does not include Subpart B—UST Systems: Design,
any: Construction, Installation and
(a) Farm or residential tank of 1,100 Notification
gallons or less capacity used for stor-
ing motor fuel for noncommercial pur- § 280.20 Performance standards for
poses; new UST systems.
(b) Tank used for storing heating oil In order to prevent releases due to
for consumptive use on the premises structural failure, corrosion, or spills
where stored; and overfills for as long as the UST
(c) Septic tank; system is used to store regulated sub-
(d) Pipeline facility (including gath- stances, all owners and operators of
ering lines) regulated under: new UST systems must meet the fol-
(1) The Natural Gas Pipeline Safety lowing requirements.
Act of 1968 (49 U.S.C. App. 1671, et seq.), (a) Tanks. Each tank must be prop-
or erly designed and constructed, and any
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§ 280.20 40 CFR Ch. I (7–1–05 Edition)
portion underground that routinely Standard 58, ‘‘Standard for Steel Under-
contains product must be protected ground Tanks for Flammable and Combus-
from corrosion, in accordance with a tible Liquids.’’
code of practice developed by a nation- (3) The tank is constructed of a steel-
ally recognized association or inde- fiberglass-reinforced-plastic composite;
pendent testing laboratory as specified or
NOTE: The following industry codes may be
below:
used to comply with paragraph (a)(3) of this
(1) The tank is constructed of fiber- section: Underwriters Laboratories Standard
glass-reinforced plastic; or 1746, ‘‘Corrosion Protection Systems for Un-
NOTE: The following industry codes may be derground Storage Tanks,’’ or the Associa-
used to comply with paragraph (a)(1) of this tion for Composite Tanks ACT–100, ‘‘Speci-
section: Underwriters Laboratories Standard fication for the Fabrication of FRP Clad Un-
1316, ‘‘Standard for Glass- Fiber-Reinforced derground Storage Tanks.’’
Plastic Underground Storage Tanks for Pe- (4) The tank is constructed of metal
troleum Products’’; Underwriter’s Labora- without additional corrosion protec-
tories of Canada CAN4–S615–M83, ‘‘Standard
for Reinforced Plastic Underground Tanks
tion measures provided that:
for Petroleum Products’’; or American Soci- (i) The tank is installed at a site that
ety of Testing and Materials Standard D4021– is determined by a corrosion expert not
86, ‘‘Standard Specification for Glass-Fiber- to be corrosive enough to cause it to
Reinforced Polyester Underground Petro- have a release due to corrosion during
leum Storage Tanks.’’ its operating life; and
(2) The tank is constructed of steel (ii) Owners and operators maintain
and cathodically protected in the fol- records that demonstrate compliance
lowing manner: with the requirements of paragraphs
(i) The tank is coated with a suitable (a)(4)(i) for the remaining life of the
dielectric material; tank; or
(ii) Field-installed cathodic protec- (5) The tank construction and corro-
tion systems are designed by a corro- sion protection are determined by the
sion expert; implementing agency to be designed to
(iii) Impressed current systems are prevent the release or threatened re-
designed to allow determination of cur- lease of any stored regulated substance
rent operating status as required in in a manner that is no less protective
§ 280.31(c); and of human health and the environment
(iv) Cathodic protection systems are than paragraphs (a) (1) through (4) of
operated and maintained in accordance this section.
with § 280.31 or according to guidelines (b) Piping. The piping that routinely
established by the implementing agen- contains regulated substances and is in
cy; or contact with the ground must be prop-
NOTE: The following codes and standards erly designed, constructed, and pro-
may be used to comply with paragraph (a)(2) tected from corrosion in accordance
of this section: with a code of practice developed by a
(A) Steel Tank Institute ‘‘Specification for
STI-P3 System of External Corrosion Protec-
nationally recognized association or
tion of Underground Steel Storage Tanks’’; independent testing laboratory as spec-
(B) Underwriters Laboratories Standard ified below:
1746, ‘‘Corrosion Protection Systems for Un- (1) The piping is constructed of fiber-
derground Storage Tanks’’; glass-reinforced plastic; or
(C) Underwriters Laboratories of Canada NOTE: The following codes and standards
CAN4–S603–M85, ‘‘Standard for Steel Under- may be used to comply with paragraph (b)(1)
ground Tanks for Flammable and Combus- of this section:
tible Liquids,’’ and CAN4–G03.1–M85, (A) Underwriters Laboratories Subject 971,
‘‘Standard for Galvanic Corrosion Protection ‘‘UL Listed Non-Metal Pipe’’;
Systems for Underground Tanks for Flam- (B) Underwriters Laboratories Standard
mable and Combustible Liquids,’’ and CAN4– 567, ‘‘Pipe Connectors for Flammable and
S631–M84, ‘‘Isolating Bushings for Steel Un- Combustible and LP Gas’’;
derground Tanks Protected with Coatings (C) Underwriters Laboratories of Canada
and Galvanic Systems’’; or Guide ULC–107, ‘‘Glass Fiber Reinforced
(D) National Association of Corrosion En- Plastic Pipe and Fittings for Flammable
gineers Standard RP–02–85, ‘‘Control of Ex- Liquids’’; and
ternal Corrosion on Metallic Buried, Par- (D) Underwriters Laboratories of Canada
tially Buried, or Submerged Liquid Storage Standard CAN 4–S633–M81, ‘‘Flexible Under-
Systems,’’ and Underwriters Laboratories ground Hose Connectors.’’
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Environmental Protection Agency § 280.20
(2) The piping is constructed of steel paragraphs (b) (1) through (3) of this
and cathodically protected in the fol- section.
lowing manner: (c) Spill and overfill prevention equip-
(i) The piping is coated with a suit- ment. (1) Except as provided in para-
able dielectric material; graph (c)(2) of this section, to prevent
(ii) Field-installed cathodic protec- spilling and overfilling associated with
tion systems are designed by a corro- product transfer to the UST system,
sion expert; owners and operators must use the fol-
(iii) Impressed current systems are lowing spill and overfill prevention
designed to allow determination of cur- equipment:
rent operating status as required in (i) Spill prevention equipment that
§ 280.31(c); and will prevent release of product to the
(iv) Cathodic protection systems are environment when the transfer hose is
operated and maintained in accordance detached from the fill pipe (for exam-
with § 280.31 or guidelines established ple, a spill catchment basin); and
by the implementing agency; or (ii) Overfill prevention equipment
NOTE: The following codes and standards that will:
may be used to comply with paragraph (b)(2) (A) Automatically shut off flow into
of this section: the tank when the tank is no more
(A) National Fire Protection Association
than 95 percent full; or
Standard 30, ‘‘Flammable and Combustible
Liquids Code’’; (B) Alert the transfer operator when
(B) American Petroleum Institute Publica- the tank is no more than 90 percent
tion 1615, ‘‘Installation of Underground Pe- full by restricting the flow into the
troleum Storage Systems’’; tank or triggering a high-level alarm;
(C) American Petroleum Institute Publica- or
tion 1632, ‘‘Cathodic Protection of Under- (C) Restrict flow 30 minutes prior to
ground Petroleum Storage Tanks and Piping overfilling, alert the operator with a
Systems’’; and
(D) National Association of Corrosion En-
high level alarm one minute before
gineers Standard RP–01–69, ‘‘Control of Ex- overfilling, or automatically shut off
ternal Corrosion on Submerged Metallic Pip- flow into the tank so that none of the
ing Systems.’’ fittings located on top of the tank are
(3) The piping is constructed of metal exposed to product due to overfilling.
without additional corrosion protec- (2) Owners and operators are not re-
tion measures provided that: quired to use the spill and overfill pre-
(i) The piping is installed at a site vention equipment specified in para-
that is determined by a corrosion ex- graph (c)(1) of this section if:
pert to not be corrosive enough to (i) Alternative equipment is used
cause it to have a release due to corro- that is determined by the imple-
sion during its operating life; and menting agency to be no less protec-
(ii) Owners and operators maintain tive of human health and the environ-
records that demonstrate compliance ment than the equipment specified in
with the requirements of paragraph paragraph (c)(1) (i) or (ii) of this sec-
(b)(3)(i) of this section for the remain- tion; or
ing life of the piping; or (ii) The UST system is filled by
NOTE: National Fire Protection Associa- transfers of no more than 25 gallons at
tion Standard 30, ‘‘Flammable and Combus- one time.
tible Liquids Code’’; and National Associa- (d) Installation. All tanks and piping
tion of Corrosion Engineers Standard RP–01– must be properly installed in accord-
69, ‘‘Control of External Corrosion on Sub- ance with a code of practice developed
merged Metallic Piping Systems,’’ may be
used to comply with paragraph (b)(3) of this
by a nationally recognized association
section. or independent testing laboratory and
(4) The piping construction and cor- in accordance with the manufacturer’s
rosion protection are determined by instructions.
the implementing agency to be de- NOTE: Tank and piping system installation
practices and procedures described in the fol-
signed to prevent the release or threat-
lowing codes may be used to comply with the
ened release of any stored regulated requirements of paragraph (d) of this section:
substance in a manner that is no less (i) American Petroleum Institute Publica-
protective of human health and the en- tion 1615, ‘‘Installation of Underground Pe-
vironment than the requirements in troleum Storage System’’; or
471
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§ 280.21 40 CFR Ch. I (7–1–05 Edition)
(ii) Petroleum Equipment Institute Publi- (b) Tank upgrading requirements. Steel
cation RP100, ‘‘Recommended Practices for tanks must be upgraded to meet one of
Installation of Underground Liquid Storage the following requirements in accord-
Systems’’; or
ance with a code of practice developed
(iii) American National Standards Insti-
tute Standard B31.3, ‘‘Petroleum Refinery by a nationally recognized association
Piping,’’ and American National Standards or independent testing laboratory:
Institute Standard B31.4 ‘‘Liquid Petroleum (1) Interior lining. A tank may be up-
Transportation Piping System.’’ graded by internal lining if:
(e) Certification of installation. All (i) The lining is installed in accord-
owners and operators must ensure that ance with the requirements of § 280.33,
one or more of the following methods and
of certification, testing, or inspection (ii) Within 10 years after lining, and
is used to demonstrate compliance every 5 years thereafter, the lined tank
with paragraph (d) of this section by is internally inspected and found to be
providing a certification of compliance structurally sound with the lining still
on the UST notification form in ac- performing in accordance with original
cordance with § 280.22. design specifications.
(1) The installer has been certified by (2) Cathodic protection. A tank may be
the tank and piping manufacturers; or upgraded by cathodic protection if the
(2) The installer has been certified or cathodic protection system meets the
licensed by the implementing agency; requirements of § 280.20(a)(2) (ii), (iii),
or and (iv) and the integrity of the tank is
(3) The installation has been in- ensured using one of the following
spected and certified by a registered methods:
professional engineer with education (i) The tank is internally inspected
and experience in UST system installa- and assessed to ensure that the tank is
tion; or structurally sound and free of corro-
(4) The installation has been in- sion holes prior to installing the ca-
spected and approved by the imple- thodic protection system; or
menting agency; or (ii) The tank has been installed for
(5) All work listed in the manufactur- less than 10 years and is monitored
er’s installation checklists has been monthly for releases in accordance
completed; or with § 280.43 (d) through (h); or
(6) The owner and operator have com- (iii) The tank has been installed for
plied with another method for ensuring less than 10 years and is assessed for
compliance with paragraph (d) of this corrosion holes by conducting two (2)
section that is determined by the im- tightness tests that meet the require-
plementing agency to be no less protec- ments of § 280.43(c). The first tightness
tive of human health and the environ- test must be conducted prior to install-
ment. ing the cathodic protection system.
[53 FR 37194, Sept. 23, 1988, as amended at 56 The second tightness test must be con-
FR 38344, Aug. 13, 1991] ducted between three (3) and six (6)
months following the first operation of
§ 280.21 Upgrading of existing UST the cathodic protection system; or
systems. (iv) The tank is assessed for corro-
(a) Alternatives allowed. Not later sion holes by a method that is deter-
than December 22, 1998, all existing mined by the implementing agency to
UST systems must comply with one of prevent releases in a manner that is no
the following requirements: less protective of human health and
(1) New UST system performance the environment than paragraphs (b)(2)
standards under § 280.20; (i) through (iii) of this section.
(2) The upgrading requirements in (3) Internal lining combined with ca-
paragraphs (b) through (d) of this sec- thodic protection. A tank may be up-
tion; or graded by both internal lining and ca-
(3) Closure requirements under sub- thodic protection if:
part G of this part, including applica- (i) The lining is installed in accord-
ble requirements for corrective action ance with the requirements of § 280.33;
under subpart F. and
472
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Environmental Protection Agency § 280.22
(ii) The cathodic protection system Waste Amendments of 1984, Pub. L. 98–616, on
meets the requirements of § 280.20(a)(2) a form published by EPA on November 8, 1985
(ii), (iii), and (iv). (50 FR 46602) unless notice was given pursu-
ant to section 103(c) of CERCLA. Owners and
NOTE: The following codes and standards
operators who have not complied with the
may be used to comply with this section:
notification requirements may use portions I
(A) American Petroleum Institute Publica-
through VI of the notification form con-
tion 1631, ‘‘Recommended Practice for the In-
tained in appendix I of this part.
terior Lining of Existing Steel Underground
Storage Tanks’’; (b) In states where state law, regula-
(B) National Leak Prevention Association tions, or procedures require owners to
Standard 631, ‘‘Spill Prevention, Minimum 10 use forms that differ from those set
Year Life Extension of Existing Steel Under-
ground Tanks by Lining Without the Addi-
forth in appendix I of this part to fulfill
tion of Cathodic Protection’’; the requirements of this section, the
(C) National Association of Corrosion Engi- state forms may be submitted in lieu of
neers Standard RP–02–85, ‘‘Control of Exter- the forms set forth in Appendix I of
nal Corrosion on Metallic Buried, Partially this part. If a state requires that its
Buried, or Submerged Liquid Storage Sys- form be used in lieu of the form pre-
tems’’; and sented in this regulation, such form
(D) American Petroleum Institute Publica- must meet the requirements of section
tion 1632, ‘‘Cathodic Protection of Under-
ground Petroleum Storage Tanks and Piping 9002.
Systems.’’ (c) Owners required to submit notices
(c) Piping upgrading requirements. under paragraph (a) of this section
Metal piping that routinely contains must provide notices to the appro-
regulated substances and is in contact priate agencies or departments identi-
with the ground must be cathodically fied in appendix II of this part for each
protected in accordance with a code of tank they own. Owners may provide
practice developed by a nationally rec- notice for several tanks using one noti-
ognized association or independent fication form, but owners who own
testing laboratory and must meet the tanks located at more than one place
requirements of § 280.20(b)(2) (ii), (iii), of operation must file a separate notifi-
and (iv). cation form for each separate place of
NOTE: The codes and standards listed in the operation.
note following § 280.20(b)(2) may be used to (d) Notices required to be submitted
comply with this requirement. under paragraph (a) of this section
(d) Spill and overfill prevention equip- must provide all of the information in
ment. To prevent spilling and over- sections I through VI of the prescribed
filling associated with product transfer form (or appropriate state form) for
to the UST system, all existing UST each tank for which notice must be
systems must comply with new UST given. Notices for tanks installed after
system spill and overfill prevention December 22, 1988 must also provide all
equipment requirements specified in of the information in section VII of the
§ 280.20(c). prescribed form (or appropriate state
form) for each tank for which notice
§ 280.22 Notification requirements. must be given.
(a) Any owner who brings an under- (e) All owners and operators of new
ground storage tank system into use UST systems must certify in the notifi-
after May 8, 1986, must within 30 days cation form compliance with the fol-
of bringing such tank into use, submit, lowing requirements:
in the form prescribed in appendix I of (1) Installation of tanks and piping
this part, a notice of existence of such under § 280.20(e);
tank system to the state or local agen- (2) Cathodic protection of steel tanks
cy or department designated in appen- and piping under § 280.20 (a) and (b);
dix II of this part to receive such no- (3) Financial responsibility under
tice. subpart H of this part; and
(4) Release detection under §§ 280.41
NOTE: Owners and operators of UST sys-
tems that were in the ground on or after May
and 280.42.
8, 1986, unless taken out of operation on or (f) All owners and operators of new
before January 1, 1974, were required to no- UST systems must ensure that the in-
tify the designated state or local agency in staller certifies in the notification
accordance with the Hazardous and Solid form that the methods used to install
473
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§ 280.30 40 CFR Ch. I (7–1–05 Edition)
the tanks and piping complies with the inspected for proper operation by a
requirements in § 280.20(d). qualified cathodic protection tester in
(g) Beginning October 24, 1988, any accordance with the following require-
person who sells a tank intended to be ments:
used as an underground storage tank (1) Frequency. All cathodic protection
must notify the purchaser of such tank systems must be tested within 6
of the owner’s notification obligations months of installation and at least
under paragraph (a) of this section. The every 3 years thereafter or according to
form provided in appendix III of this another reasonable time frame estab-
part may be used to comply with this lished by the implementing agency;
requirement. and
(2) Inspection criteria. The criteria
Subpart C—General Operating that are used to determine that ca-
Requirements thodic protection is adequate as re-
quired by this section must be in ac-
§ 280.30 Spill and overfill control. cordance with a code of practice devel-
(a) Owners and operators must ensure oped by a nationally recognized asso-
that releases due to spilling or over- ciation.
filling do not occur. The owner and op- NOTE: National Association of Corrosion
Engineers Standard RP–02–85, ‘‘Control of
erator must ensure that the volume External Corrosion on Metallic Buried, Par-
available in the tank is greater than tially Buried, or Submerged Liquid Storage
the volume of product to be transferred Systems,’’ may be used to comply with para-
to the tank before the transfer is made graph (b)(2) of this section.
and that the transfer operation is mon- (c) UST systems with impressed cur-
itored constantly to prevent overfilling rent cathodic protection systems must
and spilling. also be inspected every 60 days to en-
NOTE: The transfer procedures described in sure the equipment is running prop-
National Fire Protection Association Publi- erly.
cation 385 may be used to comply with para- (d) For UST systems using cathodic
graph (a) of this section. Further guidance protection, records of the operation of
on spill and overfill prevention appears in
American Petroleum Institute Publication
the cathodic protection must be main-
1621, ‘‘Recommended Practice for Bulk Liq- tained (in accordance with § 280.34) to
uid Stock Control at Retail Outlets,’’ and demonstrate compliance with the per-
National Fire Protection Association Stand- formance standards in this section.
ard 30, ‘‘Flammable and Combustible Liquids These records must provide the fol-
Code.’’ lowing:
(b) The owner and operator must re- (1) The results of the last three in-
port, investigate, and clean up any spections required in paragraph (c) of
spills and overfills in accordance with this section; and
§ 280.53. (2) The results of testing from the
last two inspections required in para-
§ 280.31 Operation and maintenance of graph (b) of this section.
corrosion protection.
All owners and operators of steel § 280.32 Compatibility.
UST systems with corrosion protection Owners and operators must use an
must comply with the following re- UST system made of or lined with ma-
quirements to ensure that releases due terials that are compatible with the
to corrosion are prevented for as long substance stored in the UST system.
as the UST system is used to store reg- NOTE: Owners and operators storing alco-
ulated substances: hol blends may use the following codes to
(a) All corrosion protection systems comply with the requirements of this sec-
must be operated and maintained to tion:
continuously provide corrosion protec- (a) American Petroleum Institute Publica-
tion to the metal components of that tion 1626, ‘‘Storing and Handling Ethanol and
Gasoline-Ethanol Blends at Distribution Ter-
portion of the tank and piping that
minals and Service Stations’’; and
routinely contain regulated substances (b) American Petroleum Institute Publica-
and are in contact with the ground. tion 1627, ‘‘Storage and Handling of Gasoline-
(b) All UST systems equipped with Methanol/Cosolvent Blends at Distribution
cathodic protection systems must be Terminals and Service Stations.’’
474
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Environmental Protection Agency § 280.34
§ 280.33 Repairs allowed. agency to be no less protective of
human health and the environment
Owners and operators of UST sys-
than those listed above.
tems must ensure that repairs will pre-
(e) Within 6 months following the re-
vent releases due to structural failure
pair of any cathodically protected UST
or corrosion as long as the UST system
system, the cathodic protection system
is used to store regulated substances.
must be tested in accordance with
The repairs must meet the following
§ 280.31 (b) and (c) to ensure that it is
requirements:
operating properly.
(a) Repairs to UST systems must be
(f) UST system owners and operators
properly conducted in accordance with
must maintain records of each repair
a code of practice developed by a na-
for the remaining operating life of the
tionally recognized association or an
UST system that demonstrate compli-
independent testing laboratory.
ance with the requirements of this sec-
NOTE: The following codes and standards
tion.
may be used to comply with paragraph (a) of
this section: National Fire Protection Asso-
§ 280.34 Reporting and recordkeeping.
ciation Standard 30, ‘‘Flammable and Com-
bustible Liquids Code’’; American Petroleum Owners and operators of UST sys-
Institute Publication 2200, ‘‘Repairing Crude tems must cooperate fully with inspec-
Oil, Liquified Petroleum Gas, and Product tions, monitoring and testing con-
Pipelines’’; American Petroleum Institute ducted by the implementing agency, as
Publication 1631, ‘‘Recommended Practice
well as requests for document submis-
for the Interior Lining of Existing Steel Un-
derground Storage Tanks’’; and National sion, testing, and monitoring by the
Leak Prevention Association Standard 631, owner or operator pursuant to section
‘‘Spill Prevention, Minimum 10 Year Life Ex- 9005 of Subtitle I of the Resource Con-
tension of Existing Steel Underground Tanks servation and Recovery Act, as amend-
by Lining Without the Addition of Cathodic ed.
Protection.’’ (a) Reporting. Owners and operators
(b) Repairs to fiberglass-reinforced must submit the following information
plastic tanks may be made by the man- to the implementing agency:
ufacturer’s authorized representatives (1) Notification for all UST systems
or in accordance with a code of prac- (§ 280.22), which includes certification
tice developed by a nationally recog- of installation for new UST systems
nized association or an independent (§ 280.20(e)),
testing laboratory. (2) Reports of all releases including
(c) Metal pipe sections and fittings suspected releases (§ 280.50), spills and
that have released product as a result overfills (§ 280.53), and confirmed re-
of corrosion or other damage must be leases (§ 280.61);
replaced. Fiberglass pipes and fittings (3) Corrective actions planned or
may be repaired in accordance with the taken including initial abatement
manufacturer’s specifications. measures (§ 280.62), initial site charac-
(d) Repaired tanks and piping must terization (§ 280.63), free product re-
be tightness tested in accordance with moval (§ 280.64), investigation of soil
§ 280.43(c) and § 280.44(b) within 30 days and ground-water cleanup (§ 280.65), and
following the date of the completion of corrective action plan (§ 280.66); and
the repair except as provided in para- (4) A notification before permanent
graphs (d) (1) through (3), of this sec- closure or change-in-service (§ 280.71).
tion: (b) Recordkeeping. Owners and opera-
(1) The repaired tank is internally in- tors must maintain the following infor-
spected in accordance with a code of mation:
practice developed by a nationally rec- (1) A corrosion expert’s analysis of
ognized association or an independent site corrosion potential if corrosion
testing laboratory; or protection equipment is not used
(2) The repaired portion of the UST (§ 280.20(a)(4); § 280.20(b)(3)).
system is monitored monthly for re- (2) Documentation of operation of
leases in accordance with a method corrosion protection equipment
specified in § 280.43 (d) through (h); or (§ 280.31);
(3) Another test method is used that (3) Documentation of UST system re-
is determined by the implementing pairs (§ 280.33(f));
475
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§ 280.40 40 CFR Ch. I (7–1–05 Edition)
(4) Recent compliance with release Method Section Date after which Pd/Pfa
must be demonstrated
detection requirements (§ 280.45); and
(5) Results of the site investigation Manual Tank 280.43(b) December 22, 1990.
conducted at permanent closure Gauging.
(§ 280.74). Tank Tightness 280.43(c) December 22, 1990.
Testing.
(c) Availability and Maintenance of Automatic Tank 280.43(d) December 22, 1990.
Records. Owners and operators must Gauging.
keep the records required either: Automatic Line 280.44(a) September 22, 1991.
Leak Detec-
(1) At the UST site and immediately tors.
available for inspection by the imple- Line Tightness 280.44(b) December 22, 1990.
menting agency; or Testing.
(2) At a readily available alternative
site and be provided for inspection to (b) When a release detection method
the implementing agency upon request. operated in accordance with the per-
(3) In the case of permanent closure formance standards in § 280.43 and
records required under § 280.74, owners § 280.44 indicates a release may have oc-
and operators are also provided with curred, owners and operators must no-
the additional alternative of mailing tify the implementing agency in ac-
closure records to the implementing cordance with subpart E.
agency if they cannot be kept at the (c) Owners and operators of all UST
site or an alternative site as indicated systems must comply with the release
above. detection requirements of this subpart
by December 22 of the year listed in the
Subpart D—Release Detection following table:
§ 280.40 General requirements for all SCHEDULE FOR PHASE-IN OF RELEASE
UST systems. DETECTION
(a) Owners and operators of new and Year when release detection is required (by
Year system
existing UST systems must provide a December 22 of the year indicated)
was in-
method, or combination of methods, of stalled 1989 1990 1991 1992 1993
release detection that:
Before 1965 RD P
(1) Can detect a release from any por- or date
tion of the tank and the connected un- unknown.
derground piping that routinely con- 1965–69 .... P/RD
tains product; 1970–74 .... P RD
1975–79 .... P RD
(2) Is installed, calibrated, operated, 1980–88 .... P RD
and maintained in accordance with the
New tanks (after December 22) immediately upon installa-
manufacturer’s instructions, including tion.
routine maintenance and service
P=Must begin release detection for all pressurized piping as
checks for operability or running con- defined in § 280.41(b)(1).
dition; and RD=Must begin release detection for tanks and suction pip-
ing in accordance with § 280.41(a), § 280.41(b)(2), and
(3) Meets the performance require- § 280.42.
ments in § 280.43 or 280.44, with any per-
formance claims and their manner of (d) Any existing UST system that
determination described in writing by cannot apply a method of release de-
the equipment manufacturer or in- tection that complies with the require-
staller. In addition, methods used after ments of this subpart must complete
the date shown in the following table the closure procedures in subpart G by
corresponding with the specified meth- the date on which release detection is
od except for methods permanently in- required for that UST system under
stalled prior to that date, must be ca- paragraph (c) of this section.
pable of detecting the leak rate or
[53 FR 37194, Sept. 23, 1988, as amended at 55
quantity specified for that method in FR 17753, Apr. 27, 1990; 55 FR 23738, June 12,
the corresponding section of the rule 1990; 56 FR 26, Jan. 2, 1991]
(also shown in the table) with a prob-
ability of detection (Pd) of 0.95 and a
probability of false alarm (Pfa) of 0.05.
476
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Environmental Protection Agency § 280.42
§ 280.41 Requirements for petroleum signed and constructed to meet the fol-
UST systems. lowing standards:
Owners and operators of petroleum (i) The below-grade piping operates
UST systems must provide release de- at less than atmospheric pressure;
(ii) The below-grade piping is sloped
tection for tanks and piping as follows:
so that the contents of the pipe will
(a) Tanks. Tanks must be monitored
drain back into the storage tank if the
at least every 30 days for releases using suction is released;
one of the methods listed in § 280.43 (d) (iii) Only one check valve is included
through (h) except that: in each suction line;
(1) UST systems that meet the per- (iv) The check valve is located di-
formance standards in § 280.20 or rectly below and as close as practical
§ 280.21, and the monthly inventory to the suction pump; and
control requirements in § 280.43 (a) or (v) A method is provided that allows
(b), may use tank tightness testing compliance with paragraphs (b)(2) (ii)–
(conducted in accordance with (iv) of this section to be readily deter-
§ 280.43(c)) at least every 5 years until mined.
December 22, 1998, or until 10 years
after the tank is installed or upgraded § 280.42 Requirements for hazardous
under § 280.21(b), whichever is later; substance UST systems.
(2) UST systems that do not meet the Owners and operators of hazardous
performance standards in § 280.20 or substance UST systems must provide
§ 280.21 may use monthly inventory release detection that meets the fol-
controls (conducted in accordance with lowing requirements:
§ 280.43(a) or (b)) and annual tank tight- (a) Release detection at existing UST
ness testing (conducted in accordance systems must meet the requirements
with § 280.43(c)) until December 22, 1998 for petroleum UST systems in § 280.41.
when the tank must be upgraded under By December 22, 1998, all existing haz-
§ 280.21 or permanently closed under ardous substance UST systems must
§ 280.71; and meet the release detection require-
(3) Tanks with capacity of 550 gallons ments for new systems in paragraph (b)
or less may use weekly tank gauging of this section.
(conducted in accordance with (b) Release detection at new haz-
§ 280.43(b)). ardous substance UST systems must
(b) Piping. Underground piping that meet the following requirements:
routinely contains regulated sub- (1) Secondary containment systems
stances must be monitored for releases must be designed, constructed and in-
in a manner that meets one of the fol- stalled to:
lowing requirements: (i) Contain regulated substances re-
(1) Pressurized piping. Underground leased from the tank system until they
piping that conveys regulated sub- are detected and removed;
stances under pressure must: (ii) Prevent the release of regulated
substances to the environment at any
(i) Be equipped with an automatic
time during the operational life of the
line leak detector conducted in accord-
UST system; and
ance with § 280.44(a); and
(iii) Be checked for evidence of a re-
(ii) Have an annual line tightness lease at least every 30 days.
test conducted in accordance with NOTE. The provisions of 40 CFR 265.193,
§ 280.44(b) or have monthly monitoring Containment and Detection of Releases, may
conducted in accordance with be used to comply with these requirements.
§ 280.44(c). (2) Double-walled tanks must be de-
(2) Suction piping. Underground piping signed, constructed, and installed to:
that conveys regulated substances (i) Contain a release from any por-
under suction must either have a line tion of the inner tank within the outer
tightness test conducted at least every wall; and
3 years and in accordance with (ii) Detect the failure of the inner
§ 280.44(b), or use a monthly monitoring wall.
method conduct in accordance with (3) External liners (including vaults)
§ 280.44(c). No release detection is re- must be designed, constructed, and in-
quired for suction piping that is de- stalled to:
477
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§ 280.43 40 CFR Ch. I (7–1–05 Edition)
(i) Contain 100 percent of the capac- ing in the tank are recorded each oper-
ity of the largest tank within its ating day;
boundary; (2) The equipment used is capable of
(ii) Prevent the interference of pre- measuring the level of product over the
cipitation or ground-water intrusion full range of the tank’s height to the
with the ability to contain or detect a nearest one-eighth of an inch;
release of regulated substances; and (3) The regulated substance inputs
(iii) Surround the tank completely are reconciled with delivery receipts by
(i.e., it is capable of preventing lateral measurement of the tank inventory
as well as vertical migration of regu- volume before and after delivery;
lated substances). (4) Deliveries are made through a
(4) Underground piping must be drop tube that extends to within one
equipped with secondary containment foot of the tank bottom;
that satisfies the requirements of para- (5) Product dispensing is metered and
graph (b)(1) of this section (e.g., trench recorded within the local standards for
liners, jacketing of double-walled pipe). meter calibration or an accuracy of 6
In addition, underground piping that cubic inches for every 5 gallons of prod-
conveys regulated substances under uct withdrawn; and
pressure must be equipped with an (6) The measurement of any water
automatic line leak detector in accord- level in the bottom of the tank is made
ance with § 280.44(a). to the nearest one-eighth of an inch at
(5) Other methods of release detec- least once a month.
tion may be used if owners and opera- NOTE: Practices described in the American
Petroleum Institute Publication 1621, ‘‘Rec-
tors: ommended Practice for Bulk Liquid Stock
(i) Demonstrate to the implementing Control at Retail Outlets,’’ may be used,
agency that an alternate method can where applicable, as guidance in meeting the
detect a release of the stored substance requirements of this paragraph.
as effectively as any of the methods al- (b) Manual tank gauging. Manual
lowed in §§ 280.43(b) through (h) can de- tank gauging must meet the following
tect a release of petroleum; requirements:
(ii) Provide information to the imple- (1) Tank liquid level measurements
menting agency on effective corrective are taken at the beginning and ending
action technologies, health risks, and of a period of at least 36 hours during
chemical and physical properties of the which no liquid is added to or removed
stored substance, and the characteris- from the tank;
tics of the UST site; and, (2) Level measurements are based on
(iii) Obtain approval from the imple- an average of two consecutive stick
menting agency to use the alternate readings at both the beginning and
release detection method before the in- ending of the period;
stallation and operation of the new (3) The equipment used is capable of
UST system. measuring the level of product over the
full range of the tank’s height to the
§ 280.43 Methods of release detection nearest one-eighth of an inch;
for tanks. (4) A leak is suspected and subject to
Each method of release detection for the requirements of subpart E if the
tanks used to meet the requirements of variation between beginning and end-
§ 280.41 must be conducted in accord- ing measurements exceeds the weekly
ance with the following: or monthly standards in the following
table:
(a) Inventory control. Product inven-
tory control (or another test of equiva- Nominal Weekly standard (one Monthly standard (av-
lent performance) must be conducted tank capac- test) erage of four tests)
ity
monthly to detect a release of at least
1.0 percent of flow-through plus 130 gal- 550 gallons 10 gallons ................... 5 gallons.
lons on a monthly basis in the fol- or less.
551–1,000 13 gallons ................... 7 gallons.
lowing manner: gallons.
(1) Inventory volume measurements 1,001– 26 gallons ................... 13 gallons.
for regulated substance inputs, with- 2,000
gallons.
drawals, and the amount still remain-
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Environmental Protection Agency § 280.43
(5) Only tanks of 550 gallons or less interfere with the method used to de-
nominal capacity may use this as the tect releases from the tank;
sole method of release detection. (5) The vapor monitors are designed
Tanks of 551 to 2,000 gallons may use and operated to detect any significant
the method in place of manual inven- increase in concentration above back-
tory control in § 280.43(a). Tanks of ground of the regulated substance
greater than 2,000 gallons nominal ca- stored in the tank system, a compo-
pacity may not use this method to nent or components of that substance,
meet the requirements of this subpart. or a tracer compound placed in the
(c) Tank tightness testing. Tank tight- tank system;
ness testing (or another test of equiva- (6) In the UST excavation zone, the
lent performance) must be capable of site is assessed to ensure compliance
detecting a 0.1 gallon per hour leak with the requirements in paragraphs
rate from any portion of the tank that (e) (1) through (4) of this section and to
routinely contains product while ac- establish the number and positioning
counting for the effects of thermal ex- of monitoring wells that will detect re-
pansion or contraction of the product, leases within the excavation zone from
vapor pockets, tank deformation, evap- any portion of the tank that routinely
oration or condensation, and the loca- contains product; and
tion of the water table. (7) Monitoring wells are clearly
(d) Automatic tank gauging. Equip- marked and secured to avoid unauthor-
ment for automatic tank gauging that ized access and tampering.
tests for the loss of product and con- (f) Ground-water monitoring. Testing
ducts inventory control must meet the or monitoring for liquids on the ground
following requirements: water must meet the following require-
ments:
(1) The automatic product level mon-
(1) The regulated substance stored is
itor test can detect a 0.2 gallon per
immiscible in water and has a specific
hour leak rate from any portion of the
gravity of less than one;
tank that routinely contains product;
(2) Ground water is never more than
and
20 feet from the ground surface and the
(2) Inventory control (or another test
hydraulic conductivity of the soil(s)
of equivalent performance) is con-
between the UST system and the moni-
ducted in accordance with the require-
toring wells or devices is not less than
ments of § 280.43(a).
0.01 cm/sec (e.g., the soil should consist
(e) Vapor monitoring. Testing or moni- of gravels, coarse to medium sands,
toring for vapors within the soil gas of coarse silts or other permeable mate-
the excavation zone must meet the fol- rials);
lowing requirements: (3) The slotted portion of the moni-
(1) The materials used as backfill are toring well casing must be designed to
sufficiently porous (e.g., gravel, sand, prevent migration of natural soils or
crushed rock) to readily allow diffusion filter pack into the well and to allow
of vapors from releases into the exca- entry of regulated substance on the
vation area; water table into the well under both
(2) The stored regulated substance, or high and low ground-water conditions;
a tracer compound placed in the tank (4) Monitoring wells shall be sealed
system, is sufficiently volatile (e.g., from the ground surface to the top of
gasoline) to result in a vapor level that the filter pack;
is detectable by the monitoring devices (5) Monitoring wells or devices inter-
located in the excavation zone in the cept the excavation zone or are as close
event of a release from the tank; to it as is technically feasible;
(3) The measurement of vapors by the (6) The continuous monitoring de-
monitoring device is not rendered inop- vices or manual methods used can de-
erative by the ground water, rainfall, tect the presence of at least one-eighth
or soil moisture or other known inter- of an inch of free product on top of the
ferences so that a release could go un- ground water in the monitoring wells;
detected for more than 30 days; (7) Within and immediately below the
(4) The level of background contami- UST system excavation zone, the site
nation in the excavation zone will not is assessed to ensure compliance with
479
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§ 280.44 40 CFR Ch. I (7–1–05 Edition)
the requirements in paragraphs (f) (1) (v) The site is assessed to ensure that
through (5) of this section and to estab- the secondary barrier is always above
lish the number and positioning of the ground water and not in a 25-year
monitoring wells or devices that will flood plain, unless the barrier and mon-
detect releases from any portion of the itoring designs are for use under such
tank that routinely contains product; conditions; and,
and (vi) Monitoring wells are clearly
(8) Monitoring wells are clearly marked and secured to avoid unauthor-
marked and secured to avoid unauthor- ized access and tampering.
ized access and tampering. (3) For tanks with an internally
(g) Interstitial monitoring. Interstitial fitted liner, an automated device can
monitoring between the UST system detect a release between the inner wall
and a secondary barrier immediately of the tank and the liner, and the liner
around or beneath it may be used, but is compatible with the substance
only if the system is designed, con- stored.
structed and installed to detect a leak (h) Other methods. Any other type of
from any portion of the tank that rou- release detection method, or combina-
tinely contains product and also meets tion of methods, can be used if:
one of the following requirements: (1) It can detect a 0.2 gallon per hour
(1) For double-walled UST systems, leak rate or a release of 150 gallons
the sampling or testing method can de- within a month with a probability of
tect a release through the inner wall in detection of 0.95 and a probability of
any portion of the tank that routinely false alarm of 0.05; or
contains product;
(2) The implementing agency may ap-
NOTE: The provisions outlined in the Steel
prove another method if the owner and
Tank Institute’s ‘‘Standard for Dual Wall
Underground Storage Tanks’’ may be used as operator can demonstrate that the
guidance for aspects of the design and con- method can detect a release as effec-
struction of underground steel double-walled tively as any of the methods allowed in
tanks. paragraphs (c) through (h) of this sec-
(2) For UST systems with a sec- tion. In comparing methods, the imple-
ondary barrier within the excavation menting agency shall consider the size
zone, the sampling or testing method of release that the method can detect
used can detect a release between the and the frequency and reliability with
UST system and the secondary barrier; which it can be detected. If the method
(i) The secondary barrier around or is approved, the owner and operator
beneath the UST system consists of ar- must comply with any conditions im-
tificially constructed material that is posed by the implementing agency on
sufficiently thick and impermeable (at its use to ensure the protection of
least 10¥6 cm/sec for the regulated sub- human health and the environment.
stance stored) to direct a release to the
monitoring point and permit its detec- § 280.44 Methods of release detection
tion; for piping.
(ii) The barrier is compatible with Each method of release detection for
the regulated substance stored so that piping used to meet the requirements
a release from the UST system will not of § 280.41 must be conducted in accord-
cause a deterioration of the barrier al- ance with the following:
lowing a release to pass through unde- (a) Automatic line leak detectors. Meth-
tected; ods which alert the operator to the
(iii) For cathodically protected presence of a leak by restricting or
tanks, the secondary barrier must be shutting off the flow of regulated sub-
installed so that it does not interfere stances through piping or triggering an
with the proper operation of the ca- audible or visual alarm may be used
thodic protection system; only if they detect leaks of 3 gallons
(iv) The ground water, soil moisture, per hour at 10 pounds per square inch
or rainfall will not render the testing line pressure within 1 hour. An annual
or sampling method used inoperative test of the operation of the leak detec-
so that a release could go undetected tor must be conducted in accordance
for more than 30 days; with the manufacturer’s requirements.
480
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Environmental Protection Agency § 280.51
(b) Line tightness testing. A periodic Subpart E—Release Reporting,
test of piping may be conducted only if Investigation, and Confirmation
it can detect a 0.1 gallon per hour leak
rate at one and one-half times the op- § 280.50 Reporting of suspected re-
erating pressure. leases.
(c) Applicable tank methods. Any of Owners and operators of UST sys-
the methods in § 280.43 (e) through (h) tems must report to the implementing
may be used if they are designed to de- agency within 24 hours, or another rea-
tect a release from any portion of the sonable time period specified by the
underground piping that routinely con- implementing agency, and follow the
tains regulated substances. procedures in § 280.52 for any of the fol-
lowing conditions:
§ 280.45 Release detection record- (a) The discovery by owners and oper-
keeping.
ators or others of released regulated
All UST system owners and operators substances at the UST site or in the
must maintain records in accordance surrounding area (such as the presence
with § 280.34 demonstrating compliance of free product or vapors in soils, base-
with all applicable requirements of this ments, sewer and utility lines, and
subpart. These records must include nearby surface water).
the following: (b) Unusual operating conditions ob-
(a) All written performance claims served by owners and operators (such
pertaining to any release detection sys- as the erratic behavior of product dis-
tem used, and the manner in which pensing equipment, the sudden loss of
these claims have been justified or product from the UST system, or an
tested by the equipment manufacturer unexplained presence of water in the
or installer, must be maintained for 5 tank), unless system equipment is
years, or for another reasonable period found to be defective but not leaking,
of time determined by the imple- and is immediately repaired or re-
menting agency, from the date of in- placed; and,
stallation; (c) Monitoring results from a release
(b) The results of any sampling, test- detection method required under
ing, or monitoring must be maintained § 280.41 and § 280.42 that indicate a re-
for at least 1 year, or for another rea- lease may have occurred unless:
sonable period of time determined by (1) The monitoring device is found to
the implementing agency, except that be defective, and is immediately re-
the results of tank tightness testing paired, recalibrated or replaced, and
conducted in accordance with § 280.43(c) additional monitoring does not confirm
must be retained until the next test is the initial result; or
conducted; and (2) In the case of inventory control, a
(c) Written documentation of all cali- second month of data does not confirm
bration, maintenance, and repair of re- the initial result.
lease detection equipment permanently
§ 280.51 Investigation due to off-site
located on-site must be maintained for impacts.
at least one year after the servicing
work is completed, or for another rea- When required by the implementing
sonable time period determined by the agency, owners and operators of UST
implementing agency. Any schedules of systems must follow the procedures in
required calibration and maintenance § 280.52 to determine if the UST system
provided by the release detection is the source of off-site impacts. These
impacts include the discovery of regu-
equipment manufacturer must be re-
lated substances (such as the presence
tained for 5 years from the date of in-
of free product or vapors in soils, base-
stallation.
ments, sewer and utility lines, and
nearby surface and drinking waters)
that has been observed by the imple-
menting agency or brought to its at-
tention by another party.
481
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§ 280.52 40 CFR Ch. I (7–1–05 Edition)
§ 280.52 Release investigation and con- (2) If the test results for the exca-
firmation steps. vation zone or the UST site do not in-
Unless corrective action is initiated dicate that a release has occurred, fur-
in accordance with subpart F, owners ther investigation is not required.
and operators must immediately inves-
§ 280.53 Reporting and cleanup of
tigate and confirm all suspected re-
spills and overfills.
leases of regulated substances requir-
ing reporting under § 280.50 within 7 (a) Owners and operators of UST sys-
days, or another reasonable time pe- tems must contain and immediately
riod specified by the implementing clean up a spill or overfill and report to
agency, using either the following the implementing agency within 24
steps or another procedure approved by hours, or another reasonable time pe-
the implementing agency: riod specified by the implementing
(a) System test. Owners and operators agency, and begin corrective action in
must conduct tests (according to the accordance with subpart F in the fol-
requirements for tightness testing in lowing cases:
§ 280.43(c) and § 280.44(b)) that determine (1) Spill or overfill of petroleum that
whether a leak exists in that portion of results in a release to the environment
the tank that routinely contains prod- that exceeds 25 gallons or another rea-
uct, or the attached delivery piping, or sonable amount specified by the imple-
both. menting agency, or that causes a sheen
(1) Owners and operators must repair, on nearby surface water; and
replace or upgrade the UST system,
(2) Spill or overfill of a hazardous
and begin corrective action in accord-
substance that results in a release to
ance with subpart F if the test results
for the system, tank, or delivery piping the environment that equals or exceeds
indicate that a leak exists. its reportable quantity under CERCLA
(2) Further investigation is not re- (40 CFR part 302).
quired if the test results for the sys- (b) Owners and operators of UST sys-
tem, tank, and delivery piping do not tems must contain and immediately
indicate that a leak exists and if envi- clean up a spill or overfill of petroleum
ronmental contamination is not the that is less than 25 gallons or another
basis for suspecting a release. reasonable amount specified by the im-
(3) Owners and operators must con- plementing agency, and a spill or over-
duct a site check as described in para- fill of a hazardous substance that is
graph (b) of this section if the test re- less than the reportable quantity. If
sults for the system, tank, and delivery cleanup cannot be accomplished within
piping do not indicate that a leak ex- 24 hours, or another reasonable time
ists but environmental contamination period established by the implementing
is the basis for suspecting a release. agency, owners and operators must im-
(b) Site check. Owners and operators mediately notify the implementing
must measure for the presence of a re- agency.
lease where contamination is most NOTE: Pursuant to §§ 302.6 and 355.40, a re-
likely to be present at the UST site. In lease of a hazardous substance equal to or in
selecting sample types, sample loca- excess of its reportable quantity must also
tions, and measurement methods, own- be reported immediately (rather than within
ers and operators must consider the na- 24 hours) to the National Response Center
ture of the stored substance, the type under sections 102 and 103 of the Comprehen-
of initial alarm or cause for suspicion, sive Environmental Response, Compensa-
the type of backfill, the depth of tion, and Liability Act of 1980 and to appro-
priate state and local authorities under Title
ground water, and other factors appro-
III of the Superfund Amendments and Reau-
priate for identifying the presence and
thorization Act of 1986.
source of the release.
(1) If the test results for the exca-
vation zone or the UST site indicate
that a release has occurred, owners and
operators must begin corrective action
in accordance with subpart F;
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Environmental Protection Agency § 280.63
Subpart F—Release Response and surface structures (such as sewers or
Corrective Action for UST Sys- basements);
tems Containing Petroleum or (4) Remedy hazards posed by con-
Hazardous Substances taminated soils that are excavated or
exposed as a result of release confirma-
§ 280.60 General. tion, site investigation, abatement, or
corrective action activities. If these
Owners and operators of petroleum or
remedies include treatment or disposal
hazardous substance UST systems
of soils, the owner and operator must
must, in response to a confirmed re-
comply with applicable State and local
lease from the UST system, comply
with the requirements of this subpart requirements;
except for USTs excluded under (5) Measure for the presence of a re-
§ 280.10(b) and UST systems subject to lease where contamination is most
RCRA Subtitle C corrective action re- likely to be present at the UST site,
quirements under section 3004(u) of the unless the presence and source of the
Resource Conservation and Recovery release have been confirmed in accord-
Act, as amended. ance with the site check required by
§ 280.52(b) or the closure site assess-
§ 280.61 Initial response. ment of § 280.72(a). In selecting sample
Upon confirmation of a release in ac- types, sample locations, and measure-
cordance with § 280.52 or after a release ment methods, the owner and operator
from the UST system is identified in must consider the nature of the stored
any other manner, owners and opera- substance, the type of backfill, depth
tors must perform the following initial to ground water and other factors as
response actions within 24 hours of a appropriate for identifying the pres-
release or within another reasonable ence and source of the release; and
period of time determined by the im- (6) Investigate to determine the pos-
plementing agency: sible presence of free product, and
(a) Report the release to the imple- begin free product removal as soon as
menting agency (e.g., by telephone or practicable and in accordance with
electronic mail); § 280.64.
(b) Take immediate action to prevent (b) Within 20 days after release con-
any further release of the regulated firmation, or within another reason-
substance into the environment; and able period of time determined by the
(c) Identify and mitigate fire, explo- implementing agency, owners and oper-
sion, and vapor hazards. ators must submit a report to the im-
plementing agency summarizing the
§ 280.62 Initial abatement measures initial abatement steps taken under
and site check.
paragraph (a) of this section and any
(a) Unless directed to do otherwise by resulting information or data.
the implementing agency, owners and
operators must perform the following § 280.63 Initial site characterization.
abatement measures:
(a) Unless directed to do otherwise by
(1) Remove as much of the regulated the implementing agency, owners and
substance from the UST system as is
operators must assemble information
necessary to prevent further release to
about the site and the nature of the re-
the environment;
lease, including information gained
(2) Visually inspect any aboveground
while confirming the release or com-
releases or exposed belowground re-
pleting the initial abatement measures
leases and prevent further migration of
the released substance into sur- in §§ 280.60 and 280.61. This information
rounding soils and ground water; must include, but is not necessarily
(3) Continue to monitor and mitigate limited to the following:
any additional fire and safety hazards (1) Data on the nature and estimated
posed by vapors or free product that quantity of release;
have migrated from the UST exca- (2) Data from available sources and/
vation zone and entered into sub- or site investigations concerning the
483
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§ 280.64 40 CFR Ch. I (7–1–05 Edition)
following factors: surrounding popu- submit to the implementing agency,
lations, water quality, use and approxi- within 45 days after confirming a re-
mate locations of wells potentially af- lease, a free product removal report
fected by the release, subsurface soil that provides at least the following in-
conditions, locations of subsurface sew- formation:
ers, climatological conditions, and land (1) The name of the person(s) respon-
use; sible for implementing the free product
(3) Results of the site check required removal measures;
under § 280.62(a)(5); and (2) The estimated quantity, type, and
(4) Results of the free product inves- thickness of free product observed or
tigations required under § 280.62(a)(6), measured in wells, boreholes, and exca-
to be used by owners and operators to vations;
determine whether free product must (3) The type of free product recovery
be recovered under § 280.64. system used;
(b) Within 45 days of release con- (4) Whether any discharge will take
firmation or another reasonable period place on-site or off-site during the re-
of time determined by the imple- covery operation and where this dis-
menting agency, owners and operators charge will be located;
must submit the information collected (5) The type of treatment applied to,
in compliance with paragraph (a) of and the effluent quality expected from,
this section to the implementing agen- any discharge;
cy in a manner that demonstrates its (6) The steps that have been or are
applicability and technical adequacy, being taken to obtain necessary per-
or in a format and according to the mits for any discharge; and
schedule required by the implementing (7) The disposition of the recovered
agency. free product.
§ 280.64 Free product removal. § 280.65 Investigations for soil and
At sites where investigations under ground-water cleanup.
§ 280.62(a)(6) indicate the presence of (a) In order to determine the full ex-
free product, owners and operators tent and location of soils contaminated
must remove free product to the max- by the release and the presence and
imum extent practicable as determined concentrations of dissolved product
by the implementing agency while con- contamination in the ground water,
tinuing, as necessary, any actions ini- owners and operators must conduct in-
tiated under §§ 280.61 through 280.63, or vestigations of the release, the release
preparing for actions required under site, and the surrounding area possibly
§§ 280.65 through 280.66. In meeting the affected by the release if any of the fol-
requirements of this section, owners lowing conditions exist:
and operators must: (1) There is evidence that ground-
(a) Conduct free product removal in a water wells have been affected by the
manner that minimizes the spread of release (e.g., as found during release
contamination into previously confirmation or previous corrective ac-
uncontaminated zones by using recov- tion measures);
ery and disposal techniques appro- (2) Free product is found to need re-
priate to the hydrogeologic conditions covery in compliance with § 280.64;
at the site, and that properly treats, (3) There is evidence that contami-
discharges or disposes of recovery by- nated soils may be in contact with
products in compliance with applicable ground water (e.g., as found during
local, State and Federal regulations; conduct of the initial response meas-
(b) Use abatement of free product mi- ures or investigations required under
gration as a minimum objective for the §§ 280.60 through 280.64); and
design of the free product removal sys- (4) The implementing agency re-
tem; quests an investigation, based on the
(c) Handle any flammable products in potential effects of contaminated soil
a safe and competent manner to pre- or ground water on nearby surface
vent fires or explosions; and water and ground-water resources.
(d) Unless directed to do otherwise by (b) Owners and operators must sub-
the implementing agency, prepare and mit the information collected under
484
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Environmental Protection Agency § 280.67
paragraph (a) of this section as soon as modifications to the plan made by the
practicable or in accordance with a implementing agency. They must mon-
schedule established by the imple- itor, evaluate, and report the results of
menting agency. implementing the plan in accordance
with a schedule and in a format estab-
§ 280.66 Corrective action plan. lished by the implementing agency.
(a) At any point after reviewing the (d) Owners and operators may, in the
information submitted in compliance interest of minimizing environmental
with §§ 280.61 through 280.63, the imple- contamination and promoting more ef-
menting agency may require owners fective cleanup, begin cleanup of soil
and operators to submit additional in- and ground water before the corrective
formation or to develop and submit a action plan is approved provided that
corrective action plan for responding they:
to contaminated soils and ground (1) Notify the implementing agency
water. If a plan is required, owners and of their intention to begin cleanup;
operators must submit the plan accord-
(2) Comply with any conditions im-
ing to a schedule and format estab-
posed by the implementing agency, in-
lished by the implementing agency. Al-
cluding halting cleanup or mitigating
ternatively, owners and operators may,
after fulfilling the requirements of adverse consequences from cleanup ac-
§§ 280.61 through 280.63, choose to sub- tivities; and
mit a corrective action plan for re- (3) Incorporate these self-initiated
sponding to contaminated soil and cleanup measures in the corrective ac-
ground water. In either case, owners tion plan that is submitted to the im-
and operators are responsible for sub- plementing agency for approval.
mitting a plan that provides for ade-
quate protection of human health and § 280.67 Public participation.
the environment as determined by the (a) For each confirmed release that
implementing agency, and must mod- requires a corrective action plan, the
ify their plan as necessary to meet this implementing agency must provide no-
standard. tice to the public by means designed to
(b) The implementing agency will ap- reach those members of the public di-
prove the corrective action plan only rectly affected by the release and the
after ensuring that implementation of planned corrective action. This notice
the plan will adequately protect human may include, but is not limited to, pub-
health, safety, and the environment. In lic notice in local newspapers, block
making this determination, the imple- advertisements, public service an-
menting agency should consider the nouncements, publication in a state
following factors as appropriate: register, letters to individual house-
(1) The physical and chemical charac- holds, or personal contacts by field
teristics of the regulated substance, in- staff.
cluding its toxicity, persistence, and (b) The implementing agency must
potential for migration;
ensure that site release information
(2) The hydrogeologic characteristics
and decisions concerning the corrective
of the facility and the surrounding
action plan are made available to the
area;
public for inspection upon request.
(3) The proximity, quality, and cur-
rent and future uses of nearby surface (c) Before approving a corrective ac-
water and ground water; tion plan, the implementing agency
(4) The potential effects of residual may hold a public meeting to consider
contamination on nearby surface water comments on the proposed corrective
and ground water; action plan if there is sufficient public
(5) An exposure assessment; and interest, or for any other reason.
(6) Any information assembled in (d) The implementing agency must
compliance with this subpart. give public notice that complies with
(c) Upon approval of the corrective paragraph (a) of this section if imple-
action plan or as directed by the imple- mentation of an approved corrective
menting agency, owners and operators action plan does not achieve the estab-
must implement the plan, including lished cleanup levels in the plan and
485
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§ 280.70 40 CFR Ch. I (7–1–05 Edition)
termination of that plan is under con- of this section, or within another rea-
sideration by the implementing agen- sonable time period determined by the
cy. implementing agency, owners and oper-
ators must notify the implementing
Subpart G—Out-of-Service UST agency of their intent to permanently
Systems and Closure close or make the change-in-service,
unless such action is in response to cor-
§ 280.70 Temporary closure. rective action. The required assess-
(a) When an UST system is tempo- ment of the excavation zone under
rarily closed, owners and operators § 280.72 must be performed after noti-
must continue operation and mainte- fying the implementing agency but be-
nance of corrosion protection in ac- fore completion of the permanent clo-
cordance with § 280.31, and any release sure or a change-in-service.
detection in accordance with subpart (b) To permanently close a tank,
D. Subparts E and F must be complied owners and operators must empty and
with if a release is suspected or con- clean it by removing all liquids and ac-
firmed. However, release detection is cumulated sludges. All tanks taken out
not required as long as the UST system of service permanently must also be ei-
is empty. The UST system is empty ther removed from the ground or filled
when all materials have been removed with an inert solid material.
using commonly employed practices so (c) Continued use of an UST system
that no more than 2.5 centimeters (one to store a non-regulated substance is
inch) of residue, or 0.3 percent by considered a change-in-service. Before
weight of the total capacity of the UST a change-in-service, owners and opera-
system, remain in the system. tors must empty and clean the tank by
(b) When an UST system is tempo- removing all liquid and accumulated
rarily closed for 3 months or more, sludge and conduct a site assessment in
owners and operators must also comply accordance with § 280.72.
with the following requirements: NOTE: The following cleaning and closure
(1) Leave vent lines open and func- procedures may be used to comply with this
tioning; and section:
(2) Cap and secure all other lines, (A) American Petroleum Institute Rec-
pumps, manways, and ancillary equip- ommended Practice 1604, ‘‘Removal and Dis-
ment. posal of Used Underground Petroleum Stor-
(c) When an UST system is tempo- age Tanks’’;
rarily closed for more than 12 months, (B) American Petroleum Institute Publica-
owners and operators must perma- tion 2015, ‘‘Cleaning Petroleum Storage
nently close the UST system if it does Tanks’’;
not meet either performance standards (C) American Petroleum Institute Rec-
in § 280.20 for new UST systems or the ommended Practice 1631, ‘‘Interior Lining of
Underground Storage Tanks,’’ may be used
upgrading requirements in § 280.21, ex- as guidance for compliance with this section;
cept that the spill and overfill equip- and
ment requirements do not have to be (D) The National Institute for Occupa-
met. Owners and operators must per- tional Safety and Health ‘‘Criteria for a Rec-
manently close the substandard UST ommended Standard * * * Working in Con-
systems at the end of this 12-month pe- fined Space’’ may be used as guidance for
riod in accordance with §§ 280.71–280.74, conducting safe closure procedures at some
unless the implementing agency pro- hazardous substance tanks.
vides an extension of the 12-month
temporary closure period. Owners and § 280.72 Assessing the site at closure or
change-in-service.
operators must complete a site assess-
ment in accordance with § 280.72 before (a) Before permanent closure or a
such an extension can be applied for. change-in-service is completed, owners
and operators must measure for the
§ 280.71 Permanent closure and presence of a release where contamina-
changes-in-service. tion is most likely to be present at the
(a) At least 30 days before beginning UST site. In selecting sample types,
either permanent closure or a change- sample locations, and measurement
in-service under paragraphs (b) and (c) methods, owners and operators must
486
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Environmental Protection Agency § 280.91
consider the method of closure, the na- § 280.90 Applicability.
ture of the stored substance, the type (a) This subpart applies to owners
of backfill, the depth to ground water, and operators of all petroleum under-
and other factors appropriate for iden- ground storage tank (UST) systems ex-
tifying the presence of a release. The cept as otherwise provided in this sec-
requirements of this section are satis- tion.
fied if one of the external release detec- (b) Owners and operators of petro-
tion methods allowed in § 280.43 (e) and leum UST systems are subject to these
(f) is operating in accordance with the requirements if they are in operation
requirements in § 280.43 at the time of on or after the date for compliance es-
closure, and indicates no release has tablished in § 280.91.
occurred. (c) State and Federal government en-
(b) If contaminated soils, contami- tities whose debts and liabilities are
nated ground water, or free product as the debts and liabilities of a state or
a liquid or vapor is discovered under the United States are exempt from the
paragraph (a) of this section, or by any requirements of this subpart.
other manner, owners and operators (d) The requirements of this subpart
must begin corrective action in accord- do not apply to owners and operators of
ance with subpart F. any UST system described in § 280.10 (b)
or (c).
§ 280.73 Applicability to previously (e) If the owner and operator of a pe-
closed UST systems. troleum underground storage tank are
When directed by the implementing separate persons, only one person is re-
agency, the owner and operator of an quired to demonstrate financial re-
sponsibility; however, both parties are
UST system permanently closed before
liable in event of noncompliance. Re-
December 22, 1988 must assess the exca-
gardless of which party complies, the
vation zone and close the UST system
date set for compliance at a particular
in accordance with this subpart if re-
facility is determined by the character-
leases from the UST may, in the judg-
istics of the owner as set forth in
ment of the implementing agency, pose § 280.91.
a current or potential threat to human
health and the environment. § 280.91 Compliance dates.
§ 280.74 Closure records. Owners of petroleum underground
storage tanks are required to comply
Owners and operators must maintain with the requirements of this subpart
records in accordance with § 280.34 that by the following dates:
are capable of demonstrating compli- (a) All petroleum marketing firms
ance with closure requirements under owning 1,000 or more USTs and all
this subpart. The results of the exca- other UST owners that report a tan-
vation zone assessment required in gible net worth of $20 million or more
§ 280.72 must be maintained for at least to the U.S. Securities and Exchange
3 years after completion of permanent Commission (SEC), Dun and Brad-
closure or change-in-service in one of street, the Energy Information Admin-
the following ways: istration, or the Rural Electrification
(a) By the owners and operators who Administration; January 24, 1989, ex-
took the UST system out of service; cept that compliance with § 280.94(b) is
(b) By the current owners and opera- required by: July 24, 1989.
tors of the UST system site; or (b) All petroleum marketing firms
(c) By mailing these records to the owning 100–999 USTs; October 26, 1989.
implementing agency if they cannot be (c) All petroleum marketing firms
maintained at the closed facility. owning 13–99 USTs at more than one fa-
cility; April 26, 1991.
(d) All petroleum UST owners not de-
Subpart H—Financial scribed in paragraphs (a), (b), or (c) of
Responsibility this section, excluding local govern-
ment entities; December 31, 1993.
SOURCE: 53 FR 43370, Oct. 26, 1988, unless (e) All local government entities (in-
otherwise noted. cluding Indian tribes) not included in
487
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§ 280.92 40 CFR Ch. I (7–1–05 Edition)
paragraph (f) of this section; February the Rural Electrification Administra-
18, 1994. tion.
(f) Indian tribes that own USTs on ‘‘Financial reporting year’’ may thus
Indian lands which meet the applicable comprise a fiscal or a calendar year pe-
technical requirements of this part; riod.
December 31, 1998. Legal defense cost is any expense that
[53 FR 43370, Oct. 26, 1988, as amended at 54 an owner or operator or provider of fi-
FR 5452, Feb. 3, 1989; 55 FR 18567, May 2, 1990; nancial assurance incurs in defending
55 FR 46025, Oct. 31, 1990; 56 FR 66373, Dec. 23, against claims or actions brought,
1991; 59 FR 9607, Feb. 28, 1994] (1) By EPA or a state to require cor-
rective action or to recover the costs of
§ 280.92 Definition of terms. corrective action;
When used in this subpart, the fol- (2) By or on behalf of a third party
lowing terms shall have the meanings for bodily injury or property damage
given below: caused by an accidental release; or
Accidental release means any sudden (3) By any person to enforce the
or nonsudden release of petroleum from terms of a financial assurance mecha-
an underground storage tank that re- nism.
sults in a need for corrective action Local government shall have the
and/or compensation for bodily injury meaning given this term by applicable
or property damage neither expected state law and includes Indian tribes.
nor intended by the tank owner or op- The term is generally intended to in-
erator. clude: (1) Counties, municipalities,
Bodily injury shall have the meaning townships, separately chartered and
given to this term by applicable state operated special districts (including
law; however, this term shall not in- local government public transit sys-
clude those liabilities which, con- tems and redevelopment authorities),
sistent with standard insurance indus- and independent school districts au-
try practices, are excluded from cov- thorized as governmental bodies by
erage in liability insurance policies for state charter or constitution; and (2)
bodily injury. Special districts and independent
Chief Financial Officer, in the case of school districts established by coun-
local government owners and opera- ties, municipalities, townships, and
tors, means the individual with the other general purpose governments to
overall authority and responsibility for provide essential services.
the collection, disbursement, and use Occurrence means an accident, in-
of funds by the local government. cluding continuous or repeated expo-
Controlling interest means direct own- sure to conditions, which results in a
ership of at least 50 percent of the vot- release from an underground storage
ing stock of another entity. tank.
Director of the Implementing Agency NOTE: This definition is intended to assist
in the understanding of these regulations
means the EPA Regional Adminis-
and is not intended either to limit the mean-
trator, or, in the case of a state with a ing of ‘‘occurrence’’ in a way that conflicts
program approved under section 9004, with standard insurance usage or to prevent
the Director of the designated state or the use of other standard insurance terms in
local agency responsible for carrying place of ‘‘occurrence.’’
out an approved UST program. Owner or operator, when the owner or
Financial reporting year means the operator are separate parties, refers to
latest consecutive twelve-month period the party that is obtaining or has ob-
for which any of the following reports tained financial assurances.
used to support a financial test is pre- Petroleum marketing facilities include
pared: all facilities at which petroleum is pro-
(1) a 10–K report submitted to the duced or refined and all facilities from
SEC; which petroleum is sold or transferred
(2) an annual report of tangible net to other petroleum marketers or to the
worth submitted to Dun and Brad- public.
street; or Petroleum marketing firms are all firms
(3) annual reports submitted to the owning petroleum marketing facilities.
Energy Information Administration or Firms owning other types of facilities
488
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Environmental Protection Agency § 280.93
with USTs as well as petroleum mar- Termination under § 280.97(b)(1) and
keting facilities are considered to be § 280.97(b)(2) means only those changes
petroleum marketing firms. that could result in a gap in coverage
Property damage shall have the mean- as where the insured has not obtained
ing given this term by applicable state substitute coverage or has obtained
law. This term shall not include those substitute coverage with a different
liabilities which, consistent with retroactive date than the retroactive
standard insurance industry practices, date of the original policy.
are excluded from coverage in liability
insurance policies for property damage. [53 FR 43370, Oct. 26, 1988, as amended at 54
FR 47081, Nov. 9, 1989; 58 FR 9050, Feb. 18,
However, such exclusions for property
1993]
damage shall not include corrective ac-
tion associated with releases from § 280.93 Amount and scope of required
tanks which are covered by the policy. financial responsibility.
Provider of financial assurance means
an entity that provides financial assur- (a) Owners or operators of petroleum
ance to an owner or operator of an un- underground storage tanks must dem-
derground storage tank through one of onstrate financial responsibility for
the mechanisms listed in §§ 280.95– taking corrective action and for com-
280.103, including a guarantor, insurer, pensating third parties for bodily in-
risk retention group, surety, issuer of a jury and property damage caused by
letter of credit, issuer of a state-re- accidental releases arising from the op-
quired mechanism, or a state. eration of petroleum underground stor-
Substantial business relationship means age tanks in at least the following per-
the extent of a business relationship occurrence amounts:
necessary under applicable state law to (1) For owners or operators of petro-
make a guarantee contract issued inci- leum underground storage tanks that
dent to that relationship valid and en- are located at petroleum marketing fa-
forceable. A guarantee contract is cilities, or that handle an average of
issued ‘‘incident to that relationship’’ more than 10,000 gallons of petroleum
if it arises from and depends on exist- per month based on annual throughput
ing economic transactions between the for the previous calendar year; $1 mil-
guarantor and the owner or operator. lion.
Substantial governmental relationship (2) For all other owners or operators
means the extent of a governmental re- of petroleum underground storage
lationship necessary under applicable tanks; $500,000.
state law to make an added guarantee (b) Owners or operators of petroleum
contract issued incident to that rela- underground storage tanks must dem-
tionship valid and enforceable. A guar- onstrate financial responsibility for
antee contract is issued ‘‘incident to taking corrective action and for com-
that relationship’’ if it arises from a
pensating third parties for bodily in-
clear commonality of interest in the
jury and property damage caused by
event of an UST release such as coter-
accidental releases arising from the op-
minous boundaries, overlapping con-
eration of petroleum underground stor-
stituencies, common ground-water aq-
age tanks in at least the following an-
uifer, or other relationship other than
monetary compensation that provides nual aggregate amounts:
a motivation for the guarantor to pro- (1) For owners or operators of 1 to 100
vide a guarantee. petroleum underground storage tanks,
Tangible net worth means the tangible $1 million; and
assets that remain after deducting li- (2) For owners or operators of 101 or
abilities; such assets do not include in- more petroleum underground storage
tangibles such as goodwill and rights tanks, $2 million.
to patents or royalties. For purposes of (c) For the purposes of paragraphs (b)
this definition, ‘‘assets’’ means all ex- and (f) of this section, only, ‘‘a petro-
isting and all probable future economic leum underground storage tank’’
benefits obtained or controlled by a means a single containment unit and
particular entity as a result of past does not mean combinations of single
transactions. containment units.
489
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§ 280.94 40 CFR Ch. I (7–1–05 Edition)
(d) Except as provided in paragraph § 280.94 Allowable mechanisms and
(e) of this section, if the owner or oper- combinations of mechanisms.
ator uses separate mechanisms or sepa- (a) Subject to the limitations of
rate combinations of mechanisms to paragraphs (b) and (c) of this section,
demonstrate financial responsibility (1) An owner or operator, including a
for: local government owner or operator,
(1) Taking corrective action; may use any one or combination of the
(2) Compensating third parties for mechanisms listed in §§ 280.95 through
bodily injury and property damage 280.103 to demonstrate financial respon-
caused by sudden accidental releases; sibility under this subpart for one or
or more underground storage tanks, and
(3) Compensating third parties for (2) A local government owner or oper-
bodily injury and property damage ator may use any one or combination
caused by nonsudden accidental re- of the mechanisms listed in §§ 280.104
leases, the amount of assurance pro- through 280.107 to demonstrate finan-
vided by each mechanism or combina- cial responsibility under this subpart
tion of mechanisms must be in the full for one or more underground storage
amount specified in paragraphs (a) and tanks.
(b) of this section. (b) An owner or operator may use a
(e) If an owner or operator uses sepa- guarantee under § 280.96 or surety bond
rate mechanisms or separate combina- under § 280.98 to establish financial re-
tions of mechanisms to demonstrate fi- sponsibility only if the Attorney(s)
nancial responsibility for different pe- General of the state(s) in which the un-
troleum underground storage tanks, derground storage tanks are located
the annual aggregate required shall be has (have) submitted a written state-
based on the number of tanks covered ment to the implementing agency that
by each such separate mechanism or a guarantee or surety bond executed as
combination of mechanisms. described in this section is a legally
(f) Owners or operators shall review valid and enforceable obligation in
the amount of aggregate assurance pro- that state.
vided whenever additional petroleum (c) An owner or operator may use
underground storage tanks are ac- self-insurance in combination with a
quired or installed. If the number of pe- guarantee only if, for the purpose of
troleum underground storage tanks for meeting the requirements of the finan-
which assurance must be provided ex- cial test under this rule, the financial
ceeds 100, the owner or operator shall statements of the owner or operator
demonstrate financial responsibility in are not consolidated with the financial
the amount of at least $2 million of an- statements of the guarantor.
nual aggregate assurance by the anni- [53 FR 43370, Oct. 26, 1988, as amended at 58
versary of the date on which the mech- FR 9051, Feb. 18, 1993]
anism demonstrating financial respon-
sibility became effective. If assurance § 280.95 Financial test of self-insur-
is being demonstrated by a combina- ance.
tion of mechanisms, the owner or oper- (a) An owner or operator, and/or
ator shall demonstrate financial re- guarantor, may satisfy the require-
sponsibility in the amount of at least ments of § 280.93 by passing a financial
$2 million of annual aggregate assur- test as specified in this section. To pass
ance by the first-occurring effective the financial test of self-insurance, the
date anniversary of any one of the owner or operator, and/or guarantor
mechanisms combined (other than a fi- must meet the criteria of paragraph (b)
nancial test or guarantee) to provide or (c) of this section based on year-end
assurance. financial statements for the latest
(g) The amounts of assurance re- completed fiscal year.
quired under this section exclude legal (b)(1) The owner or operator, and/or
defense costs. guarantor, must have a tangible net
(h) The required per-occurrence and worth of at least ten times:
annual aggregate coverage amounts do (i) The total of the applicable aggre-
not in any way limit the liability of gate amount required by § 280.93, based
the owner or operator. on the number of underground storage
490
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Environmental Protection Agency § 280.95
tanks for which a financial test is used and/or guarantor, must be examined by
to demonstrate financial responsibility an independent certified public ac-
to EPA under this section or to a state countant and be accompanied by the
implementing agency under a state accountant’s report of the examina-
program approved by EPA under 40 tion.
CFR part 281; (3) The firm’s year-end financial
(ii) The sum of the corrective action statements cannot include an adverse
cost estimates, the current closure and auditor’s opinion, a disclaimer of opin-
post-closure care cost estimates, and ion, or a ‘‘going concern’’ qualification.
amount of liability coverage for which (4) The owner or operator, and/or
a financial test is used to demonstrate guarantor, must have a letter signed
financial responsibility to EPA under by the chief financial officer, worded as
40 CFR 264.101, 264.143, 264.145, 265.143, specified in paragraph (d) of this sec-
165.145, 264.147, and 265.147 or to a state tion.
implementing agency under a state (5) If the financial statements of the
program authorized by EPA under 40 owner or operator, and/or guarantor,
CFR part 271; and are not submitted annually to the U.S.
(iii) The sum of current plugging and Securities and Exchange Commission,
abandonment cost estimates for which the Energy Information Administra-
a financial test is used to demonstrate tion or the Rural Electrification Ad-
financial responsibility to EPA under
ministration, the owner or operator,
40 CFR 144.63 or to a state imple-
and/or guarantor, must obtain a special
menting agency under a state program
report by an independent certified pub-
authorized by EPA under 40 CFR part
lic accountant stating that:
145.
(2) The owner or operator, and/or (i) He has compared the data that the
guarantor, must have a tangible net letter form the chief financial officer
worth of at least $10 million. specifies as having been derived from
(3) The owner or operator, and/or the latest year-end financial state-
guarantor, must have a letter signed ments of the owner or operator, and/or
by the chief financial officer worded as guarantor, with the amounts in such fi-
specified in paragraph (d) of this sec- nancial statements; and
tion. (ii) In connection with that compari-
(4) The owner or operator, and/or son, no matters came to his attention
guarantor, must either: which caused him to believe that the
(i) File financial statements annually specified data should be adjusted.
with the U.S. Securities and Exchange (d) To demonstrate that it meets the
Commission, the Energy Information financial test under paragraph (b) or (c)
Administration, or the Rural Elec- of this section, the chief financial offi-
trification Administration; or cer of the owner or operator, or guar-
(ii) Report annually the firm’s tan- antor, must sign, within 120 days of the
gible net worth to Dun and Bradstreet, close of each financial reporting year,
and Dun and Bradstreet must have as- as defined by the twelve-month period
signed the firm a financial strength for which financial statements used to
rating of 4A or 5A. support the financial test are prepared,
(5) The firm’s year-end financial a letter worded exactly as follows, ex-
statements, if independently audited, cept that the instructions in brackets
cannot include an adverse auditor’s are to be replaced by the relevant in-
opinion, a disclaimer of opinion, or a formation and the brackets deleted:
‘‘going concern’’ qualification.
LETTER FROM CHIEF FINANCIAL OFFICER
(c)(1) The owner or operator, and/or
guarantor must meet the financial test I am the chief financial officer of [insert:
requirements of 40 CFR 264.147(f)(1), name and address of the owner or operator,
substituting the appropriate amounts or guarantor]. This letter is in support of the
use of [insert: ‘‘the financial test of self-in-
specified in § 280.93 (b)(1) and (b)(2) for
surance,’’ and/or ‘‘guarantee’’] to dem-
the ‘‘amount of liability coverage’’ onstrate financial responsibility for [insert:
each time specified in that section. ‘‘taking corrective action’’ and/or ‘‘compen-
(2) The fiscal year-end financial sating third parties for bodily injury and
statements of the owner or operator, property damage’’] caused by [insert:
491
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§ 280.95 40 CFR Ch. I (7–1–05 Edition)
‘‘suddent accidential releases’’ and/or ‘‘non- EPA Regulations Amount
sudden accidential releases’’] in the amount
of at least [insert: dollar amount] per occur- Closure (§§ 264.143 and 265.143) ... $llll
rence and [insert: dollar amount] annual ag- Post-Closure Care (§§ 264.145 and
gregate arising from operating (an) under- 265.145) ................................... $llll
ground storage tank(s).
Liability Coverage (§§ 264.147
Underground storage tanks at the fol-
and 265.147) ............................ $llll
lowing facilities are assured by this financial
test or a financial test under an authorized Corrective Action (§§ 264.101(b)) $llll
State program by this [insert: ‘‘owner or op- Plugging and Abandonment
erator,’’ and/or ‘‘guarantor’’]: [List for each (§ 144.63) ................................. $llll
facility: the name and address of the facility Closure ..................................... $llll
where tanks assured by this financial test Post-Closure Care ..................... $llll
are located, and whether tanks are assured Liabilitly Coverage .................. $llll
by this financial test or a financial test Corrective Action ..................... $llll
under a State program approved under 40 Plugging and Abandonment ..... $llll
CFR part 281. If separate mechanisms or Total .................................. $llll
combinations of mechanisms are being used
to assure any of the tanks at this facility, This [insert: ‘‘owner or operator,’’ or
list each tank assured by this financial test ‘‘guarantor’’] has not received an adverse
or a financial test under a State program au- opinion, a disclaimer of opinion, or a ‘‘going
thorized under 40 CFR part 281 by the tank concern’’ qualification from an independent
identification number provided in the notifi- auditor on his financial statements for the
cation submitted pursuant to 40 CFR 280.22 latest completed fiscal year.
or the corresponding State requirements.] [Fill in the information for Alternative I if
A [insert: ‘‘financial test,’’ and/or ‘‘guar- the criteria of paragraph (b) of § 280.95 are
antee’’] is also used by this [insert: ‘‘owner being used to demonstrate compliance with
or operator,’’ or ‘‘guarantor’’] to dem- the financial test requirements. Fill in the
onstrate evidence of financial responsibility information for Alternative II if the criteria
in the following amounts under other EPA of paragraph (c) of § 280.95 are being used to
regulations or state programs authorized by demonstrate compliance with the financial
EPA under 40 CFR parts 271 and 145: test requirements.]
Alternative I
1. Amount of annual UST aggregate coverage being assured by a
financial test, and/or guarantee $llll
2. Amount of corrective action, closure and post-closure care costs,
liability coverage, and plugging and abandonment costs covered
by a financial test, and/or guarantee $llll
3. Sum of lines 1 and 2 $llll
4. Total tangible assets $llll
5. Total liabilities [if any of the amount reported on line 3 is
included in total liabilities, you may deduct that amount from
this line and add that amount to line 6] $llll
6. Tangible net worth [subtract line 5 from line 4] $llll
Yes No
7. Is line 6 at least $10 million? ll l
8. Is line 6 at least 10 times line 3? ll l
9. Have financial statements for the latest fiscal year been filed
with the Securities and Exchange Commission? ll l
10. Have financial statements for the latest fiscal year been filed
with the Energy Information Administration? ll l
11. Have financial statements for the lastest fiscal year been filed
with the Rural Electrification Administration? ll l
12. Has financial information been provided to Dun and Bradstreet,
and has Dun and Bradstreet provided a financial strength rating
of 4A or 5A? [Answer ‘‘Yes’’ only if both criteria have been met.] ll
Alternative II
1. Amount of annual UST aggregate coverage being assured by a
test, and/or guarantee $llll
2. Amount of corrective action, closure and post-closure care costs,
liability coverage, and plugging and abandonment costs covered
by a financial test, and/or guarantee $llll
3. Sum of lines 1 and 2 $llll
4. Total tangible assets $llll
492
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Environmental Protection Agency § 280.96
Alternative II—Continued
5. Total liabilities [if any of the amount reported on line 3 is
included in total liabilities, you may deduct that amount from
this line and add that amount to line 6] $llll
6. Tangible net worth [subtract line 5 from line 4] $llll
7. Total assets in the U.S. [required only if less than 90 percent of
assets are located in the U.S.] $llll
Yes No
8. Is line 6 at least $10 million? $ll l
9. Is line 6 at least 6 times line 3? ll l
10. Are at least 90 percent of assets located in the U.S.? [If ‘‘No,’’
complete line 11.] ll l
11. Is line 7 at least 6 times line 3? ll l
[Fill in either lines 12–15 or lines 16–18:]
12. Current assets $llll
13. Current liabilities llll
14. Net working capital [subtract line 13 from line 12] lllll
Yes No
15. Is line 14 at least 6 times line 3? ll l
16. Current bond rating of most recent bond issue ll l
17. Name of rating service ll l
18. Date of maturity of bond ll l
19. Have financial statements for the latest fiscal year been filed
with the SEC, the Energy Information Administration, or the
Rural Electrification Administration? ll
[If ‘‘No,’’ please attach a report from an nate coverage within 30 days after noti-
independent certified public accountant cer- fication of such a finding.
tifying that there are no material differences (g) If the owner or operator fails to
between the data as reported in lines 4–18
above and the financial statements for the
obtain alternate assurance within 150
latest fiscal year.] days of finding that he or she no longer
[For both Alternative I and Alternative II meets the requirements of the finan-
complete the certification with this state- cial test based on the year-end finan-
ment.] cial statements, or within 30 days of
I hereby certify that the wording of this notification by the Director of the im-
letter is identical to the wording specified in plementing agency that he or she no
40 CFR part 280.95(d) as such regulations
were constituted on the date shown imme-
longer meets the requirements of the
diately below. financial test, the owner or operator
[Signature] must notify the Director of such fail-
[Name] ure within 10 days.
[Title]
[Date] § 280.96 Guarantee.
(e) If an owner or operator using the (a) An owner or operator may satisfy
test to provide financial assurance the requirements of § 280.93 by obtain-
finds that he or she no longer meets ing a guarantee that conforms to the
the requirements of the financial test requirements of this section. The guar-
based on the year-end financial state- antor must be:
ments, the owner or operator must ob- (1) A firm that (i) possesses a control-
tain alternative coverage within 150 ling interest in the owner or operator;
days of the end of the year for which fi- (ii) possesses a controlling interest in a
nancial statements have been prepared. firm described under paragraph (a)(1)(i)
(f) The Director of the implementing of this section; or, (iii) is controlled
agency may require reports of financial through stock ownership by a common
condition at any time from the owner parent firm that possesses a control-
or operator, and/or guarantor. If the ling interest in the owner or operator;
Director finds, on the basis of such re- or,
ports or other information, that the (2) A firm engaged in a substantial
owner or operator, and/or guarantor, no business relationship with the owner or
longer meets the financial test require- operator and issuing the guarantee as
ments of § 280.95(b) or (c) and (d), the an act incident to that business rela-
owner or operator must obtain alter- tionship.
493
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§ 280.96 40 CFR Ch. I (7–1–05 Edition)
(b) Within 120 days of the close of ber provided in the notification submitted
each financial reporting year the guar- pursuant to 40 CFR 280.22 or the cor-
antor must demonstrate that it meets responding state requirement, and the name
and address of the facility.] This guarantee
the financial test criteria of § 280.95 satisfies 40 CFR part 280, subpart H require-
based on year-end financial statements ments for assuring funding for [insert: ‘‘tak-
for the latest completed financial re- ing corrective action’’ and/or ‘‘compensating
porting year by completing the letter third parties for bodily injury and property
from the chief financial officer de- damage caused by’’ either ‘‘sudden acci-
scribed in § 280.95(d) and must deliver dental releases’’ or ‘‘nonsudden accidental
the letter to the owner or operator. If releases’’ or ‘‘accidental releases’’; if cov-
the guarantor fails to meet the require- erage is different for different tanks or loca-
tions, indicate the type of coverage applica-
ments of the financial test at the end ble to each tank or location] arising from op-
of any financial reporting year, within erating the above-identified underground
120 days of the end of that financial re- storage tank(s) in the amount of [insert dol-
porting year the guarantor shall send lar amount] per occurrence and [insert dollar
by certified mail, before cancellation amount] annual aggregate.
or nonrenewal of the guarantee, notice (3) [Insert appropriate phrase: ‘‘On behalf
to the owner or operator. If the Direc- of our subsidiary’’ (if guarantor is corporate
tor of the implementing agency noti- parent of the owner or operator); ‘‘On behalf
of our affiliate’’ (if guarantor is a related
fies the guarantor that he no longer firm of the owner or operator); or ‘‘Incident
meets the requirements of the finan- to our business relationship with’’ (if guar-
cial test of § 280.95 (b) or (c) and (d), the antor is providing the guarantee as an inci-
guarantor must notify the owner or op- dent to a substantial business relationship
erator within 10 days of receiving such with owner or operator)] [owner or operator],
notification from the Director. In both guarantor guarantees to [implementing
cases, the guarantee will terminate no agency] and to any and all third parties that:
less than 120 days after the date the In the event that [owner or operator] fails
to provide alternative coverage within 60
owner or operator receives the notifica- days after receipt of a notice of cancellation
tion, as evidenced by the return re- of this guarantee and the [Director of the
ceipt. The owner or operator must ob- implementing agency] has determined or
tain alternative coverage as specified suspects that a release has occurred at an
in § 280.110(c). underground storage tank covered by this
(c) The guarantee must be worded as guarantee, the guarantor, upon instructions
follows, except that instructions in from the [Director], shall fund a standby
brackets are to be replaced with the trust fund in accordance with the provisions
of 40 CFR 280.108, in an amount not to exceed
relevant information and the brackets the coverage limits specified above.
deleted: In the event that the [Director] determines
that [owner or operator] has failed to per-
GUARANTEE
form corrective action for releases arising
Guarantee made this [date] by [name of out of the operation of the above-identified
guaranteeing entity], a business entity orga- tank(s) in accordance with 40 CFR part 280,
nized under the laws of the state of [name of subpart F, the guarantor upon written in-
state], herein referred to as guarantor, to structions from the [Director] shall fund a
[the state implementing agency] and to any standby trust in accordance with the provi-
and all third parties, and obligees, on behalf sions of 40 CFR 280.108, in an amount not to
of [owner or operator] of [business address]. exceed the coverage limits specified above.
If [owner or operator] fails to satisfy a
Recitals. judgment or award based on a determination
(1) Guarantor meets or exceeds the finan- of liability for bodily injury or property
cial test criteria of 40 CFR 280.95 (b) or (c) damage to third parties caused by [‘‘sudden’’
and (d) and agrees to comply with the re- and/or ‘‘nonsudden’’] accidential releases
quirements for guarantors as specified in 40 arising from the operation of the above-iden-
CFR 280.96(b). tified tank(s), or fails to pay an amount
(2) [Owner or operator] owns or operates agreed to in settlement of a claim arising
the following underground storage tank(s) from or alleged to arise from such injury or
covered by this guarantee: [List the number damage, the guarantor, upon written in-
of tanks at each facility and the name(s) and structions from the [Director], shall fund a
address(es) of the facility(ies) where the standby trust in accordance with the provi-
tanks are located. If more than one instru- sions of 40 CFR 280.108 to satisfy such judg-
ment is used to assure different tanks at any ment(s), award(s), or settlement agree-
one facility, for each tank covered by this in- ment(s) up to the limits of coverage specified
strument, list the tank identification num- above.
494
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Environmental Protection Agency § 280.97
(4) Guarantor agrees that if, at the end of were constituted on the effective date shown
any fiscal year before cancellation of this immediately below.
guarantee, the guarantor fails to meet the fi- Effective date: lllllllllllllll
nancial test criteria of 40 CFR 280.95 (b) or [Name of guarantor]
(c) and (d), guarantor shall send within 120 [Authorized signature for guarantor]
days of such failure, by certified mail, notice [Name of person signing]
to [owner or operator]. The guarantee will [Title of person signing]
terminate 120 days from the date of receipt Signature of witness or notary:
of the notice by [owner or operator], as evi- llllllllllllllllllllllll
denced by the return receipt.
(5) Guarantor agrees to notify [owner or (d) An owner or operator who uses a
operator] by certified mail of a voluntary or guarantee to satisfy the requirements
involuntary proceeding under Title 11 (Bank- of § 280.93 must establish a standby
ruptcy), U.S. Code naming guarantor as trust fund when the guarantee is ob-
debtor, within 10 days after commencement tained. Under the terms of the guar-
of the proceeding. antee, all amounts paid by the guar-
(6) Guarantor agrees to remain bound antor under the guarantee will be de-
under this guarantee notwithstanding any
posited directly into the standby trust
modification or alteration of any obligation
of [owner or operator] pursuant to 40 CFR fund in accordance with instructions
part 280. from the Director of the implementing
(7) Guarantor agrees to remain bound agency under § 280.108. This standby
under this guarantee for so long as [owner or trust fund must meet the requirements
operator] must comply with the applicable specified in § 280.103.
financial responsibility requirements of 40
CFR part 280, subpart H for the above-identi- § 280.97 Insurance and risk retention
fied tank(s), except that guarantor may can- group coverage.
cel this guarantee by sending notice by cer-
(a) An owner or operator may satisfy
tified mail to [owner or operator], such can-
cellation to become effective no earlier than the requirements of § 290.93 by obtain-
120 days after receipt of such notice by ing liability insurance that conforms
[owner or operator], as evidenced by the re- to the requirements of this section
turn receipt. from a qualified insurer or risk reten-
(8) The guarantor’s obligation does not tion group. Such insurance may be in
apply to any of the following: the form of a separate insurance policy
(a) Any obligation of [insert owner or oper- or an endorsement to an existing insur-
ator] under a workers’ compensation, dis- ance policy.
ability benefits, or unemployment com-
pensation law or other similar law;
(b) Each insurance policy must be
(b) Bodily injury to an employee of [insert amended by an endorsement worded as
owner or operator] arising from, and in the specified in paragraph (b)(1) of this sec-
course of, employment by [insert owner or tion, or evidenced by a certificate of
operator]; insurance worded as specified in para-
(c) Bodily injury or property damage aris- graph (b)(2) of this section, except that
ing from the ownership, maintenance, use, or instructions in brackets must be re-
entrustment to others of any aircraft, motor placed with the relevant information
vehicle, or watercraft; and the brackets deleted:
(d) Property damage to any property
(1) Endorsement
owned, rented, loaded to, in the care, cus-
Name: [name of each covered location]
tody, or control of, or occupied by [insert
llllllllllllllllllllllll
owner or operator] that is not the direct re- llllllllllllllllllllllll
sult of a release from a petroleum under- Address: [address of each covered location]
ground storage tank; llllllllllllllllllllllll
(e) Bodily damage or property damage for llllllllllllllllllllllll
which [insert owner or operator] is obligated Policy Number: lllllllllllllll
to pay damages by reason of the assumption Period of Coverage: [current policy period]
of liability in a contract or agreement other llllllllllllllllllllllll
than a contract or agreement entered into to llllllllllllllllllllllll
meet the requirements of 40 CFR 280.93. Name of [Insurer or Risk Retention Group]:
(9) Guarantor expressly waives notice of llllllllllllllllllllllll
acceptance of this guarantee by [the imple- llllllllllllllllllllllll
menting agency], by any or all third parties, Address of [Insurer or Risk Retention
or by [owner or operator]. Group]:
I hereby certify that the wording of this llllllllllllllllllllllll
guarantee is identical to the wording speci- llllllllllllllllllllllll
fied in 40 CFR 280.96(c) as such regulations Name of Insured: llllllllllllll
495
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§ 280.97 40 CFR Ch. I (7–1–05 Edition)
Address of Insured: lllllllllllll bination of mechanisms as specified in 40
llllllllllllllllllllllll CFR 280.95–280.102.
llllllllllllllllllllllll c. Whenever requested by [a Director of an
implementing agency], the [‘‘Insurer’’ or
ENDORSEMENT: ‘‘Group’’] agrees to furnish to [the Director]
1. This endorsement certifies that the pol- a signed duplicate original of the policy and
icy to which the endorsement is attached all endorsements.
provides liability insurance covering the fol- d. Cancellation or any other termination of
lowing underground storage tanks: the insurance by the [‘‘Insurer’’ or ‘‘Group’’],
[List the number of tanks at each facility except for non-payment of premium or mis-
and the name(s) and address(es) of the fa- representation by the insured, will be effec-
cility(ies) where the tanks are located. If tive only upon written notice and only after
more than one instrument is used to as- the expiration of 60 days after a copy of such
sure different tanks at any one facility, written notice is received by the insured.
for each tank covered by this instru- Cancellation for non-payment of premium or
ment, list the tank identification num- misrepresentation by the insured will be ef-
ber provided in the notification sub- fective only upon written notice and only
mitted pursuant to 40 CFR 280.22, or the after expiration of a minimum of 10 days
corresponding state requirement, and the after a copy of such written notice is re-
name and address of the facility.] ceived by the insured.
for [insert: ‘‘taking corrective action’’ and/or [Insert for claims-made policies:
‘‘compensating third parties for bodily in- e. The insurance covers claims otherwise
jury and property damage caused by’’ either covered by the policy that are reported to
‘‘sudden accidental releases’’ or ‘‘nonsudden the [‘‘Insurer’’ or ‘‘Group’’] within six
accidental releases’’ or ‘‘accidental re- months of the effective date of cancellation
leases’’; in accordance with and subject to or non-renewal of the policy except where
the limits of liability, exclusions, conditions, the new or renewed policy has the same ret-
and other terms of the policy; if coverage is roactive date or a retroactive date earlier
different for different tanks or locations, in- than that of the prior policy, and which arise
dicate the type of coverage applicable to out of any covered occurrence that com-
each tank or location] arising from oper- menced after the policy retroactive date, if
ating the underground storage tank(s) iden- applicable, and prior to such policy renewal
tified above. or termination date. Claims reported during
The limits of liability are [insert the dollar such extended reporting period are subject to
amount of the ‘‘each occurrence’’ and ‘‘an- the terms, conditions, limits, including lim-
nual aggregate’’ limits of the Insurer’s or its of liability, and exclusions of the policy.]
Group’s liability; if the amount of coverage I hereby certify that the wording of this
is different for different types of coverage or instrument is identical to the wording in 40
for different underground storage tanks or CFR 280.97(b)(1) and that the [‘‘Insurer’’ or
locations, indicate the amount of coverage ‘‘Group’’] is [‘‘licensed to transact the busi-
for each type of coverage and/or for each un- ness of insurance or eligible to provide insur-
derground storage tank or location], exclu- ance as an excess or surplus lines insurer in
sive of legal defense costs, which are subject one or more states’’].
to a separate limit under the policy. This [Signature of authorized representative of
coverage is provided under [policy number]. Insurer or Risk Retention Group]
The effective date of said policy is [date]. [Name of person signing]
2. The insurance afforded with respect to [Title of person signing], Authorized Rep-
such occurrences is subject to all of the resentative of [name of Insurer or Risk Re-
terms and conditions of the policy; provided, tention Group]
however, that any provisions inconsistent [Address of Representative]
with subsections (a) through (e) of this Para- (2) Certificate of Insurance
graph 2 are hereby amended to conform with Name: [name of each covered location]
subsections (a) through (e); llllllllllllllllllllllll
a. Bankruptcy or insolvency of the insured llllllllllllllllllllllll
shall not relieve the [‘‘Insurer’’ or ‘‘Group’’] Address: [address of each covered location]
of its obligations under the policy to which llllllllllllllllllllllll
this endorsement is attached. llllllllllllllllllllllll
b. The [‘‘Insurer’’ or ‘‘Group’’] is liable for Policy Number: lllllllllllllll
the payment of amounts within any deduct- Endorsement (if applicable): llllllll
ible applicable to the policy to the provider Period of Coverage: [current policy period]
of corrective action or a damaged third- llllllllllllllllllllllll
party, with a right of reimbursement by the Name of [Insurer or Risk Retention Group]:
insured for any such payment made by the llllllllllllllllllllllll
[‘‘Insurer’’ or ‘‘Group’’]. This provision does llllllllllllllllllllllll
not apply with respect to that amount of any Address of [Insurer or Risk Retention
deductible for which coverage is dem- Group]:
onstrated under another mechanism or com- llllllllllllllllllllllll
496
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Environmental Protection Agency § 280.98
llllllllllllllllllllllll bination of mechanisms as specified in 40
Name of Insured: llllllllllllll CFR 280.95–280.102.
Address of Insured: c. Whenever requested by [a Director of an
llllllllllllllllllllllll implementing agency], the [‘‘Insurer’’ or
llllllllllllllllllllllll ‘‘Group’’] agrees to furnish to [the Director]
llllllllllllllllllllllll a signed duplicate original of the policy and
all endorsements.
Certification:
d. Cancellation or any other termination of
1. [Name of Insurer or Risk Retention the insurance by the [‘‘Insurer’’ or ‘‘Group’’],
Group], [the ‘‘Insurer’’ or ‘‘Group’’], as iden- except for non-payment of premium or mis-
tified above, hereby certifies that it has representation by the insured, will be effec-
issued liability insurance covering the fol- tive only upon written notice and only after
lowing underground storage tank(s): the expiration of 60 days after a copy of such
[List the number of tanks at each facility written notice is received by the insured.
and the name(s) and address(es) of the fa- Cancellation for non-payment of premium or
cility(ies) where the tanks are located. If misrepresentation by the insured will be ef-
more than one instrument is used to as- fective only upon written notice and only
sure different tanks at any one facility, after expiration of a minimum of 10 days
for each tank covered by this instru- after a copy of such written notice is re-
ment, list the tank identification num- ceived by the insured.
ber provided in the notification sub- [Insert for claims-made policies:
mitted pursuant to 40 CFR 280.22, or the e. The insurance covers claims otherwise
corresponding state requirement, and the covered by the policy that are reported to
name and address of the facility.] the [‘‘Insurer’’ or ‘‘Group’’] within six
for [insert: ‘‘taking corrective action’’ and/or months of the effective date of cancellation
‘‘compensating third parties for bodily in- or non-renewal of the policy except where
jury and property damage caused by’’ either the new or renewed policy has the same ret-
‘‘sudden accidental releases’’ or ‘‘nonsudden roactive date or a retroactive date earlier
accidental releases’’ or ‘‘accidental re- than that of the prior policy, and which arise
leases’’; in accordance with and subject to out of any covered occurrence that com-
the limits of liability, exclusions, conditions, menced after the policy retroactive date, if
and other terms of the policy; if coverage is
applicable, and prior to such policy renewal
different for different tanks or locations, in-
or termination date. Claims reported during
dicate the type of coverage applicable to
such extended reporting period are subject to
each tank or location] arising from oper-
the terms, conditions, limits, including lim-
ating the underground storage tank(s) iden-
its of liability, and exclusions of the policy.]
tified above.
The limits of liability are [insert the dollar I hereby certify that the wording of this
amount of the ‘‘each occurrence’’ and ‘‘an- instrument is identical to the wording in 40
nual aggregate’’ limits of the Insurer’s or CFR 280.97(b)(2) and that the [‘‘Insurer’’ or
Group’s liability; if the amount of coverage ‘‘Group’’] is [‘‘licensed to transact the busi-
is different for different types of coverage or ness of insurance, or eligible to provide in-
for different underground storage tanks or surance as an excess or surplus lines insurer,
locations, indicate the amount of coverage in one or more states’’].
for each type of coverage and/or for each un- [Signature of authorized representative of
derground storage tank or location], exclu- Insurer]
sive of legal defense costs, which are subject [Type name]
to a separate limit under the policy. This [Title], Authorized Representative of [name
coverage is provided under [policy number]. of Insurer or Risk Retention Group]
The effective date of said policy is [date]. [Address of Representative]
2. The [‘‘Insurer’’ or ‘‘Group’’] further cer-
tifies the following with respect to the insur- (c) Each insurance policy must be
ance described in Paragraph 1: issued by an insurer or a risk retention
a. Bankruptcy or insolvency of the insured group that, at a minimum, is licensed
shall not relieve the [‘‘Insurer’’ or ‘‘Group’’] to transact the business of insurance or
of its obligations under the policy to which eligible to provide insurance as an ex-
this certificate applies. cess or surplus lines insurer in one or
b. The [‘‘Insurer’’ or ‘‘Group’’] is liable for
more states.
the payment of amounts within any deduct-
ible applicable to the policy to the provider [53 FR 43370, Oct. 26, 1988, as amended at 54
of corrective action or a damaged third- FR 47081, Nov. 9, 1989]
party, with a right of reimbursement by the
insured for any such payment made by the § 280.98 Surety bond.
[‘‘Insurer’’ or ‘‘Group’’]. This provision does
not apply with respect to that amount of any (a) An owner or operator may satisfy
deductible for which coverage is dem- the requirements of § 280.93 by obtain-
onstrated under another mechanism or com- ing a surety bond that conforms to the
497
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§ 280.98 40 CFR Ch. I (7–1–05 Edition)
requirements of this section. The sur- of liability is indicated, the limit of liability
ety company issuing the bond must be shall be the full amount of the penal sums.
among those listed as acceptable sure- Whereas said Principal is required under
ties on federal bonds in the latest Cir- Subtitle I of the Resource Conservation and
Recovery Act (RCRA), as amended, to pro-
cular 570 of the U.S. Department of the vide financial assurance for [insert: ‘‘taking
Treasury. corrective action’’ and/or ‘‘compensating
(b) The surety bond must be worded third parties for bodily injury and property
as follows, except that instructions in damage caused by’’ either ‘‘sudden acci-
brackets must be replaced with the rel- dental releases’’ or ‘‘nonsudden accidental
evant information and the brackets de- releases’’ or ‘‘accidental releases’’; if cov-
leted: erage is different for different tanks or loca-
tions, indicate the type of coverage applica-
PERFORMANCE BOND ble to each tank or location] arising from op-
Date bond executed: lllllllllllll erating the underground storage tanks iden-
Period of coverage: lllllllllllll tified above, and
Principal: [legal name and business address Whereas said Principal shall establish a
of owner or operator] standby trust fund as is required when a sur-
llllllllllllllllllllllll ety bond is used to provide such financial as-
Type of organization: [insert ‘‘individual,’’ surance;
‘‘joint venture,’’ ‘‘partnership,’’ or ‘‘corpora- Now, therefore, the conditions of the obli-
tion’’] gation are such that if the Principal shall
llllllllllllllllllllllll faithfully [‘‘take corrective action, in ac-
State of incorporation (if applicable): cordance with 40 CFR part 280, subpart F and
llllllllllllllllllllllll the Director of the state implementing agen-
Surety(ies): [name(s) and business ad- cy’s instructions for,’’ and/or ‘‘compensate
dress(es)] injured third parties for bodily injury and
llllllllllllllllllllllll property damage caused by’’ either ‘‘sudden’’
Scope of Coverage: [List the number of tanks or ‘‘nonsudden’’ or ‘‘sudden and nonsudden’’]
at each facility and the name(s) and ad- accidental releases arising from operating
dress(es) of the facility(ies) where the tanks the tank(s) indentified above, or if the Prin-
are located. If more than one instrument is cipal shall provide alternate financial assur-
used to assure different tanks at any one fa- ance, as specified in 40 CFR part 280, subpart
cility, for each tank covered by this instru- H, within 120 days after the date the notice
ment, list the tank identification number of cancellation is received by the Principal
provided in the notification submitted pursu- from the Surety(ies), then this obligation
ant to 40 CFR 280.22, or the corresponding shall be null and void; otherwise it is to re-
state requirement, and the name and address main in full force and effect.
of the facility. List the coverage guaranteed Such obligation does not apply to any of
by the bond: ‘‘taking corrective action’’ and/ the following:
or ‘‘compensating third parties for bodily in- (a) Any obligation of [insert owner or oper-
jury and property damage caused by’’ either ator] under a workers’ compensation, dis-
‘‘sudden accidental releases’’ or ‘‘nonsudden ability benefits, or unemployment com-
accidental releases’’ or ‘‘accidental releases’’ pensation law or other similar law;
‘‘arising from operating the underground (b) Bodily injury to an employee of [insert
storage tank’’]. owner or operator] arising from, and in the
Penal sums of bond: course of, employment by [insert owner or
Per occurrence $ llllllllllllll operator];
Annual aggregate $ lllllllllllll (c) Bodily injury or property damage aris-
Surety’s bond number: lllllllllll ing from the ownership, maintenance, use, or
Know All Persons by These Presents, that entrustment to others of any aircraft, motor
we, the Principal and Surety(ies), hereto are vehicle, or watercraft;
firmly bound to [the implementing agency], (d) Property damage to any property
in the above penal sums for the payment of owned, rented, loaned to, in the care, cus-
which we bind ourselves, our heirs, execu- tody, or control of, or occupied by [insert
tors, administrators, successors, and assigns owner or operator] that is not the direct re-
jointly and severally; provided that, where sult of a release from a petroleum under-
the Surety(ies) are corporations acting as co- ground storage tank;
sureties, we, the Sureties, bind ourselves in (e) Bodily injury or property damage for
such sums jointly and severally only for the which [insert owner or operator] is obligated
purpose of allowing a joint action or actions to pay damages by reason of the assumption
against any or all of us, and for all other pur- of liability in a contract or agreement other
poses each Surety binds itself, jointly and than a contract or agreement entered into to
severally with the Principal, for the pay- meet the requirements of 40 CFR 280.93.
ment of such sums only as is set forth oppo- The Surety(ies) shall become liable on this
site the name of such Surety, but if no limit bond obligation only when the Principal has
498
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Environmental Protection Agency § 280.99
failed to fulfill the conditions described [Corporate seal]
above.
Upon notification by [the Director of the Corporate Surety(ies)
implementing agency] that the Principal has [Name and address]
failed to [‘‘take corrective action, in accord- [State of Incorporation: lllll
ance with 40 CFR part 280, subpart F and the [Liability limit: $lllll
Director’s instructions,’’ and/or ‘‘compensate [Signature(s)]
injured third parties’’] as guaranteed by this [Names(s) and title(s)]
bond, the Surety(ies) shall either perform [Corporate seal]
[‘‘corrective action in accordance with 40
[For every co-surety, provide signature(s),
CFR part 280 and the Director’s instruc-
corporate seal, and other information in the
tions,’’ and/or ‘‘third-party liability com-
pensation’’] or place funds in an amount up same manner as for Surety above.]
to the annual aggregate penal sum into the Bond premium: $lllll
standby trust fund as directed by [the Re- (c) Under the terms of the bond, the
gional Administrator or the Director] under
40 CFR 280.108. surety will become liable on the bond
Upon notification by [the Director] that obligation when the owner or operator
the Principal has failed to provide alternate fails to perform as guaranteed by the
financial assurance within 60 days after the bond. In all cases, the surety’s liability
date the notice of cancellation is received by is limited to the per-occurrence and an-
the Principal from the Surety(ies) and that nual aggregate penal sums.
[the Director] has determined or suspects (d) The owner or operator who uses a
that a release has occurred, the Surety(ies)
shall place funds in an amount not exceeding surety bond to satisfy the require-
the annual aggregate penal sum into the ments of § 280.93 must establish a
standby trust fund as directed by [the Direc- standby trust fund when the surety
tor] under 40 CFR 280.108. bond is acquired. Under the terms of
The Surety(ies) hereby waive(s) notifica- the bond, all amounts paid by the sur-
tion of amendments to applicable laws, stat- ety under the bond will be deposited di-
utes, rules, and regulations and agrees that rectly into the standby trust fund in
no such amendment shall in any way allevi-
ate its (their) obligation on this bond.
accordance with instructions from the
The liability of the Surety(ies) shall not be Director under § 280.108. This standby
discharged by any payment or succession of trust fund must meet the requirements
payments hereunder, unless and until such specified in § 280.103.
payment or payments shall amount in the
annual aggregate to the penal sum shown on § 280.99 Letter of credit.
the face of the bond, but in no event shall
the obligation of the Surety(ies) hereunder
(a) An owner or operator may satisfy
exceed the amount of said annual aggregate the requirements of § 280.93 by obtain-
penal sum. ing an irrevocable standby letter of
The Surety(ies) may cancel the bond by credit that conforms to the require-
sending notice of cancellation by certified ments of this section. The issuing in-
mail to the Principal, provided, however, stitution must be an entity that has
that cancellation shall not occur during the the authority to issue letters of credit
120 days beginning on the date of receipt of
the notice of cancellation by the Principal,
in each state where used and whose let-
as evidenced by the return receipt. ter-of-credit operations are regulated
The Principal may terminate this bond by and examined by a federal or state
sending written notice to the Surety(ies). agency.
In Witness Thereof, the Principal and Sur- (b) The letter of credit must be word-
ety(ies) have executed this Bond and have af- ed as follows, except that instructions
fixed their seals on the date set forth above. in brackets are to be replaced with the
The persons whose signatures appear below
hereby certify that they are authorized to
relevant information and the brackets
execute this surety bond on behalf of the deleted:
Principal and Surety(ies) and that the word- IRREVOCABLE STANDBY LETTER OF CREDIT
ing of this surety bond is identical to the
wording specified in 40 CFR 280.98(b) as such [Name and address of issuing institution]
regulations were constituted on the date this [Name and address of Director(s) of state im-
bond was executed. plementing agency(ies)]
Dear Sir or Madam: We hereby establish
Principal our Irrevocable Standby Letter of Credit No.
[Signature(s)] lll in your favor, at the request and for
[Names(s)] the account of [owner or operator name] of
[Title(s)] [address] up to the aggregate amount of [in
499
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§ 280.99 40 CFR Ch. I (7–1–05 Edition)
words] U.S. dollars ($[insert dollar amount]), successive expiration date, unless, at least
available upon presentation [insert, if more 120 days before the curent expiration date,
than one Director of a state implementing we notify [owner or operator] by certified
agency is a beneficiary, ‘‘by any one of you’’] mail that we have decided not to extend this
of letter of credit beyond the current expira-
(1) your sight draft, bearing reference to tion date. In the event that [owner or oper-
this letter of credit, No. lll, and ator] is so notified, any unused portion of
(2) your signed statement reading as fol-
the credit shall be available upon presen-
lows: ‘‘I certify that the amount of the draft
tation of your sight draft for 120 days after
is payable persuant to regulations issued
under authority of Subtitle I of the Resource the date of receipt by [owner or operator], as
Conservation and Recovery Act of 1976, as shown on the signed return receipt.
amended.’’ Whenever this letter of credit is drawn on
This letter of credit may be drawn on to under and in compliance with the terms of
cover [insert: ‘‘taking corrective action’’ this credit, we shall duly honor such draft
and/or ‘‘compensating third parties for bod- upon presentation to us, and we shall deposit
ily injury and property damage caused by’’ the amount of the draft directly into the
either ‘‘sudden accidental releases’’ or ‘‘non- standby trust fund of [owner or operator] in
sudden accidental releases’’ or ‘‘accidental accordance with your instructions.
releases’’] arising from operating the under- We certify that the wording of this letter
ground storage tank(s) identified below in of credit is identical to the wording specified
the amount of [in words] $[insert dollar in 40 CFR 280.99(b) as such regulations were
amount] per occurrence and [in words] constituted on the date shown immediately
$[insert dollar amount] annual aggregate: below.
[List the number of tanks at each facility
[Signature(s) and title(s) of official(s) of
and the name(s) and address(es) of the facil-
ity(ies) where the tanks are located. If more issuing institution]
than one instrument is used to assure dif- [Date]
ferent tanks at any one facility, for each This credit is subject to [insert ‘‘the most
tank covered by this instrument, list the recent edition of the Uniform Customs and
tank identification number provided in the Practice for Documentary Credits, published
notification submitted pursuant to 40 CFR
and copyrighted by the International Cham-
280.22, or the corresponding state require-
ber of Commerce,’’ or ‘‘the Uniform Commer-
ment, and the name and address of the facil-
ity.] cial Code’’].
The letter of credit may not be drawn on to (c) An owner or operator who uses a
cover any of the following: letter of credit to satisfy the require-
(a) Any obligation of [insert owner or oper- ments of § 280.93 must also establish a
ator] under a workers’ compensation, dis- standby trust fund when the letter of
ability benefits, or unemployment com-
credit is acquired. Under the terms of
pensation law or other similar law;
(b) Bodily injury to an employee of [insert the letter of credit, all amounts paid
owner or operator] arising from, and in the pursuant to a draft by the Director of
course of, employment by [insert owner or the implementing agency will be depos-
operator]; ited by the issuing institution directly
(c) Bodily injury or property damage aris- into the standby trust fund in accord-
ing from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor
ance with instructions from the Direc-
vehicle, or watercraft; tor under § 280.108. This standby trust
(d) Property damage to any property fund must meet the requirements spec-
owned, rented, loaned to, in the care, cus- ified in § 280.103.
tody, or control of, or occupied by [insert (d) The letter of credit must be irrev-
owner or operator] that is not the direct re- ocable with a term specified by the
sult of a release from a petroleum under-
ground storage tank; issuing institution. The letter of credit
(e) Bodily injury or property damage for must provide that credit be automati-
which [insert owner or operator] is obligated cally renewed for the same term as the
to pay damages by reason of the assumption original term, unless, at least 120 days
of liability in a contract or agreement other before the current expiration date, the
than a contract or agreement entered into to issuing institution notifies the owner
meet the requirements of 40 CFR 280.93.
or operator by certified mail of its de-
This letter of credit is effective as of [date]
and shall expire on [date], but such expira-
cision not to renew the letter of credit.
tion date shall be automatically extended for Under the terms of the letter of credit,
a period of [at least the length of the origi- the 120 days will begin on the date
nal term] on [expiration date] and on each when the owner or operator receives
500
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Environmental Protection Agency § 280.101
the notice, as evidenced by the return determination, the owners and opera-
receipt. tors using such mechanisms will be
[53 FR 37194, Sept. 23, 1988, as amended at 59
deemed to be in compliance with the
FR 29960, June 10, 1994] requirements of § 280.93 for under-
ground storage tanks located in the
§ 280.100 Use of state-required mecha- state for the amounts and types of
nism. costs covered by such mechanisms.
(a) For underground storage tanks lo- [53 FR 43370, Oct. 26, 1988; 53 FR 51274, Dec.
cated in a state that does not have an 21, 1988]
approved program, and where the state
requires owners or operators of under- § 280.101 State fund or other state as-
ground storage tanks to demonstrate surance.
financial responsibility for taking cor- (a) An owner or operator may satisfy
rective action and/or for compensating the requirements of § 280.93 for under-
third parties for bodily injury and ground storage tanks located in a
property damage, an owner or operator state, where EPA is administering the
may use a state-required financial requirements of this subpart, which
mechanism to meet the requirements assures that monies will be available
of § 280.93 if the Regional Administrator from a state fund or state assurance
determines that the state mechanism program to cover costs up to the limits
is at least equivalent to the financial specified in § 280.93 or otherwise assures
mechanisms specified in this subpart. that such costs will be paid if the Re-
(b) The Regional Administrator will gional Administrator determines that
evaluate the equivalency of a state-re- the state’s assurance is at least equiva-
quired mechanism principally in terms lent to the financial mechanisms speci-
of: certainty of the availability of fied in this subpart.
funds for taking corrective action and/ (b) The Regional Administrator will
or for compensating third parties; the evaluate the equivalency of a state
amount of funds that will be made fund or other state assurance prin-
available; and the types of costs cov- cipally in terms of: Certainty of the
ered. The Regional Administrator may availability of funds for taking correc-
also consider other factors as is nec- tive action and/or for compensating
essary. third parties; the amount of funds that
(c) The state, an owner or operator, will be made available; and the types of
or any other interested party may sub- costs covered. The Regional Adminis-
mit to the Regional Administrator a trator may also consider other factors
written petition requesting that one or as is necessary.
more of the state-required mechanisms (c) The state must submit to the Re-
be considered acceptable for meeting gional Administrator a description of
the requirements of § 280.93. The sub- the state fund or other state assurance
mission must include copies of the ap- to be supplied as financial assurance,
propriate state statutory and regu- along with a list of the classes of un-
latory requirements and must show the derground storage tanks to which the
amount of funds for corrective action funds may be applied. The Regional Ad-
and/or for compensating third parties ministrator may require the state to
assured by the mechanism(s). The Re- submit additional information as is
gional Administrator may require the deemed necessary to make a deter-
petitioner to submit additional infor- mination regarding the acceptability
mation as is deemed necessary to make of the state fund or other state assur-
this determination. ance. Pending the determination by
(d) Any petition under this section the Regional Administrator, the owner
may be submitted on behalf of all of or operator of a covered class of USTs
the state’s underground storage tank will be deemed to be in compliance
owners and operators. with the requirements of § 280.93 for the
(e) The Regional Administrator will amounts and types of costs covered by
notify the petitioner of his determina- the state fund or other state assurance.
tion regarding the mechanism’s accept- (d) The Regional Administrator will
ability in lieu of financial mechanisms notify the state of his determination
specified in this subpart. Pending this regarding the acceptability of the
501
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§ 280.102 40 CFR Ch. I (7–1–05 Edition)
state’s fund or other assurance in lieu (f) Within 60 days after receiving a
of financial mechanisms specified in request from the owner or operator for
this subpart. Within 60 days after the release of funds as specified in para-
Regional Administrator notifies a state graph (d) or (e) of this section, the Di-
that a state fund or other state assur- rector of the implementing agency will
ance is acceptable, the state must pro- instruct the trustee to release to the
vide to each owner or operator for owner or operator such funds as the Di-
which it is assuming financial responsi- rector specifies in writing.
bility a letter or certificate describing
the nature of the state’s assumption of § 280.103 Standby trust fund.
responsibility. The letter or certificate (a) An owner or operator using any
from the state must include, or have one of the mechanisms authorized by
attached to it, the following informa- §§ 280.96, 280.98, or 280.99 must establish
tion: the facility’s name and address a standby trust fund when the mecha-
and the amount of funds for corrective nism is acquired. The trustee of the
action and/or for compensating third standby trust fund must be an entity
parties that is assured by the state. that has the authority to act as a
The owner or operator must maintain trustee and whose trust operations are
this letter or certificate on file as proof regulated and examined by a Federal
of financial responsibility in accord- agency or an agency of the state in
ance with § 280.107(b)(5). which the fund is established.
(b)(1) The standby trust agreement,
§ 280.102 Trust fund. or trust agreement, must be worded as
(a) An owner or operator may satisfy follows, except that instructions in
the requirements of § 280.93 by estab- brackets are to be replaced with the
lishing a trust fund that conforms to relevant information and the brackets
the requirements of this section. The deleted:
trustee must be an entity that has the TRUST AGREEMENT
authority to act as a trustee and whose
trust operations are regulated and ex- Trust agreement, the ‘‘Agreement,’’ en-
tered into as of [date] by and between [name
amined by a federal agency or an agen- of the owner or operator], a [name of state]
cy of the state in which the fund is es- [insert ‘‘corporation,’’ ‘‘partnership,’’ ‘‘asso-
tablished. ciation,’’ or ‘‘proprietorship’’], the ‘‘Grant-
(b) The wording of the trust agree- or,’’ and [name of corporate trustee], [insert
ment must be identical to the wording ‘‘Incorporated in the state of lll’’ or ‘‘a
specified in § 280.103(b)(1), and must be national bank’’], the ‘‘Trustee.’’
accompanied by a formal certification Whereas, the United States Environmental
of acknowledgement as specified in Protection Agency, ‘‘EPA,’’ an agency of the
United States Government, has established
§ 280.103(b)(2). certain regulations applicable to the Grant-
(c) The trust fund, when established, or, requiring that an owner or operator of an
must be funded for the full required underground storage tank shall provide as-
amount of coverage, or funded for part surance that funds will be available when
of the required amount of coverage and needed for corrective action and third-party
used in combination with other mecha- compensation for bodily injury and property
nism(s) that provide the remaining re- damage caused by sudden and nonsudden ac-
quired coverage. cidental releases arising from the operation
of the underground storage tank. The at-
(d) If the value of the trust fund is
tached Schedule A lists the number of tanks
greater than the required amount of at each facility and the name(s) and ad-
coverage, the owner or operator may dress(es) of the facility(ies) where the tanks
submit a written request to the Direc- are located that are covered by the stand-
tor of the implementing agency for re- point trust agreement.
lease of the excess. [Whereas, the Grantor has elected to estab-
(e) If other financial assurance as lish [insert either ‘‘a guarantee,’’ ‘‘surety
specified in this subpart is substituted bond,’’ or ‘‘letter of credit’’] to provide all or
part of such financial assurance for the un-
for all or part of the trust fund, the
derground storage tanks identified herein
owner or operator may submit a writ- and is required to establish a standby trust
ten request to the Director of the im- fund able to accept payments from the in-
plementing agency for release of the strument (This paragraph is only applicable
excess. to the standby trust agreement.)];
502
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Environmental Protection Agency § 280.103
Whereas, the Grantor, acting through its the financial assurance mechanism identi-
duly authorized officers, has selected the fied in this Agreement.
Trustee to be the trustee under this agree- The Fund may not be drawn upon to cover
ment, and the Trustee is willing to act as any of the following:
trustee; (a) Any obligation of [insert owner or oper-
Now, therefore, the Grantor and the Trust- ator] under a workers’ compensation, dis-
ee agree as follows: ability benefits, or unemployment com-
pensation law or other similar law;
Section 1. Definitions
(b) Bodily injury to an employee of [insert
As used in this Agreement: owner or operator] arising from, and in the
(a) The term ‘‘Grantor’’ means the owner course of employment by [insert owner or
or operator who enters into this Agreement operator];
and any successors or assigns of the Grantor. (c) Bodily injury or property damage aris-
(b) The term ‘‘Trustee’’ means the Trustee ing from the ownership, maintenance, use, or
who enters into this Agreement and any suc- entrustment to others of any aircraft, motor
cessor Trustee. vehicle, or watercraft;
(d) Property damage to any property
Section 2. Identification of the Financial owned, rented, loaned to, in the care, cus-
Assurance Mechanism tody, or control of, or occupied by [insert
This Agreement pertains to the [identify owner or operator] that is not the direct re-
the financial assurance mechanism, either a sult of a release from a petroleum under-
guarantee, surety bond, or letter of credit, ground storage tank;
from which the standby trust fund is estab- (e) Bodily injury or property damage for
lished to receive payments (This paragraph which [insert owner or operator] is obligated
is only applicable to the standby trust agree- to pay damages by reason of the assumption
ment.)]. of liability in a contract or agreement other
than a contract or agreement entered into to
Section 3. Establishment of Fund meet the requirements of 40 CFR 280.93.
The Trustee shall reimburse the Grantor,
The Grantor and the Trustee hereby estab-
or other persons as specified by [the Direc-
lish a trust fund, the ‘‘Fund,’’ for the benefit
tor], from the Fund for corrective action ex-
of [implementing agency]. The Grantor and
penditures and/or third-party liability
the Trustee intend that no third party have
claims in such amounts as [the Director]
access to the Fund except as herein provided.
shall direct in writing. In addition, the
[The Fund is established initially as a stand-
Trustee shall refund to the Grantor such
by to receive payments and shall not consist
amounts as [the Director] specifies in writ-
of any property.] Payments made by the pro-
ing. Upon refund, such funds shall no longer
vider of financial assurance pursuant to [the
constitute part of the Fund as defined here-
Director of the implementing agency’s] in-
in.
struction are transferred to the Trustee and
are referred to as the Fund, together with all Section 5. Payments Comprising the Fund
earnings and profits thereon, less any pay-
ments or distributions made by the Trustee Payments made to the Trustee for the
pursuant to this Agreement. The Fund shall Fund shall consist of cash and securities ac-
be held by the Trustee, IN TRUST, as herein- ceptable to the Trustee.
after provided. The Trustee shall not be re-
sponsible nor shall it undertake any respon- Section 6. Trustee Management
sibility for the amount or adequacy of, nor The Trustee shall invest and reinvest the
any duty to collect from the Grantor as pro- principal and income of the Fund and keep
vider of financial assurance, any payments the Fund invested as a single fund, without
necessary to discharge any liability of the distinction between principal and income, in
Grantor established by [the state imple- accordance with general investment policies
menting agency] and guidelines which the Grantor may com-
municate in writing to the Trustee from
Section 4. Payment for [‘‘Corrective Action’’
time to time, subject, however, to the provi-
and/or Third-Party Liability Claims’’]
sions of this Section. In investing, rein-
The Trustee shall make payments from the vesting, exchanging, selling, and managing
Fund as [the Director of the implementing the Fund, the Trustee shall discharge his du-
agency] shall direct, in writing, to provide ties with respect to the trust fund solely in
for the payment of the costs of [insert: the interest of the beneficiaries and with the
‘‘taking corrective action’’ and/or compen- care, skill, prudence, and diligence under the
sating third parties for bodily injury and circumstances then prevailing which persons
property damage caused by’’ either ‘‘sudden of prudence, acting in a like capacity and fa-
accidental releases’’ or ‘‘nonsudden acci- miliar with such matters, would use in the
dental releases’’ or ‘‘accidental releases’’] conduct of an enterprise of a like character
arising from operating the tanks covered by and with like aims; except that:
503
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§ 280.103 40 CFR Ch. I (7–1–05 Edition)
(i) Securities or other obligations of the may be merged and held in bulk in the name
Grantor, or any other owner or operator of of the nominee of such depository with other
the tanks, or any of their affiliates as de- securities deposited therein by another per-
fined in the Investment Company Act of 1940, son, or to deposit or arrange for the deposit
as amended, 15 U.S.C. 80a–2(a), shall not be of any securities issued by the United States
acquired or held, unless they are securities Government, or any agency or instrumen-
or other obligations of the federal or a state tality thereof, with a Federal Reserve bank,
government; but the books and records of the Trustee
(ii) The Trustee is authorized to invest the shall at all times show that all such securi-
Fund in time or demand deposits of the ties are part of the Fund;
Trustee, to the extent insured by an agency (d) To deposit any cash in the Fund in in-
of the federal or state government; and terest-bearing accounts maintained or sav-
(iii) The Trustee is authorized to hold cash ings certificates issued by the Trustee, in its
awaiting investment or distribution separate corporate capacity, or in any other
uninvested for a reasonable time and with- banking institution affiliated with the
out liability for the payment of interest Trustee, to the extent insured by an agency
thereon. of the federal or state government; and
(e) To compromise or otherwise adjust all
Section 7. Commingling and Investment claims in favor of or against the Fund.
The Trustee is expressly authorized in its Section 9. Taxes and Expenses
discretion:
(a) To transfer from time to time any or All taxes of any kind that may be assessed
all of the assets of the Fund to any common, or levied against or in respect of the Fund
commingled, or collective trust fund created and all brokerage commissions incurred by
by the Trustee in which the Fund is eligible the Fund shall be paid from the Fund. All
to participate, subject to all of the provi- other expenses incurred by the Trustee in
sions thereof, to be commingled with the as- connection with the administration of this
sets of other trusts participating therein; Trust, including fees for legal services ren-
and dered to the Trustee, the compensation of
(b) To purchase shares in any investment the Trustee to the extent not paid directly
company registered under the Investment by the Grantor, and all other proper charges
Company Act of 1940, 15 U.S.C. 80a–1 et seq., and disbursements of the Trustee shall be
including one which may be created, man- paid from the Fund.
aged, underwritten, or to which investment Section 10. Advice of Counsel
advice is rendered or the shares of which are
sold by the Trustee. The Trustee may vote The Trustee may from time to time con-
such shares in its discretion. sult with counsel, who may be counsel to the
Grantor, with respect to any questions aris-
Section 8. Express Powers of Trustee ing as to the construction of this Agreement
Without in any way limiting the powers or any action to be taken hereunder. The
and discretions conferred upon the Trustee Trustee shall be fully protected, to the ex-
by the other provisions of this Agreement or tent permitted by law, in acting upon the ad-
by law, the Trustee is expressly authorized vice of counsel.
and empowered: Section 11. Trustee Compensation
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by it, The Trustee shall be entitled to reasonable
by public or private sale. No person dealing compensation for its services as agreed upon
with the Trustee shall be bound to see to the in writing from time to time with the Grant-
application of the purchase money or to in- or.
quire into the validity or expediency of any
Section 12. Successor Trustee
such sale or other disposition;
(b) To make, execute, acknowledge, and de- The Trustee may resign or the Grantor
liver any and all documents of transfer and may replace the Trustee, but such resigna-
conveyance and any and all other instru- tion or replacement shall not be effective
ments that may be necessary or appropriate until the Grantor has appointed a successor
to carry out the powers herein granted; trustee and this successor accepts the ap-
(c) To register any securities held in the pointment. The successor trustee shall have
Fund in its own name or in the name of a the same powers and duties as those con-
nominee and to hold any security in bearer ferred upon the Trustee hereunder. Upon the
form or in book entry, or to combine certifi- successor trustee’s acceptance of the ap-
cates representing such securities with cer- pointment, the Trustee shall assign, trans-
tificates of the same issue held by the Trust- fer, and pay over to the successor trustee the
ee in other fiduciary capacities, or to deposit funds and properties then constituting the
or arrange for the deposit of such securities Fund. If for any reason the Grantor cannot
in a qualified central depository even or does not act in the event of the resigna-
though, when so deposited, such securities tion of the Trustee, the Trustee may apply
504
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Environmental Protection Agency § 280.103
to a court of competent jurisdiction for the accordance with this Agreement. The Trust-
appointment of a successor trustee or for in- ee shall be indemnified and saved harmless
structions. The successor trustee shall speci- by the Grantor, from and against any per-
fy the date on which it assumes administra- sonal liability to which the Trustee may be
tion of the trust in writing sent to the subjected by reason of any act or conduct in
Grantor and the present Trustee by certified its official capacity, including all expenses
mail 10 days before such change becomes ef- reasonably incurred in its defense in the
fective. Any expenses incurred by the Trust- event the Grantor fails to provide such de-
ee as a result of any of the acts con- fense.
templated by this Section shall be paid as
provided in Section 9. Section 17. Choice of Law
This Agreement shall be administered,
Section 13. Instructions to the Trustee
construed, and enforced according to the
All orders, requests, and instructions by laws of the state of [insert name of state], or
the Grantor to the Trustee shall be in writ- the Comptroller of the Currency in the case
ing, signed by such persons as are designated of National Association banks.
in the attached Schedule B or such other
designees as the Grantor may designate by Section 18. Interpretation
amendment to Schedule B. The Trustee shall As used in this Agreement, words in the
be fully protected in acting without inquiry singular include the plural and words in the
in accordance with the Grantor’s orders, re- plural include the singular. The descriptive
quests, and instructions. All orders, re- headings for each section of this Agreement
quests, and instructions by [the Director of shall not affect the interpretation or the
the implementing agency] to the Trustee legal efficacy of this Agreement.
shall be in writing, signed by [the Director], In Witness whereof the parties have caused
and the Trustee shall act and shall be fully this Agreement to be executed by their re-
protected in acting in accordance with such spective officers duly authorized and their
orders, requests, and instructions. The corporate seals (if applicable) to be hereunto
Trustee shall have the right to assume, in affixed and attested as of the date first above
the absence of written notice to the con- written. The parties below certify that the
trary, that no event constituting a change or wording of this Agreement is identical to the
a termination of the authority of any person wording specified in 40 CFR 280.103(b)(1) as
to act on behalf of the Grantor or [the direc-
such regulations were constituted on the
tor] hereunder has occurred. The Trustee
date written above.
shall have no duty to act in the absence of
such orders, requests, and instructions from [Signature of Grantor]
the Grantor and/or [the Director], except as [Name of the Grantor]
provided for herein. [Title]
Attest:
Section 14. Amendment of Agreement [Signature of Trustee]
This Agreement may be amended by an in- [Name of the Trustee]
strument in writing executed by the Grantor [Title]
and the Trustee, or by the Trustee and [the [Seal]
Director of the implementing agency] if the [Signature of Witness]
[Name of the Witness]
Grantor ceases to exist.
[Title]
Section 15. Irrevocability and Termination [Seal]
Subject to the right of the parties to (2) The standby trust agreement, or
amend this Agreement as provided in Sec- trust agreement must be accompanied
tion 14, this Trust shall be irrevocable and by a formal certification of acknowl-
shall continue until terminated at the writ- edgement similar to the following.
ten direction of the Grantor and the Trustee, State requirements may differ on the
or by the Trustee and [the Director of the proper content of this acknowledg-
implementing agency], if the Grantor ceases ment.
to exist. Upon termination of the Trust, all
remaining trust property, less final trust ad- State of lllllllllllllllllll
ministration expenses, shall be delivered to County of llllllllllllllllll
the Grantor. On this [date], before me personally came
[owner or operator] to me known, who, being
Section 16. Immunity and Indemnification
by me duly sworn, did depose and say that
The Trustee shall not incur personal liabil- she/he resides at [address], that she/he is
ity of any nature in connection with any act [title] of [corporation], the corporation de-
or omission, made in good faith, in the ad- scribed in and which executed the above in-
ministration of this Trust, or in carrying out strument; that she/he knows the seal of said
any directions by the Grantor or [the Direc- corporation; that the seal affixed to such in-
tor of the implementing agency] issued in strument is such corporate seal; that it was
505
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§ 280.104 40 CFR Ch. I (7–1–05 Edition)
so affixed by order of the Board of Directors bonds of $1 million or more, excluding
of said corporation; and that she/he signed refunded issues and by also having a
her/his name thereto by like order. Moody’s rating of Aaa, A, A, or Baa, or
[Signature of Notary Public] a Standard & Poor’s rating of AAA,
[Name of Notary Public]
AA, A, or BBB as the lowest rating for
(c) The Director of the implementing any rated revenue bond issued by the
agency will instruct the trustee to re- local government. Where bonds are
fund the balance of the standby trust rated by both Moody’s and Standard &
fund to the provider of financial assur- Poor’s, the lower rating for each bond
ance if the Director determines that no must be used to determine eligibility.
additional corrective action costs or Bonds that are backed by credit en-
third-party liability claims will occur hancement may not be considered in
as a result of a release covered by the determining the amount of applicable
financial assurance mechanism for bonds outstanding.
which the standby trust fund was es- (c) The local government owner or
tablished. operator and/or guarantor must main-
(d) An owner or operator may estab- tain a copy of its bond rating published
lish one trust fund as the depository within the last 12 months by Moody’s
mechanism for all funds assured in or Standard & Poor’s.
compliance with this rule.
(d) To demonstrate that it meets the
[53 FR 43370, Oct. 26, 1988; 53 FR 51274, Dec. local government bond rating test, the
21, 1988] chief financial officer of a general pur-
pose local government owner or oper-
§ 280.104 Local government bond rat- ator and/or guarantor must sign a let-
ing test.
ter worded exactly as follows, except
(a) A general purpose local govern- that the instructions in brackets are to
ment owner or operator and/or local be replaced by the relevant informa-
government serving as a guarantor tion and the brackets deleted:
may satisfy the requirements of § 280.93
by having a currently outstanding LETTER FROM CHIEF FINANCIAL OFFICER
issue or issues of general obligation I am the chief financial officer of [insert:
bonds of $1 million or more, excluding name and address of local government owner
refunded obligations, with a Moody’s or operator, or guarantor]. This letter is in
rating of Aaa, Aa, A, or Baa, or a support of the use of the bond rating test to
Standard & Poor’s rating of AAA, AA, demonstrate financial responsibility for [in-
A, or BBB. Where a local government sert: ‘‘taking corrective action’’ and/or
has multiple outstanding issues, or ‘‘compensating third parties for bodily in-
where a local government’s bonds are jury and property damage’’] caused by [in-
sert: ‘‘sudden accidental releases’’ and/or
rated by both Moody’s and Standard ‘‘nonsudden accidental releases’’] in the
and Poor’s, the lowest rating must be amount of at least [insert: dollar amount]
used to determine eligibility. Bonds per occurrence and [insert: dollar amount]
that are backed by credit enhancement annual aggregate arising from operating (an)
other than municipal bond insurance underground storage tank(s).
may not be considered in determining Underground storage tanks at the fol-
the amount of applicable bonds out- lowing facilities are assured by this bond
standing. rating test: [List for each facility: the name
(b) A local government owner or op- and address of the facility where tanks are
erator or local government serving as a assured by the bond rating test].
guarantor that is not a general-purpose The details of the issue date, maturity,
outstanding amount, bond rating, and bond
local government and does not have rating agency of all outstanding bond issues
the legal authority to issue general ob- that are being used by [name of local govern-
ligation bonds may satisfy the require- ment owner or operator, or guarantor] to
ments of § 280.93 by having a currently demonstrate financial responsibility are as
outstanding issue or issues of revenue follows: [complete table]
Issue date Maturity date Outstanding amount Bond rating Rating agency
[Moody’s or Standard &
Poor’s]
506
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Environmental Protection Agency § 280.104
The total outstanding obligation of [insert LETTER FROM CHIEF FINANCIAL OFFICER
amount], excluding refunded bond issues, ex-
ceeds the minimum amount of $1 million. All I am the chief financial officer of [insert:
outstanding general obligation bonds issued name and address of local government owner
by this government that have been rated by or operator, or guarantor]. This letter is in
Moody’s or Standard & Poor’s are rated as at support of the use of the bond rating test to
least investment grade (Moody’s Baa or demonstrate financial responsibility for [in-
Standard & Poor’s BBB) based on the most sert: ‘‘taking corrective action’’ and/or
recent ratings published within the last 12 ‘‘compensating third parties for bodily in-
months. Neither rating service has provided jury and property damage’’] caused by [in-
notification within the last 12 months of sert : ‘‘sudden accidental releases’’ and/or
downgrading of bond ratings below invest- ‘‘nonsudden accidental releases’’] in the
ment grade or of withdrawal of bond rating amount of at least [insert: dollar amount]
other than for repayment of outstanding per occurrence and [insert: dollar amount]
bond issues. annual aggregate arising from operating (an)
I hereby certify that the wording of this
underground storage tank(s). This local gov-
letter is identical to the wording specified in
ernment is not organized to provide general
40 CFR Part 280.104(d) as such regulations
were constituted on the date shown imme- governmental services and does not have the
diately below. legal authority under state law or constitu-
[Date] llllllllllllllllllll tional provisions to issue general obligation
[Signature] lllllllllllllllll debt.
[Name] lllllllllllllllllll Underground storage tanks at the fol-
[Title] llllllllllllllllllll lowing facilities are assured by this bond
(e) To demonstrate that it meets the rating test: [List for each facility: the name
local government bond rating test, the and address of the facility where tanks are
assured by the bond rating test].
chief financial officer of local govern-
The details of the issue date, maturity,
ment owner or operator and/or guar-
outstanding amount, bond rating, and bond
antor other than a general purpose rating agency of all outstanding revenue
government must sign a letter worded bond issues that are being used by [name of
exactly as follows, except that the in- local government owner or operator, or guar-
structions in brackets are to be re- antor] to demonstrate financial responsi-
placed by the relevant information and bility are as follows: [complete table]
the brackets deleted:
Issue date Maturity date Outstanding amount Bond rating Rating agency
[Moody’s or Standard &
Poor’s]
The total outstanding obligation of [insert [Signature] lllllllllllllllll
amount], excluding refunded bond issues, ex- [Name] lllllllllllllllllll
ceeds the minimum amount of $1 million. All [Title] llllllllllllllllllll
outstanding revenue bonds issued by this
government that have been rated by Moody’s (f) The Director of the implementing
or Standard & Poor’s are rated as at least in- agency may require reports of financial
vestment grade (Moody’s Baa or Standard & condition at any time from the local
Poor’s BBB) based on the most recent rat- government owner or operator, and/or
ings published within the last 12 months.
local government guarantor. If the Di-
The revenue bonds listed are not backed by
third-party credit enhancement or are in- rector finds, on the basis of such re-
sured by a municipal bond insurance com- ports or other information, that the
pany. Neither rating service has provided no- local government owner or operator,
tification within the last 12 months of down- and/or guarantor, no longer meets the
grading of bond ratings below investment local government bond rating test re-
grade or of withdrawal of bond rating other quirements of § 280.104, the local gov-
than for repayment of outstanding bond ernment owner or operator must ob-
issues.
I hereby certify that the wording of this
tain alternative coverage within 30
letter is identical to the wording specified in days after notification of such a find-
40 CFR part 280.104(e) as such regulations ing.
were constituted on the date shown imme- (g) If a local government owner or op-
diately below. erator using the bond rating test to
[Date] llllllllllllllllllll provide financial assurance finds that
507
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§ 280.105 40 CFR Ch. I (7–1–05 Edition)
it no longer meets the bond rating test ments on debt, payments for retire-
requirements, the local government ment of debt principal, and total ex-
owner or operator must obtain alter- penditures from all other governmental
native coverage within 150 days of the funds including enterprise, debt serv-
change in status. ice, capital projects, and special reve-
[58 FR 9053, Feb. 18, 1993] nues. For purposes of this test, the cal-
culation of total expenditures shall ex-
§ 280.105 Local government financial clude all transfers between funds under
test. the direct control of the local govern-
(a) A local government owner or op- ment using the financial test
erator may satisfy the requirements of (interfund transfers).
§ 280.93 by passing the financial test (iii) Local revenues: Consists of total
specified in this section. To be eligible revenues (as defined in paragraph
to use the financial test, the local gov- (b)(1)(i) of this section) minus the sum
ernment owner or operator must have of all transfers from other govern-
the ability and authority to assess and mental entities, including all monies
levy taxes or to freely establish fees received from Federal, state, or local
and charges. To pass the local govern- government sources.
ment financial test, the owner or oper-
(iv) Debt service: Consists of the sum
ator must meet the criteria of para-
of all interest and principal payments
graphs (b)(2) and (b)(3) of this section
based on year-end financial statements on all long-term credit obligations and
for the latest completed fiscal year. all interest-bearing short-term credit
(b)(1) The local government owner or obligations. Includes interest and prin-
operator must have the following infor- cipal payments on general obligation
mation available, as shown in the year- bonds, revenue bonds, notes, mort-
end financial statements for the latest gages, judgments, and interest bearing
completed fiscal year: warrants. Excludes payments on non-
(i) Total revenues: Consists of the sum interest-bearing short-term obliga-
of general fund operating and non-oper- tions, interfund obligations, amounts
ating revenues including net local owed in a trust or agency capacity, and
taxes, licenses and permits, fines and advances and contingent loans from
forfeitures, revenues from use of money other governments.
and property, charges for services, in- (v) Total funds: Consists of the sum of
vestment earnings, sales (property, cash and investment securities from all
publications, etc.), intergovernmental funds, including general, enterprise,
revenues (restricted and unrestricted), debt service, capital projects, and spe-
and total revenues from all other gov- cial revenue funds, but excluding em-
ernmental funds including enterprise, ployee retirement funds, at the end of
debt service, capital projects, and spe- the local government’s financial re-
cial revenues, but excluding revenues
porting year. Includes Federal securi-
to funds held in a trust or agency ca-
ties, Federal agency securities, state
pacity. For purposes of this test, the
and local government securities, and
calculation of total revenues shall ex-
other securities such as bonds, notes
clude all transfers between funds under
the direct control of the local govern- and mortgages. For purposes of this
ment using the financial test test, the calculation of total funds
(interfund transfers), liquidation of in- shall exclude agency funds, private
vestments, and issuance of debt. trust funds, accounts receivable, value
(ii) Total expenditures: Consists of the of real property, and other non-secu-
sum of general fund operating and non- rity assets.
operating expenditures including pub- (vi) Population consists of the number
lic safety, public utilities, transpor- of people in the area served by the
tation, public works, environmental local government.
protection, cultural and recreational, (2) The local government’s year-end
community development, revenue shar- financial statements, if independently
ing, employee benefits and compensa- audited, cannot include an adverse
tion, office management, planning and auditor’s opinion or a disclaimer of
zoning, capital projects, interest pay- opinion. The local government cannot
508
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Environmental Protection Agency § 280.105
have outstanding issues of general obli- WORKSHEET FOR MUNICIPAL FINANCIAL TEST
gation or revenue bonds that are rated Part I: Basic Information
as less than investment grade.
(3) The local government owner or 1. Total Revenues
operator must have a letter signed by a. Revenues (dollars) llllll
the chief financial officer worded as Value of revenues excludes liquidation of
specified in paragraph (c) of this sec- investments and issuance of debt. Value
tion. includes all general fund operating and
non-operating revenues, as well as all
(c) To demonstrate that it meets the revenues from all other governmental
financial test under paragraph (b) of funds including enterprise, debt service,
this section, the chief financial officer capital projects, and special revenues,
of the local government owner or oper- but excluding revenues to funds held in a
ator, must sign, within 120 days of the trust or agency capacity.
b. Subtract interfund transfers (dol-
close of each financial reporting year,
lars)llllll
as defined by the twelve-month period c. Total Revenues (dollars)llllll
for which financial statements used to
support the financial test are prepared, 2. Total Expenditures
a letter worded exactly as follows, ex- a. Expenditures (dollars) llllll
cept that the instructions in brackets Value consists of the sum of general fund
are to be replaced by the relevant in- operating and non-operating expendi-
tures including interest payments on
formation and the brackets deleted:
debt, payments for retirement of debt
LETTER FROM CHIEF FINANCIAL OFFICER principal, and total expenditures from all
other governmental funds including en-
I am the chief financial officer of [insert: terprise, debt service, capital projects,
name and address of the owner or operator]. and special revenues.
This letter is in support of the use of the b. Subtract interfund transfers (dol-
local government financial test to dem- lars)llllll
onstrate financial responsibility for [insert: c. Total Expenditures (dollars)llllll
‘‘taking corrective action’’ and/or ‘‘compen-
3. Local Revenues
sating third parties for bodily injury and
property damage’’] caused by [insert: ‘‘sud- a. Total Revenues (from 1c) (dollars)
den accidental releases’’ and/or ‘‘nonsudden llllll
accidental releases’’] in the amount of at b. Subtract total intergovernmental trans-
least [insert: dollar amount] per occurrence fers (dollars)llllll
and [insert: dollar amount] annual aggregate c. Local Revenues (dollars)llllll
arising from operating [an] underground
4. Debt Service
storage tank[s].
Underground storage tanks at the fol- a. Interest and fiscal charges (dol-
lowing facilities are assured by this financial lars)llllll
test [List for each facility: the name and ad- b. Add debt retirement (dollars)llllll
dress of the facility where tanks assured by c. Total Debt Service (dollars)llllll
this financial test are located. If separate 5. Total Funds (Dollars)llllll
mechanisms or combinations of mechanisms
are being used to assure any of the tanks at (Sum of amounts held as cash and invest-
this facility, list each tank assured by this ment securities from all funds, excluding
financial test by the tank identification amounts held for employee retirement
number provided in the notification sub- funds, agency funds, and trust funds)
mitted pursuant to 40 CFR Part 280.22 or the 6. Population (Persons)llllll
corresponding state requirements.]
This owner or operator has not received an Part II: Application of Test
adverse opinion, or a disclaimer of opinion
from an independent auditor on its financial 7. Total Revenues to Population
statements for the latest completed fiscal a. Total Revenues (from 1c)llllll
year. Any outstanding issues of general obli- b. Population (from 6)llllll
gation or revenue bonds, if rated, have a c. Divide 7a by 7b llllll
Moody’s rating of Aaa, Aa, A, or Baa or a d. Subtract 417llllll
Standard and Poor’s rating of AAA, AA, A, e. Divide by 5,212llllll
or BBB; if rated by both firms, the bonds f. Multiply by 4.095llllll
have a Moody’s rating of Aaa, Aa, A, or Baa
8. Total Expenses to Population
and a Standard and Poor’s rating of AAA,
AA, A, or BBB. a. Total Expenses (from 2c)llllll
509
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§ 280.106 40 CFR Ch. I (7–1–05 Edition)
b. Population (from 6)llllll 16. Add 7f + 8f + 9f + 10f + 11f + 12f + 13f + 14f
c. Divide 8a by 8b llllll + 15f + 4.937llllll
d. Subtract 524 llllll I hereby certify that the financial index
e. Divide by 5,401llllll shown on line 16 of the worksheet is greater
f. Multiply by 4.095llllll than zero and that the wording of this letter
is identical to the wording specified in 40
9. Local Revenues to Total Revenues CFR part 280.105(c) as such regulations were
a. Local Revenues (from 3c)llllll constituted on the date shown immediately
b. Total Revenues (from 1c)llllll below.
c. Divide 9a by 9b llllll [Date]
d. Subtract .695llllll [Signature]
e. Divide by .205llllll [Name]
[Title]
f. Multiply by 2.840 llllll
(d) If a local government owner or op-
10. Debt Service to Population
erator using the test to provide finan-
a. Debt Service (from 4d) llllll cial assurance finds that it no longer
b. Population (from 6)llllll meets the requirements of the finan-
c. Divide 10a by 10b llllll cial test based on the year-end finan-
d. Subtract 51 llllll cial statements, the owner or operator
e. Divide by 1,038llllll must obtain alternative coverage with-
f. Multiply by ¥1.866llllll in 150 days of the end of the year for
11. Debt Service to Total Revenues
which financial statements have been
prepared.
a. Debt Service (from 4d)llllll (e) The Director of the implementing
b. Total Revenues (from 1c)llllll agency may require reports of financial
c. Divide 11a by 11b llllll condition at any time from the local
d. Subtract .068 llllll government owner or operator. If the
e. Divide by .259 llllll Director finds, on the basis of such re-
f. Multiply by ¥3.533 llllll
ports or other information, that the
12. Total Revenues to Total Expenses local government owner or operator no
longer meets the financial test require-
a. Total Revenues (from 1c)llllll
ments of § 280.105 (b) and (c), the owner
b. Total Expenses (from 2c)llllll
or operator must obtain alternate cov-
c. Divide 12a by 12bllllll
d. Subtract .910 llllll
erage within 30 days after notification
e. Divide by .899 llllll of such a finding.
f. Multiply by 3.458 llllll (f) If the local government owner or
operator fails to obtain alternate as-
13. Funds Balance to Total Revenues surance within 150 days of finding that
a. Total Funds (from 5) llllll it no longer meets the requirements of
b. Total Revenues (from 1c)llllll the financial test based on the year-end
c. Divide 13a by 13b llllll financial statements or within 30 days
d. Subtract .891 llllll of notification by the Director of the
e. Divide by 9.156llllll implementing agency that it no longer
f. Multiply by 3.270 llllll meets the requirements of the finan-
cial test, the owner or operator must
14. Funds Balance to Total Expenses notify the Director of such failure
a. Total Funds (from 5)llllll within 10 days.
b. Total Expenses (from 2c)llllll
[58 FR 9054, Feb. 18, 1993]
c. Divide 14a by 14bllllll
d. Subtract .866 llllll § 280.106 Local government guarantee.
e. Divide by 6.409 llllll
f. Multiply by 3.270 llllll (a) A local government owner or op-
erator may satisfy the requirements of
15. Total Funds to Population llllll § 280.93 by obtaining a guarantee that
a. Total Funds (from 5) llllll conforms to the requirements of this
b. Population (from 6)llllll section. The guarantor must be either
c. Divide 15a by 15b llllll the state in which the local govern-
d. Subtract 270 llllll ment owner or operator is located or a
e. Divide by 4,548 llllll local government having a ‘‘substan-
f. Multiply by 1.866 llllll tial governmental relationship’’ with
510
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Environmental Protection Agency § 280.106
the owner and operator and issuing the (d) If the guarantor is a state, the
guarantee as an act incident to that re- local government guarantee with
lationship. A local government acting standby trust must be worded exactly
as the guarantor must: as follows, except that instructions in
(1) demonstrate that it meets the brackets are to be replaced with rel-
bond rating test requirement of evant information and the brackets de-
§ 280.104 and deliver a copy of the chief leted:
financial officer’s letter as contained
Local Government Guarantee With Standby
in § 280.104(c) to the local government
Trust Made by a State
owner or operator; or
(2) demonstrate that it meets the Guarantee made this [date] by [name of
worksheet test requirements of § 280.105 state], herein referred to as guarantor, to
[the state implementing agency] and to any
and deliver a copy of the chief financial
and all third parties, and obliges, on behalf
officer’s letter as contained in of [local government owner or operator].
§ 280.105(c) to the local government
owner or operator; or Recitals
(3) demonstrate that it meets the (1) Guarantor is a state.
local government fund requirements of (2) [Local government owner or operator]
§ 280.107(a), § 280.107(b), or § 280.107(c) owns or operates the following underground
and deliver a copy of the chief financial storage tank(s) covered by this guarantee:
officer’s letter as contained in § 280.107 [List the number of tanks at each facility
to the local government owner or oper- and the name(s) and address(es) of the facil-
ity(ies) where the tanks are located. If more
ator.
than one instrument is used to assure dif-
(b) If the local government guarantor ferent tanks at any one facility, for each
is unable to demonstrate financial as- tank covered by this instrument, list the
surance under any of §§ 280.104, 280.105, tank identification number provided in the
280.107(a), 280.107(b), or 280.107(c), at the notification submitted pursuant to 40 CFR
end of the financial reporting year, the part 280 or the corresponding state require-
guarantor shall send by certified mail, ment, and the name and address of the facil-
before cancellation or non-renewal of ity.] This guarantee satisfies 40 CFR part
280, subpart H requirements for assuring
the guarantee, notice to the owner or
funding for [insert: ‘‘taking corrective ac-
operator. The guarantee will terminate tion’’ and/or ‘‘compensating third parties for
no less than 120 days after the date the bodily injury and property damage caused
owner or operator receives the notifica- by’’ either ‘‘sudden accidental releases’’ or
tion, as evidenced by the return re- ‘‘nonsudden accidental releases’’ or ‘‘acci-
ceipt. The owner or operator must ob- dental releases’’; if coverage is different for
tain alternative coverage as specified different tanks or locations, indicate the
in § 280.114(c). type of coverage applicable to each tank or
location] arising from operating the above-
(c) The guarantee agreement must be
identified underground storage tank(s) in the
worded as specified in paragraph (d) or amount of [insert dollar amount] per occur-
(e) of this section, depending on which rence and [insert dollar amount] annual ag-
of the following alternative guarantee gregate.
arrangements is selected: (3) Guarantor guarantees to [implementing
(1) If, in the default or incapacity of agency] and to any and all third parties that:
the owner or operator, the guarantor In the event that [local government owner
guarantees to fund a standby trust as or operator] fails to provide alternative cov-
erage within 60 days after receipt of a notice
directed by the Director of the imple-
of cancellation of this guarantee and the [Di-
menting agency, the guarantee shall be rector of the implementing agency] has de-
worded as specified in paragraph (d) of termined or suspects that a release has oc-
this section. curred at an underground storage tank cov-
(2) If, in the default or incapacity of ered by this guarantee, the guarantor, upon
the owner or operator, the guarantor instructions from the [Director] shall fund a
guarantees to make payments as di- standby trust fund in accordance with the
rected by the Director of the imple- provisions of 40 CFR part 280.112, in an
amount not to exceed the coverage limits
menting agency for taking corrective
specified above.
action or compensating third parties In the event that the [Director] determines
for bodily injury and property damage, that [local government owner or operator]
the guarantee shall be worded as speci- has failed to perform corrective action for
fied in paragraph (e) of this section. releases arising out of the operation of the
511
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§ 280.106 40 CFR Ch. I (7–1–05 Edition)
above-identified tank(s) in accordance with (e) Bodily damage or property damage for
40 CFR part 280, subpart F, the guarantor which [insert owner or operator] is obligated
upon written instructions from the [Direc- to pay damages by reason of the assumption
tor] shall fund a standby trust fund in ac- of liability in a contract or agreement other
cordance with the provisions of 40 CFR part than a contract or agreement entered into to
280.112, in an amount not to exceed the cov- meet the requirements of 40 CFR part 280.93.
erage limits specified above. (8) Guarantor expressly waives notice of
If [owner or operator] fails to satisfy a acceptance of this guarantee by [the imple-
judgment or award based on a determination menting agency], by any or all third parties,
of liability for bodily injury or property or by [local government owner or operator],
damage to third parties caused by [’’sudden’’ I hereby certify that the wording of this
and/or ‘‘nonsudden’’] accidental releases guarantee is identical to the wording speci-
arising from the operation of the above-iden- fied in 40 CFR part 280.106(d) as such regula-
tified tank(s), or fails to pay an amount tions were constituted on the effective date
agreed to in settlement of a claim arising shown immediately below.
from or alleged to arise from such injury or Effective date: lllllllllllllll
damage, the guarantor, upon written in- [Name of guarantor]
structions from the [Director], shall fund a [Authorized signature for guarantor]
standby trust in accordance with the provi- [Name of person signing]
sions of 40 CFR part 280.112 to satisfy such [Title of person signing]
judgment(s), award(s), or settlement agree- Signature of witness or notary:
ment(s) up to the limits of coverage specified
above. If the guarantor is a local government, the
(4) Guarantor agrees to notify [owner or local government guarantee with standby
operator] by certified mail of a voluntary or trust must be worded exactly as follows, ex-
involuntary proceeding under Title 11 (Bank- cept that instructions in brackets are to be
ruptcy), U.S. Code naming guarantor as replaced with relevant information and the
debtor, within 10 days after commencement brackets deleted:
of the proceeding. LOCAL GOVERNMENT GUARANTEE WITH STAND-
(5) Guarantor agrees to remain bound BY TRUST MADE BY A LOCAL GOVERNMENT
under this guarantee notwithstanding any
modification or alteration of any obligation Guarantee made this [date] by [name of
of [owner or operator] pursuant to 40 CFR guaranteeing entity], a local government or-
part 280. ganized under the laws of [name of state],
(6) Guarantor agrees to remain bound herein referred to as guarantor, to [the state
under this guarantee for so long as [local implementing agency] and to any and all
government owner or operator] must comply third parties, and obliges, on behalf of [local
with the applicable financial responsibility government owner or operator].
requirements of 40 CFR part 280, subpart H
for the above identified tank(s), except that Recitals
guarantor may cancel this guarantee by (1) Guarantor meets or exceeds [select one:
sending notice by certified mail to [owner or the local government bond rating test re-
operator], such cancellation to become effec- quirements of 40 CFR part 280.104, the local
tive no earlier than 120 days after receipt of government financial test requirements of 40
such notice by [owner or operator], as evi- CFR part 280.105, or the local government
denced by the return receipt. fund under 40 CFR part 280.107(a), 280.107(b),
(7) The guarantor’s obligation does not or 280.107(c)].
apply to any of the following: (2) [Local government owner or operator]
(a) Any obligation of [local government owns or operates the following underground
owner or operator] under a workers’ com- storage tank(s) covered by this guarantee:
pensation, disability benefits, or unemploy- [List the number of tanks at each facility
ment compensation law or other similar law; and the name(s) and address(es) of the facil-
(b) Bodily injury to an employee of [insert: ity(ies) where the tanks are located. If more
local government owner or operator] arising than one instrument is used to assure dif-
from, and in the course of, employment by ferent tanks at any one facility, for each
[insert: local government owner or operator]; tank covered by this instrument, list the
(c) Bodily injury or property damage aris- tank identification number provided in the
ing from the ownership, maintenance, use, or notification submitted pursuant to 40 CFR
entrustment to others of any aircraft, motor part 280 or the corresponding state require-
vehicle, or watercraft; ment, and the name and address of the facil-
(d) Property damage to any property ity.] This guarantee satisfies 40 CFR part
owned, rented, loaded to, in the care, cus- 280, subpart H requirements for assuring
tody, or control of, or occupied by [insert: funding for [insert: ‘‘taking corrective ac-
local government owner or operator] that is tion’’ and/or ‘‘compensating third parties for
not the direct result of a release from a pe- bodily injury and property damage caused
troleum underground storage tank; by’’ either ‘‘sudden accidental releases’’ or
512
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Environmental Protection Agency § 280.106
‘‘nonsudden accidental releases’’ or ‘‘acci- debtor, within 10 days after commencement
dental releases’’; if coverage is different for of the proceeding.
different tanks or locations, indicate the (6) Guarantor agrees to remain bound
type of coverage applicable to each tank or under this guarantee notwithstanding any
location] arising from operating the above- modification or alteration of any obligation
identified underground storage tank(s) in the of [owner or operator] pursuant to 40 CFR
amount of [insert dollar amount] per occur- part 280.
rence and [insert: dollar amount] annual ag- (7) Guarantor agrees to remain bound
gregate. under this guarantee for so long as [local
(3) Incident to our substantial govern- government owner or operator] must comply
mental relationship with [local government with the applicable financial responsibility
owner or operator], guarantor guarantees to requirements of 40 CFR part 280, subpart H
[implementing agency] and to any and all for the above identified tank(s), except that
third parties that: guarantor may cancel this guarantee by
In the event that [local government owner sending notice by certified mail to [owner or
or operator] fails to provide alternative cov- operator], such cancellation to become effec-
erage within 60 days after receipt of a notice tive no earlier than 120 days after receipt of
of cancellation of this guarantee and the [Di- such notice by [owner or operator], as evi-
rector of the implementing agency] has de- denced by the return receipt.
termined or suspects that a release has oc- (8) The guarantor’s obligation does not
curred at an underground storage tank cov- apply to any of the following:
ered by this guarantee, the guarantor, upon (a) Any obligation of [local government
instructions from the [Director] shall fund a owner or operator] under a workers’ com-
standby trust fund in accordance with the pensation, disability benefits, or unemploy-
provisions of 40 CFR part 280.112, in an ment compensation law or other similar law;
amount not to exceed the coverage limits
(b) Bodily injury to an employee of [insert:
specified above.
local government owner or operator] arising
In the event that the [Director] determines
from, and in the course of, employment by
that [local government owner or operator]
[insert: local government owner or operator];
has failed to perform corrective action for
releases arising out of the operation of the (c) Bodily injury or property damage aris-
above-identified tank(s) in accordance with ing from the ownership, maintenance, use, or
40 CFR part 280, subpart F, the guarantor entrustment to others of any aircraft, motor
upon written instructions from the [Direc- vehicle, or watercraft;
tor] shall fund a standby trust fund in ac- (d) Property damage to any property
cordance with the provisions of 40 CFR part owned, rented, loaned to, in the care, cus-
280.112, in an amount not to exceed the cov- tody, or control of, or occupied by [insert:
erage limits specified above. local government owner or operator] that is
If [owner or operator] fails to satisfy a not the direct result of a release from a pe-
judgment or award based on a determination troleum underground storage tank;
of liability for bodily injury or property (e) Bodily damage or property damage for
damage to third parties caused by [‘‘sudden’’ which [insert: owner or operator] is obligated
and/or ‘‘nonsudden’’] accidental releases to pay damages by reason of the assumption
arising from the operation of the above-iden- of liability in a contract or agreement other
tified tank(s), or fails to pay an amount than a contract or agreement entered into to
agreed to in settlement of a claim arising meet the requirements of 40 CFR part 280.93.
from or alleged to arise from such injury or (9) Guarantor expressly waives notice of
damage, the guarantor, upon written in- acceptance of this guarantee by [the imple-
structions from the [Director], shall fund a menting agency], by any or all third parties,
standby trust in accordance with the provi- or by [local government owner or operator].
sions of 40 CFR part 280.112 to satisfy such I hereby certify that the wording of this
judgment(s), award(s), or settlement agree- guarantee is identical to the wording speci-
ment(s) up to the limits of coverage specified fied in 40 CFR part 280.106(d) as such regula-
above. tions were constituted on the effective date
(4) Guarantor agrees that, if at the end of shown immediately below.
any fiscal year before cancellation of this Effective date: lllllllllllllll
guarantee, the guarantor fails to meet or ex- [Name of guarantor]
ceed the requirements of the financial re- [Authorized signature for guarantor]
sponsibility mechanism specified in para- [Name of person signing]
graph (1), guarantor shall send within 120 [Title of person signing]
days of such failure, by certified mail, notice Signature of witness or notary:
to [local government owner or operator], as llllllllllllllllllllllll
evidenced by the return receipt.
(5) Guarantor agrees to notify [owner or (e) If the guarantor is a state, the
operator] by certified mail of a voluntary or local government guarantee without
involuntary proceeding under Title 11 (Bank- standby trust must be worded exactly
ruptcy), U.S. Code naming guarantor as as follows, except that instructions in
513
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§ 280.106 40 CFR Ch. I (7–1–05 Edition)
brackets are to be replaced with rel- tor] shall make funds available to pay for
evant information and the brackets de- corrective actions in an amount not to ex-
leted: ceed the coverage limits specified above.
If [owner or operator] fails to satisfy a
LOCAL GOVERNMENT GUARANTEE WITHOUT judgment or award based on a determination
STANDBY TRUST MADE BY A STATE of liability for bodily injury or property
damage to third parties caused by [‘‘sudden’’
Guarantee made this [date] by [name of and/or ‘‘nonsudden’’] accidental releases
state], herein referred to as guarantor, to arising from the operation of the above-iden-
[the state implementing agency] and to any tified tank(s), or fails to pay an amount
and all third parties, and obliges, on behalf agreed to in settlement of a claim arising
of [local government owner or operator]. from or alleged to arise from such injury or
Recitals damage, the guarantor, upon written in-
structions from the [Director], shall make
(1) Guarantor is a state. funds available to compensate third parties
(2) [Local government owner or operator] for bodily injury and property damage in an
owns or operates the following underground amount not to exceed the coverage limits
storage tank(s) covered by this guarantee: specified above.
[List the number of tanks at each facility (4) Guarantor agrees to notify [owner or
and the name(s) and address(es) of the facil- operator] by certified mail of a voluntary or
ity(ies) where the tanks are located. If more involuntary proceeding under Title 11 (Bank-
than one instrument is used to assure dif- ruptcy), U.S. Code naming guarantor as
ferent tanks at any one facility, for each debtor, within 10 days after commencement
tank covered by this instrument, list the of the proceeding.
tank identification number provided in the (5) Guarantor agrees to remain bound
notification submitted pursuant to 40 CFR under this guarantee notwithstanding any
part 280 or the corresponding state require- modification or alteration of any obligation
ment, and the name and address of the facil- of [owner or operator] pursuant to 40 CFR
ity.] This guarantee satisfies 40 CFR part part 280.
280, subpart H requirements for assuring (6) Guarantor agrees to remain bound
funding for [insert: ‘‘taking corrective ac- under this guarantee for so long as [local
tion’’ and/or ‘‘compensating third parties for government owner or operator] must comply
bodily injury and property damage caused with the applicable financial responsibility
by’’ either ‘‘sudden accidental releases’’ or requirements of 40 CFR part 280, subpart H
‘‘nonsudden accidental releases’’ or ‘‘acci- for the above identified tank(s), except that
dental releases’’; if coverage is different for guarantor may cancel this guarantee by
different tanks or locations, indicate the sending notice by certified mail to [owner or
type of coverage applicable to each tank or operator], such cancellation to become effec-
location] arising from operating the above- tive no earlier than 120 days after receipt of
identified underground storage tank(s) in the such notice by [owner or operator], as evi-
amount of [insert: dollar amount] per occur- denced by the return receipt. If notified of a
rence and [insert: dollar amount] annual ag- probable release, the guarantor agrees to re-
gregate. main bound to the terms of this guarantee
(3) Guarantor guarantees to [implementing for all charges arising from the release, up to
agency] and to any and all third parties and the coverage limits specified above, notwith-
obliges that: standing the cancellation of the guarantee
In the event that [local government owner with respect to future releases.
or operator] fails to provide alternative cov- (7) The guarantor’s obligation does not
erage within 60 days after receipt of a notice apply to any of the following:
of cancellation of this guarantee and the [Di- (a) Any obligation of [local government
rector of the implementing agency] has de- owner or operator] under a workers’ com-
termined or suspects that a release has oc- pensation disability benefits, or unemploy-
curred at an underground storage tank cov- ment compensation law or other similar law;
ered by this guarantee, the guarantor, upon (b) Bodily injury to an employee of [insert
written instructions from the [Director] local government owner or operator] arising
shall make funds available to pay for correc- from, and in the course of, employment by
tive actions and compensate third parties for [insert: local government owner or operator];
bodily injury and property damage in an (c) Bodily injury or property damage aris-
amount not to exceed the coverage limits ing from the ownership, maintenance, use, or
specified above. entrustment to others of any aircraft, motor
In the event that the [Director] determines vehicle, or watercraft;
that [local government owner or operator] (d) Property damage to any property
has failed to perform corrective action for owned, rented, loaded to, in the care, cus-
releases arising out of the operation of the tody, or control of, or occupied by [insert:
above-identified tank(s) in accordance with local government owner or operator] that is
40 CFR part 280, subpart F, the guarantor not the direct result of a release from a pe-
upon written instructions from the [Direc- troleum underground storage tank;
514
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Environmental Protection Agency § 280.106
(e) Bodily damage or property damage for ‘‘nonsudden accidental releases’’ or ‘‘acci-
which [insert: owner or operator] is obligated dental releases’’; if coverage is different for
to pay damages by reason of the assumption different tanks or locations, indicate the
of liability in a contract or agreement other type of coverage applicable to each tank or
than a contract or agreement entered into to location] arising from operating the above-
meet the requirements of 40 CFR part 280.93. identified underground storage tank(s) in the
(8) Guarantor expressly waives notice of amount of [insert: dollar amount] per occur-
acceptance of this guarantee by [the imple- rence and [insert: dollar amount] annual ag-
menting agency], by any or all third parties, gregate.
or by [local government owner or operator]. (3) Incident to our substantial govern-
I hereby certify that the wording of this mental relationship with [local government
guarantee is identical to the wording speci- owner or operator], guarantor guarantees to
fied in 40 CFR part 280.106(e) as such regula- [implementing agency] and to any and all
tions were constituted on the effective date third parties and obliges that:
shown immediately below. In the event that [local government owner
Effective date: lllllllllllllll or operator] fails to provide alternative cov-
[Name of guarantor] erage within 60 days after receipt of a notice
[Authorized signature for guarantor] of cancellation of this guarantee and the [Di-
[Name of person signing] rector of the implementing agency] has de-
[Title of person signing] termined or suspects that a release has oc-
Signature of witness or notary: curred at an underground storage tank cov-
If the guarantor is a local government, the ered by this guarantee, the guarantor, upon
local government guarantee without standby written instructions from the [Director]
trust must be worded exactly as follows, ex- shall make funds available to pay for correc-
cept that instructions in brackets are to be tive actions and compensate third parties for
replaced with relevant information and the bodily injury and property damage in an
brackets deleted: amount not to exceed the coverage limits
specified above.
LOCAL GOVERNMENT GUARANTEE WITHOUT
In the event that the [Director] determines
STANDBY TRUST MADE BY A LOCAL GOVERN-
that [local government owner or operator]
MENT
has failed to perform corrective action for
Guarantee made this [date] by [name of releases arising out of the operation of the
guaranteeing entity], a local government or- above-identified tank(s) in accordance with
ganized under the laws of [name of state], 40 CFR part 280, subpart F, the guarantor
herein referred to as guarantor, to [the state upon written instructions from the [Direc-
implementing agency] and to any and all tor] shall make funds available to pay for
third parties, and obliges, on behalf of [local corrective actions in an amount not to ex-
government owner or operator]. ceed the coverage limits specified above.
If [owner or operator] fails to satisfy a
Recitals judgment or award based on a determination
(1) Guarantor meets or exceeds [select one: of liability for bodily injury or property
the local government bond rating test re- damage to third parties caused by [‘‘sudden’’
quirements of 40 CFR part 280.104, the local and/or ‘‘nonsudden’’] accidental releases
government financial test requirements of 40 arising from the operation of the above-iden-
part CFR 280.105, the local government fund tified tank(s), or fails to pay an amount
under 40 CFR part 280.107(a), 280.107(b), or agreed to in settlement of a claim arising
280.107(c). from or alleged to arise from such injury or
(2) [Local government owner or operator] damage, the guarantor, upon written in-
owns or operates the following underground structions from the [Director], shall make
storage tank(s) covered by this guarantee: funds available to compensate third parties
[List the number of tanks at each facility for bodily injury and property damage in an
and the name(s) and address(es) of the facil- amount not to exceed the coverage limits
ity(ies) where the tanks are located. If more specified above.
than one instrument is used to assure dif- (4) Guarantor agrees that if at the end of
ferent tanks at any one facility, for each any fiscal year before cancellation of this
tank covered by this instrument, list the guarantee, the guarantor fails to meet or ex-
tank identification number provided in the ceed the requirements of the financial re-
notification submitted pursuant to 40 CFR sponsibility mechanism specified in para-
part 280 or the corresponding state require- graph (1), guarantor shall send within 120
ment, and the name and address of the facil- days of such failure, by certified mail, notice
ity.] This guarantee satisfies 40 CFR part to [local government owner or operator], as
280, subpart H requirements for assuring evidenced by the return receipt.
funding for [insert: ‘‘taking corrective ac- (5) Guarantor agrees to notify [owner or
tion’’ and/or ‘‘compensating third parties for operator] by certified mail of a voluntary or
bodily injury and property damage caused involuntary proceeding under Title 11 (Bank-
by’’ either ‘‘sudden accidental releases’’ or ruptcy), U.S. Code naming guarantor as
515
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§ 280.107 40 CFR Ch. I (7–1–05 Edition)
debtor, within 10 days after commencement Signature of witness or notary:
of the proceeding.
[58 FR 9056, Feb. 18, 1993]
(6) Guarantor agrees to remain bound
under this guarantee notwithstanding any § 280.107 Local government fund.
modification or alteration of any obligation
of [owner or operator] pursuant to 40 CFR A local government owner or oper-
part 280. ator may satisfy the requirements of
(7) Guarantor agrees to remain bound § 280.93 by establishing a dedicated fund
under this guarantee for so long as [local account that conforms to the require-
government owner or operator] must comply ments of this section. Except as speci-
with the applicable financial responsibility fied in paragraph (b), a dedicated fund
requirements of 40 CFR part 280, subpart H may not be commingled with other
for the above identified tank(s), except that
guarantor may cancel this guarantee by
funds or otherwise used in normal oper-
sending notice by certified mail to [owner or ations. A dedicated fund will be consid-
operator], such cancellation to become effec- ered eligible if it meets one of the fol-
tive no earlier than 120 days after receipt of lowing requirements:
such notice by [owner or operator], as evi- (a) The fund is dedicated by state
denced by the return receipt. If notified of a constitutional provision, or local gov-
probable release, the guarantor agrees to re- ernment statute, charter, ordinance, or
main bound to the terms of this guarantee order to pay for taking corrective ac-
for all charges arising from the release, up to tion and for compensating third parties
the coverage limits specified above, notwith-
standing the cancellation of the guarantee
for bodily injury and property damage
with respect to future releases. caused by accidental releases arising
(8) The guarantor’s obligation does not from the operation of petroleum under-
apply to any of the following: ground storage tanks and is funded for
(a) Any obligation of [local government the full amount of coverage required
owner or operator] under a workers’ com- under § 280.93, or funded for part of the
pensation disability benefits, or unemploy- required amount of coverage and used
ment compensation law or other similar law; in combination with other mecha-
(b) Bodily injury to an employee of [insert: nism(s) that provide the remaining
local government owner or operator] arising coverage; or
from, and in the course of, employment by (b) The fund is dedicated by state
[insert: local government owner or operator];
constitutional provision, or local gov-
(c) Bodily injury or property damage aris-
ing from the ownership, maintenance, use, or
ernment statute, charter, ordinance, or
entrustment to others of any aircraft, motor order as a contingency fund for general
vehicle, or watercraft; emergencies, including taking correc-
(d) Property damage to any property tive action and compensating third
owned, rented, loaded to, in the care, cus- parties for bodily injury and property
tody, or control of, or occupied by [insert: damage caused by accidental releases
local government owner or operator] that is arising from the operation of petro-
not the direct result of a release from a pe- leum underground storage tanks, and
troleum underground storage tank;
is funded for five times the full amount
(e) Bodily damage or property damage for
which [insert: owner or operator] is obligated
of coverage required under § 280.93, or
to pay damages by reason of the assumption funded for part of the required amount
of liability in a contract or agreement other of coverage and used in combination
than a contract or agreement entered into to with other mechanism(s) that provide
meet the requirements of 40 CFR part 280.93. the remaining coverage. If the fund is
(9) Guarantor expressly waives notice of funded for less than five times the
acceptance of this guarantee by [the imple- amount of coverage required under
menting agency], by any or all third parties, § 280.93, the amount of financial respon-
or by [local government owner or operator], sibility demonstrated by the fund may
I hereby certify that the wording of this
not exceed one-fifth the amount in the
guarantee is identical to the wording speci-
fied in 40 CFR part 280.106(e) as such regula- fund; or
tions were constituted on the effective date (c) The fund is dedicated by state
shown immediately below. constitutional provision, or local gov-
Effective date: lllllllllllllll ernment statute, charter, ordinance or
[Name of guarantor] order to pay for taking corrective ac-
[Authorized signature for guarantor] tion and for compensating third parties
[Name of person signing] for bodily injury and property damage
[Title of person signing] caused by accidental releases arising
516
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Environmental Protection Agency § 280.107
from the operation of petroleum under- action’’ and/or ‘‘compensating third parties
ground storage tanks. A payment is for bodily injury and property damage’’]
made to the fund once every year for caused by [insert: ‘‘sudden accidental re-
leases’’ and/or ‘‘nonsudden accidental re-
seven years until the fund is fully-fund- leases’’] in the amount of at least [insert:
ed. This seven year period is hereafter dollar amount] per occurrence and [insert:
referred to as the ‘‘pay-in-period.’’ The dollar amount] annual aggregate arising
amount of each payment must be de- from operating (an) underground storage
termined by this formula: tank(s).
Underground storage tanks at the fol-
TF¥CF lowing facilities are assured by this local
government fund mechanism: [List for each
Y facility: the name and address of the facility
where tanks are assured by the local govern-
ment fund].
Where TF is the total required finan- [Insert: ‘‘The local government fund is
cial assurance for the owner or oper- funded for the full amount of coverage re-
ator, CF is the current amount in the quired under § 280.93, or funded for part of the
fund, and Y is the number of years required amount of coverage and used in
remaining in the pay-in-period, and; combination with other mechanism(s) that
(1) The local government owner or provide the remaining coverage.’’ or ‘‘The
operator has available bonding author- local government fund is funded for ten
times the full amount of coverage required
ity, approved through voter ref- under § 280.93, or funded for part of the re-
erendum (if such approval is necessary quired amount of coverage and used in com-
prior to the issuance of bonds), for an bination with other mechanisms(s) that pro-
amount equal to the difference between vide the remaining coverage,’’ or ‘‘A pay-
the required amount of coverage and ment is made to the fund once every year for
the amount held in the dedicated fund. seven years until the fund is fully-funded and
This bonding authority shall be avail- [name of local government owner or oper-
ator] has available bonding authority, ap-
able for taking corrective action and proved through voter referendum, of an
for compensating third parties for bod- amount equal to the difference between the
ily injury and property damage caused required amount of coverage and the amount
by accidental releases arising from the held in the dedicated fund’’ or ‘‘A payment is
operation of petroleum underground made to the fund once every year for seven
storage tanks, or years until the fund is fully-funded and I
(2) The local government owner or have attached a letter signed by the State
Attorney General stating that (1) the use of
operator has a letter signed by the ap- the bonding authority will not increase the
propriate state attorney general stat- local government’s debt beyond the legal
ing that the use of the bonding author- debt ceilings established by the relevant
ity will not increase the local govern- state laws and (2) that prior voter approval
ment’s debt beyond the legal debt ceil- is not necessary before use of the bonding
ings established by the relevant state authority’’].
laws. The letter must also state that The details of the local government fund
are as follows:
prior voter approval is not necessary Amount in Fund (market value of fund at
before use of the bonding authority. close of last fiscal year): lllllllll
(d) To demonstrate that it meets the [If fund balance is incrementally funded as
requirements of the local government specified in § 280.107(c), insert:
fund, the chief financial officer of the Amount added to fund in the most recently
local government owner or operator completed fiscal year: lllllllllll
and/or guarantor must sign a letter Number of years remaining in the pay-in pe-
riod: llll]
worded exactly as follows, except that
the instructions in brackets are to be A copy of the state constitutional provi-
sion, or local government statute, charter,
replaced by the relevant information ordinance or order dedicating the fund is at-
and the brackets deleted: tached.
LETTER FROM CHIEF FINANCIAL OFFICER I hereby certify that the wording of this
letter is identical to the wording specified in
I am the chief financial officer of [insert: 40 CFR 280.107(d) as such regulations were
name and address of local government owner constituted on the date shown immediately
or operator, or guarantor]. This letter is in below.
support of the use of the local government [Date]
fund mechanism to demonstrate financial re- [Signature]
sponsibility for [insert: ‘‘taking corrective [Name]
517
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§ 280.108 40 CFR Ch. I (7–1–05 Edition)
[Title] erage as specified in this section within
[58 FR 9059, Feb. 18, 1993] 60 days after receipt of the notice of
termination. If the owner or operator
§ 280.108 Substitution of financial as- fails to obtain alternate coverage with-
surance mechanisms by owner or in 60 days after receipt of the notice of
operator. termination, the owner or operator
(a) An owner or operator may sub- must notify the Director of the imple-
stitute any alternate financial assur- menting agency of such failure and
ance mechanisms as specified in this submit:
subpart, provided that at all times he (1) The name and address of the pro-
maintains an effective financial assur- vider of financial assurance;
ance mechanism or combination of (2) The effective date of termination;
mechanisms that satisfies the require- and
ments of § 280.93. (3) The evidence of the financial as-
(b) After obtaining alternate finan- sistance mechanism subject to the ter-
cial assurance as specified in this sub- mination maintained in accordance
part, an owner or operator may cancel with § 280.107(b).
a financial assurance mechanism by
providing notice to the provider of fi- [58 FR 9051, Feb. 18, 1993]
nancial assurance.
§ 280.110 Reporting by owner or oper-
[53 FR 43370, Oct. 26, 1988. Redesignated at 58 ator.
FR 9051, Feb. 18, 1993]
(a) An owner or operator must sub-
§ 280.109 Cancellation or nonrenewal mit the appropriate forms listed in
by a provider of financial assur- § 280.111(b) documenting current evi-
ance. dence of financial responsibility to the
(a) Except as otherwise provided, a Director of the implementing agency:
provider of financial assurance may (1) Within 30 days after the owner or
cancel or fail to renew an assurance operator identifies a release from an
mechanism by sending a notice of ter- underground storage tank required to
mination by certified mail to the be reported under § 280.53 or § 280.61;
owner or operator. (2) If the owner or operator fails to
(1) Termination of a local govern- obtain alternate coverage as required
ment guarantee, a guarantee, a surety by this subpart, within 30 days after
bond, or a letter of credit may not the owner or operator receives notice
occur until 120 days after the date on of:
which the owner or operator receives (i) Commencement of a voluntary or
the notice of termination, as evidenced involuntary proceeding under Title 11
by the return receipt. (Bankruptcy), U.S. Code, naming a pro-
(2) Termination of insurance or risk vider of financial assurance as a debt-
retention coverage, except for non-pay- or,
ment or misrepresentation by the in- (ii) Suspension or revocation of the
sured, or state-funded assurance may authority of a provider of financial as-
not occur until 60 days after the date surance to issue a financial assurance
on which the owner or operator re- mechanism,
ceives the notice of termination, as (iii) Failure of a guarantor to meet
evidenced by the return receipt. Termi- the requirements of the financial test,
nation for non-payment of premium or (iv) Other incapacity of a provider of
misrepresentation by the insured may financial assurance; or
not occur until a minimum of 10 days (3) As required by § 280.95(g) and
after the date on which the owner or § 280.109(b).
operator receives the notice of termi- (b) An owner or operator must certify
nation, as evidenced by the return re- compliance with the financial responsi-
ceipt. bility requirements of this part as
(b) If a provider of financial responsi- specified in the new tank notification
bility cancels or fails to renew for rea- form when notifying the appropriate
sons other than incapacity of the pro- state or local agency of the installa-
vider as specified in § 280.114, the owner tion of a new underground storage tank
or operator must obtain alternate cov- under § 280.22.
518
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Environmental Protection Agency § 280.111
(c) The Director of the Implementing within the last twelve months by
Agency may require an owner or oper- Moody’s or Standard & Poor’s.
ator to submit evidence of financial as- (6) A local government owner or oper-
surance as described in § 280.111(b) or ator using the local government guar-
other information relevant to compli- antee under § 280.106, where the guaran-
ance with this subpart at any time. tor’s demonstration of financial re-
[58 FR 9051, Feb. 18, 1993] sponsibility relies on the bond rating
test under § 280.104 must maintain a
§ 280.111 Recordkeeping. copy of the guarantor’s bond rating
(a) Owners or operators must main- published within the last twelve
tain evidence of all financial assurance months by Moody’s or Standard &
mechanisms used to demonstrate fi- Poor’s.
nancial responsibility under this sub- (7) An owner or operator using an in-
part for an underground storage tank surance policy or risk retention group
until released from the requirements of coverage must maintain a copy of the
this subpart under § 208.113. An owner signed insurance policy or risk reten-
or operator must maintain such evi- tion group coverage policy, with the
dence at the underground storage tank endorsement or certificate of insurance
site or the owner’s or operator’s place and any amendments to the agree-
of work. Records maintained off-site ments.
must be made available upon request of (8) An owner or operator covered by a
the implementing agency. state fund or other state assurance
(b) An owner or operator must main- must maintain on file a copy of any
tain the following types of evidence of evidence of coverage supplied by or re-
financial responsibility: quired by the state under § 280.101(d).
(1) An owner or operator using an as- (9) An owner or operator using a local
surance mechanism specified in §§ 280.95 government fund under § 280.107 must
through 280.100 or § 280.102 or §§ 280.104 maintain the following documents:
through 280.107 must maintain a copy (i) A copy of the state constitutional
of the instrument worded as specified. provision or local government statute,
(2) An owner or operator using a fi- charter, ordinance, or order dedicating
nancial test or guarantee, or a local the fund, and
government financial test or a local
(ii) Year-end financial statements for
government guarantee supported by
the most recent completed financial re-
the local government financial test
porting year showing the amount in
must maintain a copy of the chief fi-
the fund. If the fund is established
nancial officer’s letter based on year-
under § 280.107(a)(3) using incremental
end financial statements for the most
recent completed financial reporting funding backed by bonding authority,
year. Such evidence must be on file no the financial statements must show
later than 120 days after the close of the previous year’s balance, the
the financial reporting year. amount of funding during the year, and
(3) An owner or operator using a the closing balance in the fund.
guarantee, surety bond, or letter of (iii) If the fund is established under
credit must maintain a copy of the § 280.107(a)(3) using incremental funding
signed standby trust fund agreement backed by bonding authority, the
and copies of any amendments to the owner or operator must also maintain
agreement. documentation of the required bonding
(4) A local government owner or oper- authority, including either the results
ator using a local government guar- of a voter referendum (under
antee under § 280.106(d) must maintain § 280.107(a)(3)(i)), or attestation by the
a copy of the signed standby trust fund State Attorney General as specified
agreement and copies of any amend- under § 280.107(a)(3)(ii).
ments to the agreement. (10) A local government owner or op-
(5) A local government owner or oper- erator using the local government
ator using the local government bond guarantee supported by the local gov-
rating test under § 280.104 must main- ernment fund must maintain a copy of
tain a copy of its bond rating published the guarantor’s year-end financial
519
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§ 280.112 40 CFR Ch. I (7–1–05 Edition)
statements for the most recent com- (ii) The Director determines or sus-
pleted financial reporting year showing pects that a release from an under-
the amount of the fund. ground storage tank covered by the
(11)(i) An owner or operator using an mechanism has occurred and so noti-
assurance mechanism specified in fies the owner or operator or the owner
§§ 280.95 through 280.107 must maintain or operator has notified the Director
an updated copy of a certification of fi- pursuant to subparts E or F of a release
nancial responsibility worded as fol- from an underground storage tank cov-
lows, except that instructions in brack- ered by the mechanism; or
ets are to be replaced with the relevant (2) The conditions of paragraph (b)(1)
information and the brackets deleted: or (b)(2) (i) or (ii) of this section are
satisfied.
CERTIFICATION OF FINANCIAL RESPONSIBILITY (b) The Director of the implementing
[Owner or operator] hereby certifies that it agency may draw on a standby trust
is in compliance with the requirements of fund when:
subpart H of 40 CFR part 280. (1) The Director makes a final deter-
The financial assurance mechanism(s) used mination that a release has occurred
to demonstrate financial responsibility
and immediate or long-term corrective
under subpart H of 40 CFR part 280 is (are) as
follows: action for the release is needed, and
[For each mechanism, list the type of the owner or operator, after appro-
mechanism, name of issuer, mechanism priate notice and opportunity to com-
number (if applicable), amount of coverage, ply, has not conducted corrective ac-
effective period of coverage and whether the tion as required under 40 CFR part 280,
mechanism covers ‘‘taking corrective ac- subpart F; or
tion’’ and/or ‘‘compensating third parties for (2) The Director has received either:
bodily injury and property damage caused (i) Certification from the owner or
by’’ either ‘‘sudden accidental releases’’ or
operator and the third-party liability
‘‘nonsudden accidental releases’’ or ‘‘acci-
dental releases.’’] claimant(s) and from attorneys rep-
resenting the owner or operator and
[Signature of owner or operator]
[Name of owner or operator] the third-party liability claimant(s)
[Title] that a third-party liability claim
[Date] should be paid. The certification must
[Signature of witness or notary] be worded as follows, except that in-
[Name of witness or notary] structions in brackets are to be re-
[Date] placed with the relevant information
(ii) The owner or operator must update and the brackets deleted:
this certification whenever the financial as-
surance mechanism(s) used to demonstrate CERTIFICATION OF VALID CLAIM
financial responsibility change(s). The undersigned, as principals and as legal
[58 FR 9051, Feb. 18, 1993] representatives of [insert: owner or operator]
and [insert: name and address of third-party
§ 280.112 Drawing on financial assur- claimant], hereby certify that the claim of
ance mechanisms. bodily injury [and/or] property damage
caused by an accidental release arising from
(a) Except as specified in paragraph operating [owner’s or operator’s] under-
(d) of this section, the Director of the ground storage tank should be paid in the
implementing agency shall require the amount of $[llllll].
guarantor, surety, or institution [Signatures]
Owner or Operator
issuing a letter of credit to place the
Attorney for Owner or Operator
amount of funds stipulated by the Di- (Notary)
rector, up to the limit of funds pro- Date
vided by the financial assurance mech- [Signatures]
anism, into the standby trust if: Claimant(s)
(1)(i) The owner or operator fails to Attorney(s) for Claimant(s)
establish alternate financial assurance (Notary)
Date
within 60 days after receiving notice of
or (ii) A valid final court order establishing
cancellation of the guarantee, surety a judgment against the owner or operator for
bond, letter of credit, or, as applicable, bodily injury or property damage caused by
other financial assurance mechanism; an accidental release from an underground
and storage tank covered by financial assurance
520
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Environmental Protection Agency § 280.114
under this subpart and the Director deter- (b) Within 10 days after commence-
mines that the owner or operator has not ment of a voluntary or involuntary
satisfied the judgment. proceeding under Title 11 (Bank-
(c) If the Director of the imple- ruptcy), U.S. Code, naming a guarantor
menting agency determines that the providing financial assurance as debt-
amount of corrective action costs and or, such guarantor must notify the
third-party liability claims eligible for owner or operator by certified mail of
payment under paragraph (b) of this such commencement as required under
section may exceed the balance of the the terms of the guarantee specified in
standby trust fund and the obligation § 280.96.
of the provider of financial assurance, (c) Within 10 days after commence-
the first priority for payment shall be ment of a voluntary or involuntary
corrective action costs necessary to proceeding under Title 11 (Bank-
protect human health and the environ- ruptcy), U.S. Code, naming a local gov-
ment. The Director shall pay third- ernment owner or operator as debtor,
party liability claims in the order in the local government owner or oper-
which the Director receives certifi- ator must notify the Director of the
cations under paragraph (b)(2)(i) of this implementing agency by certified mail
section, and valid court orders under of such commencement and submit the
paragraph (b)(2)(ii) of this section. appropriate forms listed in § 280.111(b)
documenting current financial respon-
(d) A governmental entity acting as
sibility.
guarantor under § 280.106(e), the local
(d) Within 10 days after commence-
government guarantee without standby
ment of a voluntary or involuntary
trust, shall make payments as directed
proceeding under Title 11 (Bank-
by the Director under the cir-
ruptcy), U.S. Code, naming a guarantor
cumstances described in § 280.112 (a),
providing a local government financial
(b), and (c).
assurance as debtor, such guarantor
[58 FR 9052, Feb. 18, 1993] must notify the local government
owner or operator by certified mail of
§ 280.113 Release from the require- such commencement as required under
ments. the terms of the guarantee specified in
An owner or operator is no longer re- § 280.106.
quired to maintain financial responsi- (e) An owner or operator who obtains
bility under this subpart for an under- financial assurance by a mechanism
ground storage tank after the tank has other than the financial test of self-in-
been properly closed or, if corrective surance will be deemed to be without
action is required, after corrective ac- the required financial assurance in the
tion has been completed and the tank event of a bankruptcy or incapacity of
has been properly closed as required by its provider of financial assurance, or a
40 CFR part 280, subpart G. suspension or revocation of the author-
ity of the provider of financial assur-
[53 FR 43370, Oct. 26, 1988. Redesignated at 58 ance to issue a guarantee, insurance
FR 9051, Feb. 18, 1993] policy, risk retention group coverage
policy, surety bond, letter of credit, or
§ 280.114 Bankruptcy or other inca- state-required mechanism. The owner
pacity of owner or operator or pro- or operator must obtain alternate fi-
vider of financial assurance.
nancial assurance as specified in this
(a) Within 10 days after commence- subpart within 30 days after receiving
ment of a voluntary or involuntary notice of such an event. If the owner or
proceeding under Title 11 (Bank- operator does not obtain alternate cov-
ruptcy), U.S. Code, naming an owner or erage within 30 days after such notifi-
operator as debtor, the owner or oper- cation, he must notify the Director of
ator must notify the Director of the the implementing agency.
implementing agency by certified mail (f) Within 30 days after receipt of no-
of such commencement and submit the tification that a state fund or other
appropriate forms listed in § 280.111(b) state assurance has become incapable
documenting current financial respon- of paying for assured corrective action
sibility. or third-party compensation costs, the
521
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§ 280.115 40 CFR Ch. I (7–1–05 Edition)
owner or operator must obtain alter- (2) Petroleum refining means the
nate financial assurance. cracking, distillation, separation, con-
version, upgrading, and finishing of re-
[58 FR 9053, Feb. 18, 1993]
fined petroleum or petroleum products.
§ 280.115 Replenishment of guarantees, (3) Petroleum marketing means the dis-
letters of credit, or surety bonds. tribution, transfer, or sale of petro-
(a) If at any time after a standby leum or petroleum products for whole-
trust is funded upon the instruction of sale or retail purposes.
the Director of the implementing agen- (c) Indicia of ownership means evi-
cy with funds drawn from a guarantee, dence of a secured interest, evidence of
local government guarantee with an interest in a security interest, or
standby trust, letter of credit, or sur- evidence of an interest in real or per-
ety bond, and the amount in the stand- sonal property securing a loan or other
by trust is reduced below the full obligation, including any legal or equi-
amount of coverage required, the table title or deed to real or personal
owner or operator shall by the anniver- property acquired through or incident
sary date of the financial mechanism to foreclosure. Evidence of such inter-
from which the funds were drawn: ests include, but are not limited to,
(1) Replenish the value of financial mortgages, deeds of trust, liens, surety
assurance to equal the full amount of bonds and guarantees of obligations,
coverage required, or title held pursuant to a lease financing
(2) Acquire another financial assur- transaction in which the lessor does
ance mechanism for the amount by not select initially the leased property
which funds in the standby trust have (hereinafter ‘‘lease financing trans-
been reduced. action’’), and legal or equitable title
(b) For purposes of this section, the obtained pursuant to foreclosure. Evi-
full amount of coverage required is the dence of such interests also includes
amount of coverage to be provided by assignments, pledges, or other rights to
§ 280.93 of this subpart. If a combination or other forms of encumbrance against
of mechanisms was used to provide the property that are held primarily to
assurance funds which were drawn protect a security interest. A person is
upon, replenishment shall occur by the not required to hold title or a security
earliest anniversary date among the interest in order to maintain indicia of
mechanisms. ownership.
[58 FR 9053, Feb. 18, 1993] (d) A holder is a person who, upon the
effective date of this regulation or in
§ 280.116 Suspension of enforcement. the future, maintains indicia of owner-
[Reserved] ship (as defined in § 280.200(c)) pri-
marily to protect a security interest
Subpart I—Lender Liability (as defined in § 280.200(f)(1)) in a petro-
leum UST or UST system or facility or
SOURCE: 60 FR 46711, Sept. 7, 1995, unless property on which a petroleum UST or
otherwise noted. UST system is located. A holder in-
cludes the initial holder (such as a loan
§ 280.200 Definitions. originator); any subsequent holder
(a) UST technical standards, as used in (such as a successor-in-interest or sub-
this subpart, refers to the UST pre- sequent purchaser of the security in-
ventative and operating requirements terest on the secondary market); a
under 40 CFR part 280, subparts B, C, D, guarantor of an obligation, surety, or
G, and § 280.50 of subpart E. any other person who holds ownership
(b) Petroleum production, refining, and indicia primarily to protect a security
marketing. interest; or a receiver or other person
(1) Petroleum production means the who acts on behalf or for the benefit of
production of crude oil or other forms a holder.
of petroleum (as defined in § 280.12) as (e) A borrower, debtor, or obligor is a
well as the production of petroleum person whose UST or UST system or
products from purchased materials. facility or property on which the UST
522
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Environmental Protection Agency § 280.210
or UST system is located is encum- (a) Actions that are participation in
bered by a security interest. These management.
terms may be used interchangeably. (1) Participation in the management
(f) Primarily to protect a security inter- of an UST or UST system means, for
est means that the holder’s indicia of purposes of this subpart, actual partici-
ownership are held primarily for the pation by the holder in the manage-
purpose of securing payment or per- ment or control of decisionmaking re-
formance of an obligation. lated to the operation of an UST or
(1) Security interest means an interest UST system. Participation in manage-
in a petroleum UST or UST system or ment does not include the mere capac-
in the facility or property on which a ity or ability to influence or the
petroleum UST or UST system is lo- unexercised right to control UST or
cated, created or established for the UST system operations. A holder is
purpose of securing a loan or other ob- participating in the management of the
ligation. Security interests include but UST or UST system only if the holder
are not limited to mortgages, deeds of either:
trusts, liens, and title pursuant to (i) Exercises decisionmaking control
lease financing transactions. Security over the operational (as opposed to fi-
interests may also arise from trans- nancial or administrative) aspects of
actions such as sale and leasebacks, the UST or UST system, such that the
conditional sales, installment sales, holder has undertaken responsibility
trust receipt transactions, certain as- for all or substantially all of the man-
signments, factoring agreements, ac- agement of the UST or UST system; or
counts receivable financing arrange- (ii) Exercises control at a level com-
ments, and consignments, if the trans- parable to that of a manager of the
action creates or establishes an inter- borrower’s enterprise, such that the
est in an UST or UST system or in the holder has assumed or manifested re-
sponsibility for the overall manage-
facility or property on which the UST
ment of the enterprise encompassing
or UST system is located, for the pur-
the day-to-day decisionmaking of the
pose of securing a loan or other obliga-
enterprise with respect to all, or sub-
tion.
stantially all, of the operational (as op-
(2) Primarily to protect a security inter- posed to financial or administrative)
est, as used in this subpart, does not in- aspects of the enterprise.
clude indicia of ownership held pri- (2) Operational aspects of the enter-
marily for investment purposes, nor prise relate to the use, storage, filling,
ownership indicia held primarily for or dispensing of petroleum contained in
purposes other than as protection for a an UST or UST system, and include
security interest. A holder may have functions such as that of a facility or
other, secondary reasons for maintain- plant manager, operations manager,
ing indicia of ownership, but the pri- chief operating officer, or chief execu-
mary reason why any ownership indi- tive officer. Financial or administra-
cia are held must be as protection for a tive aspects include functions such as
security interest. that of a credit manager, accounts pay-
(g) Operation means, for purposes of able/receivable manager, personnel
this subpart, the use, storage, filling, manager, controller, chief financial of-
or dispensing of petroleum contained in ficer, or similar functions. Operational
an UST or UST system. aspects of the enterprise do not include
the financial or administrative aspects
§ 280.210 Participation in manage- of the enterprise, or actions associated
ment. with environmental compliance, or ac-
The term ‘‘participating in the man- tions undertaken voluntarily to pro-
agement of an UST or UST system’’ tect the environment in accordance
means that, subsequent to the effective with applicable requirements in 40 CFR
date of this subpart, December 6, 1995, part 280 or applicable state require-
the holder is engaging in decision- ments in those states that have been
making control of, or activities related delegated authority by EPA to admin-
to, operation of the UST or UST sys- ister the UST program pursuant to 42
tem, as defined herein. USC 6991c and 40 CFR part 281.
523
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§ 280.210 40 CFR Ch. I (7–1–05 Edition)
(b) Actions that are not participation tem during the term of the security in-
in management pre-foreclosure. terest; requiring the borrower to com-
(1) Actions at the inception of the ply or come into compliance with ap-
loan or other transaction. No act or plicable federal, state, and local envi-
omission prior to the time that indicia ronmental and other laws, rules, and
of ownership are held primarily to pro- regulations during the term of the se-
tect a security interest constitutes evi- curity interest; securing or exercising
dence of participation in management authority to monitor or inspect the
within the meaning of this subpart. A UST or UST system or facility or prop-
prospective holder who undertakes or erty on which the UST or UST system
requires an environmental investiga- is located (including on-site inspec-
tion (which could include a site assess- tions) in which indicia of ownership are
ment, inspection, and/or audit) of the maintained, or the borrower’s business
UST or UST system or facility or prop- or financial condition during the term
erty on which the UST or UST system of the security interest; or taking
is located (in which indicia of owner- other actions to adequately police the
ship are to be held), or requires a pro- loan or security interest (such as re-
spective borrower to clean up contami- quiring a borrower to comply with any
nation from the UST or UST system or warranties, covenants, conditions, rep-
to comply or come into compliance resentations, or promises from the bor-
(whether prior or subsequent to the rower).
time that indicia of ownership are held (B) Policing activities also include
primarily to protect a security inter- undertaking by the holder of UST envi-
est) with any applicable law or regula- ronmental compliance actions and vol-
tion, is not by such action considered untary environmental actions taken in
to be participating in the management compliance with 40 CFR part 280, pro-
of the UST or UST system or facility vided that the holder does not other-
or property on which the UST or UST wise participate in the management or
system is located. daily operation of the UST or UST sys-
(2) Loan policing and work out. Ac- tem as provided in § 280.210(a) and
tions that are consistent with holding § 280.230. Such allowable actions in-
ownership indicia primarily to protect clude, but are not limited to, release
a security interest do not constitute detection and release reporting, release
participation in management for pur- response and corrective action, tem-
poses of this subpart. The authority for porary or permanent closure of an UST
the holder to take such actions may, or UST system, UST upgrading or re-
but need not, be contained in contrac- placement, and maintenance of corro-
tual or other documents specifying re- sion protection. A holder who under-
quirements for financial, environ- takes these actions must do so in com-
mental, and other warranties, cov- pliance with the applicable require-
enants, conditions, representations or ments in 40 CFR part 280 or applicable
promises from the borrower. Loan po- state requirements in those states that
licing and work out activities cover have been delegated authority by EPA
and include all such activities up to to administer the UST program pursu-
foreclosure, exclusive of any activities ant to 42 U.S.C. 6991c and 40 CFR part
that constitute participation in man- 281. A holder may directly oversee
agement. these environmental compliance ac-
(i) Policing the security interest or tions and voluntary environmental ac-
loan. tions, and directly hire contractors to
(A) A holder who engages in policing perform the work, and is not by such
activities prior to foreclosure will re- action considered to be participating in
main within the exemption provided the management of the UST or UST
that the holder does not together with system.
other actions participate in the man- (ii) Loan work out. A holder who en-
agement of the UST or UST system as gages in work out activities prior to
provided in § 280.210(a). Such policing foreclosure will remain within the ex-
actions include, but are not limited to, emption provided that the holder does
requiring the borrower to clean up con- not together with other actions par-
tamination from the UST or UST sys- ticipate in the management of the UST
524
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Environmental Protection Agency § 280.210
or UST system as provided in tution of the lessee), or otherwise di-
§ 280.210(a). For purposes of this rule, vest itself of the UST or UST system or
‘‘work out’’ refers to those actions by facility or property on which the UST
which a holder, at any time prior to or UST system is located, in a reason-
foreclosure, seeks to prevent, cure, or ably expeditious manner, using what-
mitigate a default by the borrower or ever commercially reasonable means
obligor; or to preserve, or prevent the are relevant or appropriate with re-
diminution of, the value of the secu- spect to the UST or UST system or fa-
rity. Work out activities include, but cility or property on which the UST or
are not limited to, restructuring or re- UST system is located, taking all facts
negotiating the terms of the security and circumstances into consideration,
interest; requiring payment of addi- and provided that the holder does not
tional rent or interest; exercising for- participate in management (as defined
bearance; requiring or exercising rights in § 280.210(a)) prior to or after fore-
pursuant to an assignment of accounts closure.
or other amounts owing to an obligor; (ii) For purposes of establishing that
requiring or exercising rights pursuant a holder is seeking to sell, re-lease pur-
to an escrow agreement pertaining to suant to a lease financing transaction
amounts owing to an obligor; providing
(whether by a new lease financing
specific or general financial or other
transaction or substitution of the les-
advice, suggestions, counseling, or
see), or divest in a reasonably expedi-
guidance; and exercising any right or
tious manner an UST or UST system or
remedy the holder is entitled to by law
facility or property on which the UST
or under any warranties, covenants,
or UST system is located, the holder
conditions, representations, or prom-
may use whatever commercially rea-
ises from the borrower.
(c) Foreclosure on an UST or UST sonable means as are relevant or appro-
system or facility or property on which priate with respect to the UST or UST
an UST or UST system is located, and system or facility or property on which
participation in management activities the UST or UST system is located, or
post-foreclosure. may employ the means specified in
(1) Foreclosure. (i) Indicia of owner- § 280.210(c)(2). A holder that outbids, re-
ship that are held primarily to protect jects, or fails to act upon a written
a security interest include legal or eq- bona fide, firm offer of fair consider-
uitable title or deed to real or personal ation for the UST or UST system or fa-
property acquired through or incident cility or property on which the UST or
to foreclosure. For purposes of this UST system is located, as provided in
subpart, the term ‘‘foreclosure’’ means § 280.210(c)(2), is not considered to hold
that legal, marketable or equitable indicia of ownership primarily to pro-
title or deed has been issued, approved, tect a security interest.
and recorded, and that the holder has (2) Holding foreclosed property for
obtained access to the UST, UST sys- disposition and liquidation. A holder,
tem, UST facility, and property on who does not participate in manage-
which the UST or UST system is lo- ment prior to or after foreclosure, may
cated, provided that the holder acted sell, re-lease, pursuant to a lease fi-
diligently to acquire marketable title nancing transaction (whether by a new
or deed and to gain access to the UST, lease financing transaction or substi-
UST system, UST facility, and prop- tution of the lessee), an UST or UST
erty on which the UST or UST system system or facility or property on which
is located. The indicia of ownership the UST or UST system is located, liq-
held after foreclosure continue to be uidate, wind up operations, and take
maintained primarily as protection for measures, prior to sale or other dis-
a security interest provided that the position, to preserve, protect, or pre-
holder undertakes to sell, re-lease an pare the secured UST or UST system or
UST or UST system or facility or prop- facility or property on which the UST
erty on which the UST or UST system or UST system is located. A holder
is located, held pursuant to a lease fi- may also arrange for an existing or
nancing transaction (whether by a new new operator to continue or initiate
lease financing transaction or substi- operation of the UST or UST system.
525
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§ 280.210 40 CFR Ch. I (7–1–05 Edition)
The holder may conduct these activi- the facility or property on which the
ties without voiding the security inter- UST or UST system is located, estab-
est exemption, subject to the require- lishes by such outbidding, rejection, or
ments of this subpart. failure to act, that the ownership indi-
(i) A holder establishes that the own- cia in the secured UST or UST system
ership indicia maintained after fore- or facility or property on which the
closure continue to be held primarily UST or UST system is located are not
to protect a security interest by, with- held primarily to protect the security
in 12 months following foreclosure, list- interest, unless the holder is required,
ing the UST or UST system or the fa- in order to avoid liability under federal
cility or property on which the UST or or state law, to make a higher bid, to
UST system is located, with a broker, obtain a higher offer, or to seek or ob-
dealer, or agent who deals with the tain an offer in a different manner.
type of property in question, or by ad- (A) Fair consideration, in the case of
vertising the UST or UST system or fa- a holder maintaining indicia of owner-
cility or property on which the UST or ship primarily to protect a senior secu-
UST system is located, as being for rity interest in the UST or UST system
sale or disposition on at least a month- or facility or property on which the
ly basis in either a real estate publica- UST or UST system is located, is the
tion or a trade or other publication value of the security interest as de-
suitable for the UST or UST system or fined in this section. The value of the
facility or property on which the UST security interest includes all debt and
or UST system is located, or a news- costs incurred by the security interest
paper of general circulation (defined as holder, and is calculated as an amount
one with a circulation over 10,000, or equal to or in excess of the sum of the
one suitable under any applicable fed- outstanding principal (or comparable
eral, state, or local rules of court for amount in the case of a lease that con-
publication required by court order or stitutes a security interest) owed to
rules of civil procedure) covering the the holder immediately preceding the
location of the UST or UST system or acquisition of full title (or possession
facility or property on which the UST in the case of a lease financing trans-
or UST system is located. For purposes action) pursuant to foreclosure, plus
of this provision, the 12-month period any unpaid interest, rent, or penalties
begins to run from December 6, 1995 or (whether arising before or after fore-
from the date that the marketable title closure). The value of the security in-
or deed has been issued, approved and terest also includes all reasonable and
recorded, and the holder has obtained necessary costs, fees, or other charges
access to the UST, UST system, UST incurred by the holder incident to work
facility and property on which the UST out, foreclosure, retention, preserving,
or UST system is located, whichever is protecting, and preparing, prior to sale,
later, provided that the holder acted the UST or UST system or facility or
diligently to acquire marketable title property on which the UST or UST sys-
or deed and to obtain access to the tem is located, re-lease, pursuant to a
UST, UST system, UST facility and lease financing transaction (whether
property on which the UST or UST sys- by a new lease financing transaction or
tem is located. If the holder fails to act substitution of the lessee), of an UST
diligently to acquire marketable title or UST system or facility or property
or deed or to gain access to the UST or on which the UST or UST system is lo-
UST system, the 12-month period be- cated, or other disposition. The value
gins to run from December 6, 1995 or of the security interest also includes
from the date on which the holder first environmental investigation costs
acquires either title to or possession of (which could include a site assessment,
the secured UST or UST system, or fa- inspection, and/or audit of the UST or
cility or property on which the UST or UST system or facility or property on
UST system is located, whichever is which the UST or UST system is lo-
later. cated), and corrective action costs in-
(ii) A holder that outbids, rejects, or curred under §§ 280.51 through 280.67 or
fails to act upon an offer of fair consid- any other costs incurred as a result of
eration for the UST or UST system or reasonable efforts to comply with any
526
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Environmental Protection Agency § 280.220
other applicable federal, state or local possession of the secured UST or UST
law or regulation; less any amounts re- system, or facility or property on
ceived by the holder in connection with which the UST or UST system is lo-
any partial disposition of the property cated, whichever is later.
and any amounts paid by the borrower (3) Actions that are not participation
(if not already applied to the bor- in management post-foreclosure. A
rower’s obligations) subsequent to the holder is not considered to be partici-
acquisition of full title (or possession pating in the management of an UST
in the case of a lease financing trans- or UST system or facility or property
action) pursuant to foreclosure. In the on which the UST or UST system is lo-
case of a holder maintaining indicia of cated when undertaking actions under
ownership primarily to protect a junior 40 CFR part 280, provided that the hold-
security interest, fair consideration is er does not otherwise participate in the
the value of all outstanding higher pri- management or daily operation of the
ority security interests plus the value UST or UST system as provided in
of the security interest held by the jun- § 280.210(a) and § 280.230. Such allowable
ior holder, each calculated as set forth actions include, but are not limited to,
in this paragraph. release detection and release reporting,
(B) Outbids, rejects, or fails to act release response and corrective action,
upon an offer of fair consideration temporary or permanent closure of an
means that the holder outbids, rejects, UST or UST system, UST upgrading or
or fails to act upon within 90 days of replacement, and maintenance of cor-
receipt, a written, bona fide, firm offer rosion protection. A holder who under-
of fair consideration for the UST or takes these actions must do so in com-
UST system or facility or property on pliance with the applicable require-
which the UST or UST system is lo- ments in 40 CFR part 280 or applicable
cated received at any time after six state requirements in those states that
months following foreclosure, as de- have been delegated authority by EPA
fined in § 280.210(c). A ‘‘written, bona to administer the UST program pursu-
fide, firm offer’’ means a legally en- ant to 42 U.S.C. 6991c and 40 CFR part
forceable, commercially reasonable, 281. A holder may directly oversee
cash offer solely for the foreclosed UST these environmental compliance ac-
or UST system or facility or property tions and voluntary environmental ac-
on which the UST or UST system is lo- tions, and directly hire contractors to
cated, including all material terms of perform the work, and is not by such
the transaction, from a ready, willing, action considered to be participating in
and able purchaser who demonstrates the management of the UST or UST
to the holder’s satisfaction the ability system.
to perform. For purposes of this provi- § 280.220 Ownership of an under-
sion, the six-month period begins to ground storage tank or under-
run from December 6, 1995 or from the ground storage tank system or facil-
date that marketable title or deed has ity or property on which an under-
been issued, approved and recorded to ground storage tank or under-
the holder, and the holder has obtained ground storage tank system is lo-
access to the UST, UST system, UST cated.
facility and property on which the UST Ownership of an UST or UST system
or UST system is located, whichever is or facility or property on which an
later, provided that the holder was act- UST or UST system is located. A hold-
ing diligently to acquire marketable er is not an ‘‘owner’’ of a petroleum
title or deed and to obtain access to UST or UST system or facility or prop-
the UST or UST system, UST facility erty on which a petroleum UST or UST
and property on which the UST or UST system is located for purposes of com-
system is located. If the holder fails to pliance with the UST technical stand-
act diligently to acquire marketable ards as defined in § 280.200(a), the UST
title or deed or to gain access to the corrective action requirements under
UST or UST system, the six-month pe- §§ 280.51 through 280.67, and the UST fi-
riod begins to run from December 6, nancial responsibility requirements
1995 or from the date on which the under §§ 280.90 through 280.111, provided
holder first acquires either title to or the person:
527
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§ 280.230 40 CFR Ch. I (7–1–05 Edition)
(a) Does not participate in the man- (i) Empties all of its known USTs and
agement of the UST or UST system as UST systems within 60 calendar days
defined in § 280.210; and after foreclosure or within 60 calendar
(b) Does not engage in petroleum pro- days after December 6, 1995, whichever
duction, refining, and marketing as de- is later, or another reasonable time pe-
fined in § 280.200(b). riod specified by the implementing
agency, so that no more than 2.5 centi-
§ 280.230 Operating an underground meters (one inch) of residue, or 0.3 per-
storage tank or underground stor- cent by weight of the total capacity of
age tank system. the UST system, remains in the sys-
(a) Operating an UST or UST system tem; leaves vent lines open and func-
prior to foreclosure. A holder, prior to tioning; and caps and secures all other
foreclosure, as defined in § 280.210(c), is lines, pumps, manways, and ancillary
not an ‘‘operator’’ of a petroleum UST equipment; and
or UST system for purposes of compli- (ii) Empties those USTs and UST sys-
ance with the UST technical standards tems that are discovered after fore-
as defined in § 280.200(a), the UST cor- closure within 60 calendar days after
rective action requirements under discovery or within 60 calendar days
§§ 280.51 through 280.67, and the UST fi- after December 6, 1995, whichever is
nancial responsibility requirements later, or another reasonable time pe-
under §§ 280.90 through 280.111, provided riod specified by the implementing
that, after December 6, 1995, the holder agency, so that no more than 2.5 centi-
is not in control of or does not have re- meters (one inch) of residue, or 0.3 per-
sponsibility for the daily operation of cent by weight of the total capacity of
the UST or UST system. the UST system, remains in the sys-
(b) Operating an UST or UST system tem; leaves vent lines open and func-
after foreclosure. The following provi- tioning; and caps and secures all other
sions apply to a holder who, through lines, pumps, manways, and ancillary
foreclosure, as defined in § 280.210(c), equipment.
acquires a petroleum UST or UST sys- (3) If another operator does not exist,
tem or facility or property on which a as provided for under paragraph (b)(1)
petroleum UST or UST system is lo- of this section, in addition to satis-
cated. fying the conditions under paragraph
(1) A holder is not an ‘‘operator’’ of a (b)(2) of this section, the holder must
petroleum UST or UST system for pur- either:
poses of compliance with 40 CFR part (i) Permanently close the UST or
280 if there is an operator, other than UST system in accordance with §§ 280.71
the holder, who is in control of or has through 280.74, except § 280.72(b); or
responsibility for the daily operation of (ii) Temporarily close the UST or
the UST or UST system, and who can UST system in accordance with the fol-
be held responsible for compliance with lowing applicable provisions of § 280.70:
applicable requirements of 40 CFR part (A) Continue operation and mainte-
280 or applicable state requirements in nance of corrosion protection in ac-
those states that have been delegated cordance with § 280.31;
authority by EPA to administer the (B) Report suspected releases to the
UST program pursuant to 42 U.S.C. implementing agency; and
6991c and 40 CFR part 281. (C) Conduct a site assessment in ac-
(2) If another operator does not exist, cordance with § 280.72(a) if the UST sys-
as provided for under paragraph (b)(1) tem is temporarily closed for more
of this section, a holder is not an ‘‘op- than 12 months and the UST system
erator’’ of the UST or UST system, for does not meet either the performance
purposes of compliance with the UST standards in § 280.20 for new UST sys-
technical standards as defined in tems or the upgrading requirements in
§ 280.200(a), the UST corrective action § 280.21, except that the spill and over-
requirements under §§ 280.51 through fill equipment requirements do not
280.67, and the UST financial responsi- have to be met. The holder must report
bility requirements under §§ 280.90 any suspected releases to the imple-
through 280.111, provided that the hold- menting agency. For purposes of this
er: provision, the 12-month period begins
528
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Environmental Protection Agency § 280.230
to run from December 6, 1995 or from title to the UST or UST system or fa-
the date on which the UST system is cility or property on which the UST or
emptied and secured under paragraph UST system is located, the purchaser
(b)(2) of this section, whichever is must decide whether to operate or
later. close the UST or UST system in ac-
(4) The UST system can remain in cordance with applicable requirements
temporary closure until a subsequent in 40 CFR part 280 or applicable state
purchaser has acquired marketable requirements in those states that have
title to the UST or UST system or fa-
been delegated authority by EPA to ad-
cility or property on which the UST or
minister the UST program pursuant to
UST system is located. Once a subse-
42 U.S.C. 6991c and 40 CFR part 281.
quent purchaser acquires marketable
529
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Pt. 280, App. I 40 CFR Ch. I (7–1–05 Edition)
APPENDIX I TO PART 280—NOTIFICATION FOR UNDERGROUND STORAGE TANKS (FORM)
530
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Environmental Protection Agency Pt. 280, App. I
531
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Pt. 280, App. II 40 CFR Ch. I (7–1–05 Edition)
APPENDIX II TO PART 280—LIST OF gressman W.L. Dickinson Drive, Mont-
AGENCIES DESIGNATED TO RECEIVE gomery, Alabama 36130, 205/271–7823
NOTIFICATIONS Alaska (EPA Form), Department of Environ-
mental Conservation, Box 0, Juneau, Alas-
Alabama (EPA Form), Alabama Department ka 99811–1800, 970/465–2653
of Environmental Management, Ground
Water Section/Water Division, 1751 Con-
532
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Environmental Protection Agency Pt. 280, App. II
American Samoa (EPA Form), Executive Indiana (EPA Form), Underground Storage
Secretary, Environmental Quality Com- Tank Program, Office of Environmental
mission, Office of the Governor, American Response, Indiana Department of Environ-
Samoan Government, Pago Pago, Amer- mental Management, 105 South Meridian
ican Samoa 96799; Attention: UST Notifica- Street, Indianapolis, Indiana 46225
tion Iowa (State Form), UST Coordinator, Iowa
Arizona (EPA Form), Attention: UST Coordi- Department of Natural Resources, Henry
nator, Arizona Department of Environ- A. Wallace Building, 900 East Grand, Des
mental Quality, Environmental Health Moines, Iowa 50219, 512/281–8135
Services, 2005 N. Central, Phoenix, Arizona Kansas (EPA Form), Kansas Department of
85004 Health and Environment, Forbes Field,
Arkansas (EPA Form), Arkansas Depart- Building 740, Topeka, Kansas 66620, 913/296–
ment of Pollution Control and Ecology, 1594
P.O. Box 9583, Little Rock, Arkansas 72219, Kentucky (State Form), Department of Envi-
501/562–7444 ronmental Protection, Hazardous Waste
California (State Form), Executive Director, Branch, Fort Boone Plaza, Building #2, 18
State Water Resources Control Board, P.O. Reilly Road, Frankfort, Kentucky 40601,
Box 100, Sacramento, California 95801, 916/ 501/564–6716
445–1533 Louisiana (State Form), Secretary, Lou-
Co1orado (EPA Form), Section Chief, Colo- isiana Department of Environmental Qual-
rado Department of Health, Waste Manage- ity, P.O. Box 44066, Baton Rouge, Louisiana
ment Division, Underground Tank Pro-
70804, 501/342–1265
gram, 4210 East 11th Avenue, Denver, Colo-
Maine (State Form), Attention: Underground
rado 80220, 303/320–8333
Tanks Program, Bureau of Oil and Haz-
Connecticut (State Form), Hazardous Mate-
ardous Material Control, Department of
rials Management Unit, Department of En-
Environmental Protection, State House—
vironmental Protection, State Office
Station 17, Augusta, Maine 04333
Building, 165 Capitol Avenue, Hartford,
Connecticut 06106 Maryland (EPA Form), Science and Health
Delaware (State Form), Division of Air and Advisory Group, Office of Environmental
Waste Management, Department of Nat- Programs, 201 West Preston Street, Balti-
ural Resources and Environmental Con- more, Maryland 21201
trol, P.O. Box 1401, 89 Kings Highway, Massachusetts (EPA Form), UST Registry,
Dover, Delaware 19903, 302/726–5409 Department of Public Safety, 1010 Com-
District of Columbia (EPA Form), Attention: monwealth Avenue, Boston, Massachusetts
UST Notification Form, Department of 02215, 617/566–4500
Consumer and Regulatory Affairs, Pes- Michigan (EPA Form), Michigan Department
ticides and Hazardous Waste Management of State Police, Fire Marshal Division,
Branch, Room 114, 5010 Overlook Avenue General Office Building, 7150 Harris Drive,
SW., Washington, DC 20032 Lansing, Michigan 48913
Florida (State Form), Florida Department of Minnesota (State Form), Underground Stor-
Environmental Regulation, Solid Waste age Tank Program, Division of Solid and
Section, Twin Towers Office Building, 2600 Hazardous Wastes, Minnesota Pollution
Blair Stone Road, Tallahassee, Florida Control Agency, 520 West Lafayette Road,
32399, 904/487–4398 St. Paul, Minnesota 55155
Georgia (EPA Form), Georgia Department of Mississippi (State Form), Department of
Natural Resources, Environmental Protec- Natural Resources, Bureau of Pollution
tion Division, Underground Storage Tank Control, Underground Storage Tank Sec-
Program, 3420 Norman Berry Drive, 7th tion, P.O. Box 10385, Jackson, Mississippi
Floor, Hapeville, Georgia 30354, 404/656–7404 39209, 601/961–5171
Guam (State Form), Administrator, Guam Missouri (EPA Form), UST Coordinator, Mis-
Environmental Protection Agency, P.O. souri Department of Natural Resources,
Box 2999, Agana, Guam 96910, Overseas Op- P.O. Box 176, Jefferson City, Missouri 65102,
erator (Commercial call 646–8863) 314/751–7428
Hawaii (EPA Form), Administrator, Haz- Montana (EPA Form), Solid and Hazardous
ardous Waste Program, 645 Halekauwila Waste Bureau, Department of Health and
Street, Honolulu, Hawaii 96813, 808/548–2270 Environmental Science, Cogswell Bldg.,
Idaho (EPA Form), Underground Storage Room B–201, Helena, Montana 59620
Tank Coordinator, Water Quality Bureau, Nebraska (EPA Form), Nebraska State Fire
Division of Environmental Quality, Idaho Marshal, P.O. Box 94677, Lincoln, Nebraska
Department of Health and Welfare, 450 W. 68509–4677, 402/471–9465
State Street, Boise, Idaho 83720, 208/334–4251 Nevada (EPA Form), Attention: UST Coordi-
Illinois (EPA Form), Underground Storage nator, Division of Environmental Protec-
Tank Coordinator, Division of Fire Preven- tion, Department of Conservation and Nat-
tion, Office of State Fire Marshal, 3150 Ex- ural Resources, Capitol Complex 201 S. Fall
ecutive Park Drive, Springfield, Illinois Street, Carson City, Nevada 89710, 800/992–
62703–4599 0900, Ext. 4670, 702/885–4670
533
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Pt. 280, App. III 40 CFR Ch. I (7–1–05 Edition)
New Hampshire (EPA Form), NH Dept. of South Dakota (EPA Form), Office of Water
Environmental Services, Water Supply and Quality, Department of Water and Natural
Pollution Control Division, Hazen Drive, Resources, Joe Foss Building, Pierre,
P.O. Box 95, Concord, New Hampshire 03301, South Dakota 57501,
Attention: UST Registration Tennessee (EPA Form), Tennessee Depart-
New Jersey (State Form), Underground Stor- ment of Health and Environment, Division
age Tank Coordinator, Department of En-
of Superfund Underground Storage Tank
vironmental Protection, Division of Water
Section, 150 Ninth Avenue, North, Nash-
Resources (CN–029), Trenton, New Jersey
08625, 609/292–0424 ville, Tennessee 37219–5404, 615/741–0690
New Mexico (EPA Form), New Mexico Envi- Texas (EPA Form), Underground Storage
ronmental Improvement Division, Ground- Tank Program, Texas Water Commission,
water/Hazardous Waste Bureau, P.O. Box P.O. Box 13087, Austin, Texas 78711
968, Santa Fe, New Mexico 37504, 505/827– Utah (EPA Form), Division of Envirormental
2933 Health, P.O. Box 45500, Salt Lake City,
New York (EPA Form), Bulk Storage Sec- Utah 84145–0500
tion, Division of Water, Department of En- Vermont (State Form), Underground Storage
vironmental Conservation, 50 Wolf Road, Tank Program, Vermont AEC/Waste Man-
Room 326, Albany, New York 12233–0001, agement Division, State Office Building,
518/457–4351 Montpelier, Vermont 05602, 802/828–3395
North Carolina (EPA Form), Division of En-
Virginia (EPA Form), Virginia Water Con-
vironmental Management, Ground-Water
Operations Branch, Department of Natural trol Board, P.O. Box 11143, Richmond, Vir-
Resources and Community Development, ginia 23230–1143, 804/257–6685
P.O. Box 27687, Raleigh, North Carolina Virgin Islands (EPA Form), 205(J) Coordi-
27611, 919/733–3221 nator, Division of Natural Resources Man-
North Dakota (State Form), Division of Haz- agement, 14 F Building 111, Watergut
ardous Management and Special Studies, Homes, Christianstead, St. Croix, Virgin
North Dakota Department of Health, Box Islands 00820
5520, Bismarck, North Dakota 58502–5520 Washington (State Form), Underground
Northern Mariana Islands (EPA Form), Storage Tank Notification, Solid and Haz-
Chief, Division of Environmental Quality, ardous Waste Program, Department of
P.O. Box 1304, Commonwealth of Northern Ecology, M/S PV–11, Olympia, Washington
Mariana Islands, Saipan, CM 96950, Cable 98504–8711, 206/459–6316
Address: Gov. NMI Saipan, Overseas Oper-
West Virginia (EPA Form), Attention: UST
ator: 6984
Notification, Solid and Hazardous Waste,
Ohio (State Form), State Fire Marshal’s Of-
fice, Department of Commerce, 8895 E. Ground Water Branch, West Virginia De-
Main Street, Reynoldsburg, Ohio 43068, partment of Natural Resources, 1201
State Hotline: 800/282–1927 Greenbriar Street, Charleston, West Vir-
Oklahoma (EPA Form), Underground Stor- ginia 25311
age Tank Program, Oklahoma Corporation Wisconsin (State Form), Bureau of Petro-
Comm., Jim Thorpe Building, Oklahoma leum Inspection, P.O. Box 7969, Madison,
City, Oklahoma 73105 Wisconsin 53707, 608/266–7605
Oregon (State Form), Underground Storage Wyoming (EPA Form), Water Quality Divi-
Tank Program, Hazardous and Solid Waste sion, Department of Environmental Qual-
Division, Department of Environmental ity, Herschler Building, 4th Floor West, 122
Quality, 811 S.W. Sixth Avenue, Portland, West 25th Street, Cheyenne, Wyoming
Oregon 98204, 503/229–5788 82002, 307/777–7781.
Pennsylvania (EPA Form), PA Department
of Environmental Resources, Bureau of APPENDIX III TO PART 280—STATEMENT
Water Quality Management, Ground Water
FOR SHIPPING TICKETS AND INVOICES
Unit, 9th Floor Fulton Building, P.O. Box
2063, Harrisburg, Pennsylvania 17120 NOTE. A Federal law (the Resource Con-
Puerto Rico (EPA Form), Director, Water
servation and Recovery Act (RCRA), as
Quality Control Area, Environmental
amended (Pub. L. 98–616)) requires owners of
Quality Board, Commonwealth of Puerto
Rico, Santurce, Puerto Rico, 809/725–0717 certain underground storage tanks to notify
Rhode Island (EPA Form), UST Registration, designated State or local agencies by May 8,
Department of Environmental Manage- 1986, of the existence of their tanks. Notifica-
ment, 83 Park Street, Providence, Rhode tions for tanks brought into use after May 8,
Island 02903, 401/277–2234 1986, must be made within 30 days. Consult
South Carolina (State Form), Ground-Water EPA’s regulations, issued on November 8,
Protection Division, South Carolina De- 1985 (40 CFR part 280) to determine if you are
partment of Health and Environmental affected by this law.
Control, 2600 Bull Street, Columbia, South
Carolina 29201, 803/758–5213
534
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